'SYED IHTASHAM QADIR SHAH, J.---Abdul Rehman son of Ghous Muhammad and Abdul Aziz son of Shah Nawaz had been charged and tried by the learned Sessions Judge, Khushab, for the Qatl-e- amd of Imam Bakhsh son of Muhammad Zaman, arising out of case F.I.R. No,234 dated 30-6-2002 registered under sections 302, 392, 412, P.P.C. At Police Station Jauharabad.
2. The learned trial Court charge-sheeted both the above-stated accused persons as under:-- "1. That on 30-6-2002, at about 9-30 p.m. In the area of Mauza Hamoka Morr, P.S. Jauharabad, you, Abdul Aziz and Abdul Rehman accused, while travelling in Hiace Pick up No,7001-KB along with other passengers, while armed with. 30 bore pistols got stopped the said vehicle on a Kham passage, by sharing your common intention and forcibly snatched Rs,1000 from the complainant Muhammad Mushtaq (driver), Rs,250 from Muhammad Yousaf, conductor, thus you committed an offence punishable under section 392/34, P.P.C.
2. That on the same day, time and place you also demanded money forcibly from Imam Bakhsh passenger and on his refusal one of you made fire with pistol. 30 bore at front of his chest with intent to kill him as a result of which he was seriously injured and died while reaching at the hospital thus you committed an offence punishable under section 302/34, P.P.C."
3. The prosecution examined 14 witnesses whereas the appellants examined in defence two witnesses, whereafter, the learned trial Court while juxta-posing the whole evidence vide judgment dated 24-6-2003 convicted and sentenced both of them as under:-- 'ABDUL REHMAN 'Under section 302(b)/34, P.P.C, sentenced of 'Death' as Tazir and to pay Rs,50,000 as compensation under section 544-A, Cr.P.C, or in default whereof to further undergo six months' S.I. Under sections 392/34, P.P.C., sentenced to undergo R.I. For 7 years' with a fine of Rs,10,000 or in default to further undergo S.I. For 3 months. ABDUL AZIZ 'Under section 302(b)/34, P.P.C, sentenced imprisonment for life.
'Under section 392/34, P.P.C, sentenced to 7 years' R.I. And to pay fine of Rs,10,000 or in default to further for 3 months.
'Also awarded the benefit to section 382-B, Cr.P.C. Both the sentences shall run concurrently.
4. Feeling aggrieved both the appellants had challenged their conviction and sentence through joint Criminal Appeal No,399-J of 2003 whereas the complainant has filed Criminal Revision No,812 of 2003 for enhancement of sentence. The learned trial Court has sent Murder Reference No,427 of 2003 for confirmation and sentence of death or otherwise. We propose to dispose of all these matters through this single judgment.
5. The above unfortunate occurrence took place on 30-6-2002 at 9-30 p.m. I within the area of Chak No, 45 AMB situated at a distance of 10 Kilometers from, Police Station Jauharabad District Khushab. Muhammad Mushtaq son of Muhammad Sher, P.W.9 appeared in the police station and got recorded his statement Exh.PL wherein he stated as under: "On 30-6-2002 at 8-30/8-45 p.m. I was driving my Hiace Wagon bearing No,KB-7001 and from Jauharabad was going to Noorpur Thai with passengers. Muhammad Yousaf was my conductor.
Ghulain Qadir and Imam Bakhsh (deceased) were also present in the vehicle as passengers. When at about 9-30 p.m. I reached about one furlong ahead Hamoka Morr, both the accused present in Court stood up from the front seat, both were armed with pistols. Abdul Rehman accused placed his pistol on my head and said to turn the vehicle on the Katcha path and took me on the said path about a furlong and the accused asked me to hand over to them my belongings. An amount of Rs,1100 was taken by them from me. They also searched other passengers and had been snatching money from them. When they demanded money from Imam Bakhsh, a passenger, he resisted and refused to pay any money to them upon which both the accused Erst gave slaps to him and then Abdul Rehman made fire at Imam Bakhsh with his pistol which hit on front of his chest. An amount of Rs,200/250 was also snatched by the accused from Muhammad Yousaf conductor. Mobile telephone set and some money was snatched by them from Ghulam Qadir too and then the accused fled away towards jungle. I took Imam Bakhsh in injured condition to Civil Hospital Jauharabad but in the meantime he had died. I left Ghulam Qadir and* Muhammad Yousaf with the dead body, who both had witnessed the occurrence and then I went to police station and lodged, F.I.R. Exh.PL which was read over to me and signed the same in token of its correctness."
6, The above statement of complainant shows that this unfortunate occurrence took place in abandoned area inside a bus which was being driven by Mushtaq complainant, P.W.9. The matter was interrogated by Asmat Ullah,, Sub- Inspector, P.W.13 who on 10-8-2002 on receiving information arrested both the appellants from sugar-mills crossing Jauharabad, whereafter, he made an application for identification parade before Illaqa Magistrate which was held on 17-8-2002 Muhammad Iram Ayyaz, P.W.8 conducted the above identification parade. On 24-8-2002 Abdul Aziz during physical remand disclosed and led to the recovery of .30 bore pistol P.4 from the Dera of Allah Yar Which was taken into possession vide memo. Exh.PH, whereafter Abdul Rehman while on physical remand made disclosure and led to the recovery of Pistol. 30 bore P.5 from his residential 'Khota' which was taken into possession vide memo. Exh.PJ. It is also on the record that from the above box wherefrom weapon of offence was recovered, Investigating Officer also got recovered an amount of Rs,2150 consisting of 20 currency notes of Rs,100 P.7/1-20 three currency notes of Rs,50 P.8/1-3 and one telephone set P.6.
7. The prosecution to prove the charge against i.e, appellants examined Muhammad Mushtaq, P.W.9 (driver), Muhammad Yousaf, P.W.10 (conductor) Ghulam Qadir, P.W.11 and Bashir Ahmad, P.W.12 witness of extra judicial confession. Muhammad Iram Ayyaz, Magistrate section 30, P.W.8 appeared and deposed about the identification parade proceedings.
8. The learned DDA after tendering the reports of Chemical Examiner Exh.PN and that of Serologist, Exh.PN closed the prosecution evidence on 29-4-2003.
9. Both the appellants were examined under section 342, Cr.P.C. Abdul Rehman deposed as under "The description given by the complainant the F.I.R, and by the P.Ws, in their statement under section 161, Cr.P.C, in no way tally my features since I was having a beard since my adulthood. I was also earlier shown to the P.Ws, in the police station before the alleged identification parade 'and this fact was told by me to the learned Magistrate.
'The recovery proceedings are fake. In fact Asmat Ullah, S.-I. Was inimical towards me and my family and he had planted all the alleged recovered articles against me of his own to strengthen the prosecution case against me moreover, brother- in-law Yar Muhammad and 4 brothers of said Yar Muhammad were murdered in the year 2001 and the alleged place of recovery belongs to the accused of said murder case and for this reason I could not even visit the said Dera situated in Mauza Chinki. All proceedings in this respect are fabricated and fake.
'The P.Ws, were not present at the time of occurrence. The whole case was cooked against me by Asmat Ullah, S.-I, due to his enmity with my relations and the P.Ws, have made tutored and statements against me in order to strengthen the prosecution case. I have been made scapegoat.
In this case."
'Appellant Abdul Aziz made identical and similarly reply, however, they examined Alam Sher. Head Constable as D.W.l and Nasir Abbas Moharrar, as D.W.2.
10. Dr. Zafar Iqbal, P.W.4 conducted the post-mortem examination on the dead body and found the fire-arm entrance wound in left second intercostals space size 1 c.m. In diameter with gun powder blackening of the skin and corresponding holes in clothes. The above injury was ante-mortem, homicidal and by fire-arm which caused served and sudden damage to heart. In his opinion, this injury was sufficient to cause death in ordinary course of nature.
'Probable time that elapsed between injury and death, was immediate and between death and postmortem was 6 to 12 hours.
11. The learned trial Court after examining the evidence on record vide judgment dated 24-6-2003 convicted and sentenced the appellants mentioned above.
12. The learned counsel for the appellant submits that the prosecution has failed to bring on record any sufficient reliable evidence to sustain the conviction and sentence of the appellants. The identification parade has not properly been conducted, the same is violative of legal provision as well as procedure that the description mentioned in the F.I.R. About the assailants does not tally with the description and antecedents of the appellants. The P.Ws. Appeared during trial failed to pick up or identify both the appellants as assailants of the present case, therefore, their conviction and sentence is liable to be set aside. On the other hand, learned counsel for the complainant assisted by learned Deputy Prosecutor-General vehemently opposed the above assertions of learned counsel for the appellants on the ground that sufficient material evidence has been brought on record by the prosecution which clearly connects the appellants with the heinous crime; that independent witness i.e, driver, conductor and a passenger have deposed with all their fairness, therefore, their evidence is reliable and confidence inspiring, thus, they supported the judgment of learned trial Court.
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record.
14. It is highly unfortunate that an innocent passenger had lost his life for unjustified brutal act of assailants at the relevant time of occurrence. It is the case of the prosecution that both the appellants were arrested on 10-8-2002 and the identification parade was held on 17-8-2002 as stated by Muhammad Imam Ayyaz, Magistrate section-30, P.W.B. Both the appellants while deposing under section 342, Cr.P.C. Categorically objected that they were shown to the P.Ws. In the police station to the identification parade. We have gone, through the statement of Magistrate, P.W.8 who also endorsed this fact as under:-- "It is correct that both the accused had raised objection before me at that time that they were got identified and shown to the witnesses at the police station, prior to identification parade."
16. The learned counsel for the complainant has vehemently stressed on the fact that the driver, P.W.9 and conductor, P.W.10 are independent witnesses, their evidence should be given special weight on the ground that in such like gruesome heinous offence, their appearance is courageous and appreciable. We are fully in agreement with the arguments advanced by the learned counsel for the complainant but we have to weight and scale their evidence in a golden scale with the settled principle of safe administration of criminal Justice with legal process of appreciation of evidence. Muhammad Mushtaq, P.W.9 which is driver of Hiace Wagon bearing No,KB-7001 has specifically deposed during the trial that he had not named any accused in the F.I.R. He categorically stated that he had firstly suspicion against one Nasar Hayat son of Matta Certain relevant portions of his depositions are being reproduced for proper appreciation as under:-- "It is correct that on 8-7-2002 I had firstly placed suspicion upon said Nasar Hayat son of Matta. My version was that it was he who had got boarded the said assailants in the wagon and it was he who knew, who they were. It is correct that earlier Sibtain and Tariq Mehmood were arrested by the police during investigation on the pointing of and disclosure of said Nasar Hayat. I do not know that said Muhammad Sibtain was already involved in 8 cases of dacoity of Highways. I do not know that case F.I.R. No,2, dated 12-1-2002 under section 392, P. P. C , PS Jauharabad, case F.I.Rs, Nos. 59, 66 and 71 of 2001 of Highway dacoity were also registered against him at P.S. Katha Saghral. Police had taken their physical remand. I do not know that later on we patched up the matter with them and accordingly discharge report was prepared by police which was presented to the Area Magistrate but he did not agree with it.
'It is correct that Abdul Rehman accused present in Court is having beard. It is correct that he was employed in Rangers earlier and was discharged from service. Photo-copy of his dismissal certificate shown to me today from accused side is bearing photograph of Abdul Rehman in which he is having beard. In the F.I.R. I did not mention that any of the assailants was having a beard at the time of occurrence. It is correct that the descriptions mentioned by me about the assailants was not of the accused present in Court."
17. The above resume shows that initially in this case certain other accused were apprehended and they were substituted through present appellants. From the A perusal of above evidence it creates serious doubt that this witness during trial why replied evasively that I do not know that later on we patched up the matter with the above-stated accused Sabtain and Tariq Mehmood. This reply clearly reflected that this witness was playing in the hands of Investigating Officer who in a clandestine manner substituted two accused, namely Muhammad Sibtain and Tariq Mehmood who were involved in a number of criminal cases of robbery and dacoity hence the above resume casts serious doubt about the involvement of the present appellants in the above unfortunate incident.
18. P. W.9 Muhammad Mushtaq further deposed during trial as under:-- "It is correct that Abdul Rehman accused present in Court is having a beard. It is correct that he was employed in Rangers earlier and was discharged from service. Photo-copy of his dismissal certificate shown to me today from accused side is bearing photograph of Abdul Rehman in which he is having a beard. In the F.I.R. I did not mention that any of the assailants was having a beard at the time of occurrence. It is correct that the descriptions mentioned by me about the assailants was not of the accused present in Court."
19. We have examined the whole evidence with great care and caution. Abdul Rehman appellant has categorically stated that he is having beard since his youth. His service documents also indicate that he is a person having beard. It is a hard fact that Mushtaq P.W. During trial conceded that the description mentioned by him about the assailants in the F.I.R. Was not of the accused present in the Court, it leaves no room for us to believe that it is the Investigating Officer who dishonestly patched up the matter with the offenders who were initially arrested and were involved in many B criminal cases like such nature, thus, he in a clandestine manner substituted the present appellants in this case.
20. The learned counsel for the complainant has strongly stressed on the argument that both the appellants were identified during identification parade, thus, their conviction and sentence is based on legal evidence. It is true that Mushtaq and other P.W. Have rightly identified and picked out the appellants during identification parade with their specific role but mere picking out in the identification parade is not sufficient substantive evidence but the same is merely corroboration of the fact that the witnesses had picked them out. This piece of evidence is not sufficient because the real test is the identification of the accused in the Court at the time when the witnesses are testifying. As already discussed, Mushtaq, P.W. Was failed to identify the appellants during trial while deposing against them. Even otherwise, we have noted certain violation of procedure by the Magistrate during proceedings of identification parade therefore we are of the view that the evidence of identification parade is not of that quality to be relied upon for a punishment on capital charge.
21. Prosecution has attempted to bring on record some other piece of evidence in the shape of last seen and extra-judicial confession. Now we discussed it, Bashir Ahmad P.W.12 is the witness of extra judicial confession. Although at the trial prosecution has attempted to show that the accused persons approached him with an interval of 5/10 minutes to make confession but it is hard fact his statement under section 161, Cr . P.0 . Exh. PC speaks otherwise and speaks it as a joint confession which is simply illegal and inadmissible. The evidence of last seen of Muhammad Riaz, P.W.3 is of no consequence, as we have already discarded the other link of extra-judicial confession. Needless to say C that medical evidence or evidence of recoveries could serve any useful purpose or support for prosecution.
22. The upshot of the above discussion is that prosecution has failed to bring on record any quality evidence of confidence inspiring .Or quality. And nature of corroboration to sustain the finding learned trial Court. We are of the firm view that testimony of P. W.9, P. W,10 and P. W .11, with regard to the identification of the appellants at the time of occurrence is not only inconsistent but is highly doubtful. The other piece of evidence of last seen and of extra-judicial confession being evidence could not be relied upon on capital charge due to its inherent defects, therefore, prosecution has failed to prove its cases beyond doubt. Both the appellants are extended the benefit of doubt. The Criminal Appeal No, 399-J of 2003 is accepted. Both the appellants are acquitted.
23. Murder Reference No,427 of 2003 is answered in negative and sentence of Death passed by learned trial Court against the appellants is not confirmed. The appellants are in jail, they shall be released forthwith if not required in any other case.
24. For the foregoing reasons, Criminal Revision No,812 of 2003 is hereby dismissed.