' CH. MAHMOOD AKHTAR KHAN, J.--- This judgment will dispose of Criminal Appeal No,42 of 2008 filed by Muhammad Imran and Criminal Appeal No,60 of 2008 filed by Tahir Mehmood who were tried by learned Additional Sessions Judge, Attock in case F.I.R. No,18, dated 19-1-2005 under sections 302, 457, 170, 171, 148, 149, P.P.C. Registered with Police Station Saddar Hassan Abdal District Attock and were convicted and sentenced to imprisonment for life with further direction to pay a sum of Rs,1,00,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Mir Afzal, in default thereof, they were ordered to undergo six months' S.I. Each. They were further convicted under section 170, P.P.C. And sentenced to undergo two years' R.I. Each with a fine of Rs,5,000 each, in default thereof, they were ordered to further undergo S.I. For two months each.
The appellants were also convicted under section 171, P.P.C. And sentenced to undergo for three months' R.I. With a fine of Rs,5,000 each, in default thereof, they were ordered to undergo for one month's S.I. Each. They were further convicted under section 457, P.P.C. And sentenced to undergo for five years' R.I. With a fine of Rs,10,000 each, in default thereof, they were ordered to further undergo for two months' S.I. Each. The appellants were also convicted under section 148, P.P.C. And sentenced to undergo for three years' R.I. Each with a fine of Rs,10,000 each, in default thereof, they were ordered to further undergo for two months' S.I. Each. All the sentences were ordered to be run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to the appellants. The remaining accused were acquitted of the charge against them.
2. The prosecution story as narrated by the complainant Haider Zaman in his complaint Exh.P.H.
Which was reduced into formal F.I.R. Exh.P.H./1 was to the effect that on 19-1-2005 at about 8-00 p.m. He along with his family was present in the house, when they heard noise of knocking at the main gate. The complainant opened the door and saw 10/12 persons in police uniform along with two women, who were wearing plain clothes. The complainant inquired that any of them was official of Police Station Hassan Abdal, one of the accused, who was in police uniform replied that they had come from Rawalpindi to arrest Masood. The complainant asked them what was the complaint against Masood, one of the accused asked them for search of the house. When they were disallowed for search of the house, one of the accused fired a shot with .30 bore pistol, then all the accused started firing from four corners of the house. On hearing fire shots, Mir Afzal son of Bostan maternal-cousin of the complainant came to the house of complainant and was fired at by the accused, who succumbed to the injuries at the spot. Thereafter, the accused fled away from the place of occurrence.
3. P.W.14 Mehdi Khan S.-I./Investigating Officer on receipt of information about the occurrence went to the spot, where he recorded statement of Haider Zaman complainant Exh.P.H. And sent the same to the police station for registration of formal F.I.R. The investigator inspected the spot, took into possession dead body of the deceased Mir Afzal prepared injury statement Exh.P.B. And inquest report Exh.P.B./1 and sent the dead body of the deceased for post-mortem examination to T.H.Q.
Hospital, Hassan Abdal. He also took into possession blood-stained earth from the place of murder of the deceased vide memo. Exh.P.D. The witness also took into possession 17 crime-empties P.4/1- 17 vide memo. Exh.P.E. He recorded the statements of witnesses under section 161, Cr.P.C. On 20-1- 2005. The Investigating Officer took into possession last-worn clothes of the deceased vide memo.
Exh.P.C. The witness recorded statement of Haider Zaman complainant under section 161, Cr.P.C.
And prepared rough site plan Exh.P.M.
4. Thereafter Inspector Raja Sabir Hussain P.W.13 partly investigated the case. He arrested the accused and on their disclosure, recovered police uniform vide memos. Exh.P.F., Exh.P.G. And Exh.P.J.
After completion of codal formalities. Muhammad Imran (appellant) Mst. Asima Kazmi, Mst.
Rukhsana Bibi, Ejaz, Nisar, Safeer and Tahir Mehmood-appellants were challaned to the Court.
However, Khalid Mehmood and Faisal accused were murdered and Yasin accused was died, whereas, Muhammad Ashraf accused was declared as proclaimed offender.
5. At the trial, prosecution in order to prove its case, examined as many as 14 witnesses in all. Dr. Syed Zahid Akhtar M.O. D.H.Q. Hospital Hassan Abdal conducted post-mortem examination on the dead body of Mir Afzal deceased on 20-1-2005 and found three lacerated wounds on the dead body of the deceased. The ocular account was furnished by Mst. Mehboob Sultana P.W.11 and Babar P.W.12 respectively. Raja Sabir Hussain Inspector P.W.13 and Mehdi Khan S.-I. P. W.14 had given, the details of investigation conducted by them. Learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.O. And closed the evidence of prosecution. The accused in their statements under section 342, Cr.P.C. Pleaded their false implication in the case and professed their innocence. The appellants did not opt to make statements under section 340(2), Cr.P.C. The learned Court after conclusion of trial convicted and sentenced the appellants as stated above.
Hence, the appellants filed separate appeals against conviction and sentence awarded to them.
6. Muhammad Bashir Peracha, learned counsel for Muhammad Imran appellant in Criminal Appeal No,42 of 2008 and Syed Ali Shah Bokhari, learned counsel for appellant Tahir Mehmood in Criminal Appeal No,60 of 2008 have contended that case against the appellants is of no evidence as that complainant namely Haider Zaman and the only eye-witness mentioned in the F.I.R. Namely Masood son of the complainant did not appear in the trial Court as eye-witness of the occurrence and that P.W.11 namely Mehboob Sultana wife of Haider Zaman and P.W.12 Babar Khan son of Mir Afzal deceased appeared as eye-witnesses in the trial Court were not cited as eye-witnesses of the occurrence in the F.I.R. They further contended that learned trial Court based its decision on the evidence of P.W.11 and P.W.12 as they also identified the appellants in the test identification parade.
The test identification parade was not carried out according to the rules and orders laid down by the Honourable High Court. It is also contended that statements of said P.Ws. Under section 161, Cr.P.C. Were recorded on 20-5-2005 while the occurrence had taken place on 19-1-2005. They further contended that neither the names of the appellants nor their feature or description was mentioned in the F.I.R. They further contended that recovery of police uniform from the appellants had no consequence for the decision of the case against the appellants as P.W.11 and P.W.12 attributed no role to the appellants played by them during the occurrence. It was further contended that site plan prepared by the Investigating Officer is against the statements of above and prayed for their acquittal.
7. In response to the submissions made by learned counsel for the appellants, learned D.P.-G.
Submitted that eye-witnesses P.W.11 and P.W.12 are resident of the house of complainant and house of the deceased who saw the occurrence and duly identified the appellants in test identification parade and that there is no ulterior motive or enmity to them for involving the appellants falsely in the commission of murder of Mir Afzal deceased. He further contended that recovery of police uniform from the appellants is strong corroborative piece of evidence to connect them with the commission of offence. Lastly, he supported the impugned judgment of learned trial Court.
8. I have given my anxious consideration to the respective contentions of learned counsel for both the appellants and learned D.P.G. And have also perused the available record minutely with their assistance. In the F.I R. Occurrence was witnessed by Haider Zaman complainant and his son Masood. The purpose of commission of occurrence was to abduct or to took along Masood son of Haider Zaman and nothing else. Names of P.W.11 Mehboob Sultana and P.W.12 Babar Khan were not mentioned in the F.I.R. Or in the supplementary statement of the complainant thereafter. Both the P.W.11 and P.W.12 appeared before the Investigating Officer for the first time on 20-5-2005 after the lapse of four months without any explanation for that P.W.14 Mehdi Khan Inspector/Investigating Officer, who investigated the case, made a statement in the Court that investigation remained with him till 17-2-2005. Till that time no other person claiming himself/herself as an eye-witness ever appeared before him except Haider Zaman and Masood mentioned in the F.I.R. As far as identification of appellants by P.W.11 and P.W.12 is concerned test identification parade for Muhammad Imran appellant was conducted on 6-6-2005 and for Tahir Mehmood appellant on 16-12-2005. Names, features or description of the appellants were not mentioned in the F.I.R. Or in the statements of P.W.11 and P.W.12 recorded under section 161, Cr.P.C. During test identification parade no role in the crime as individual was, ascribed to the appellants by the P.Ws. Therefore, the value of identification parade was reduced to naught. In the above context it is further held that principle of identification is evidence of a witness given in the Court to the effect that as to how and under what circumstances he came to pick out a particular person and details of the part which that accused played in the crime and that the statement made by such a witness at the time of identification parade might be used to corroborate the evidence in Court as otherwise, it would be hearsay except to the simple fact that the witnesses were in a position to show that he knew certain accused persons by sight. Reliance could be placed in the case of Ghulam Rasool and 3 others v. The State 1988 SCM R. 557, it was held that since P.Ws. Had not described their role played by each of accused person at the time of commission of offence, therefore, the evidence of identification had lost its efficacy and could not have been relied upon. Moreover P.W.11 and P.W.12 while making statements in the Court also not attributed any individual role to the appellants played by them during occurrence. In this respect Siraj-ul-Haq and another v. The State 2008 SCM R 302 is also relevant as P.W.11 and P.W.12 for the first time appearcl before the Investigating Officer and recorded statements under section 161, Cr.P.C. After the lapse of four months without any plausible explanation in spite of the fact that P.W.11 is the wife of complainant Haider Zaman and P.W.12 is son of Mir Afzal deceased. When statements of such-like witnesses unearthed for the first time with a considerable delay and also describing no individual role of the appellants in the occurrence in suchlike eventuality the statements of such-like witnesses could not be made basis of conviction. Reliance could be placed on Muhammad Yasin alias Raja v. The State and other 2009 SCM R 84. Moreover record shows that during trial P.W.11 and P.W.12 never made statements regarding test of identification parade held on 16-12-2005 when Tahir Mehmood appellant was rightly identified. Mehboob Sultana while appearing as P.W.11 deposed that she was in the compound to her house and that she was informed by the wife and children of the deceased that Mir Afzal deceased sustained fire shots and died. Wife of Mir Afzal was not cited as an eye-witness of the occurrence and P.W.12 Babar Khan had not stated in his statement before the trial Court that he ever informed to Meliboob Sultana P.W.11 about the occurrence. As regards recovery of police uniform from the appellants is concerned, it has no value because no role was ascribed to the appellants individually during the occurrence as mentioned above. No weapon of offence has been recovered from the appellants. Site plan Exh.P.F. Shows that deceased received injury and was done to death at point No,1 which was near the outer gate of the house of the deceased and not near or at the outer gate of the house of complainant Haider Zaman as mentioned in the F.I.R.
Site plan was not prepared at the pointation of any P. Ws. Specially P.W.11 Mehboob 'Sultan and P.W.12 Babar Khan. Presence of P.W.11 and P.W.12 was also not shown in the site plan. Reliance could be placed on Imran Ashraf and 7 others v. The State 2004 SCMR 424.
9. No motive was ascribed to the appellants, no P.W. Mentioned in the F.I.R. Was examined during the trial, alleged P.W.11 and P.W.12 eye-witnesses did not appear before the Investigating Officer soon after the occurrence admittedly inmates of the house of the complainant and deceased without any explanation described no individual role of appellants during the occurrence in test identification parade. No recovery of weapon of offence was effected from them. The result of foregoing discussion is that prosecution has miserably failed to make out a case against the appellants namely Muhammad Imran and Tahir Mehmood. It is well-settled law in the criminal administration of justice, nobody is to be punished unless proved guilty on the basis of reliable evidence and that benefit of reasonable doubt must go to the accused. I, therefore, am inclined to accept these appeals and allow the same. Order accordingly. Consequently, the impugned judgment, dated 30-1-2008 passed by Additional Sessions Judge, Attock is set aside. The appellants are acquitted from charges against them and are set at liberty forthwith if they are not required in any other case.