KHALID @ KHALIDI and 2 others vs THE STATE

' IJAZ AHMAD CHAUDHRY, J.---This criminal appeal has arisen out of Jail Petition No,178 of 2009 filed by Khalid alias Khalidi and two others against the judgment dated 29-1-2009 passed by the learned Lahore High Court whereby a learned Division Bench while maintaining the conviction of the appellant altered their sentence from Death to Imprisonment for Life each with benefit of section 382-B, Cr.P.C. The amount of compensation and fine as ordered by the learned trial court was maintained.

2. In the present case the incident took place at 2-00 a.m. On 20-1-2001 within the area of Behram Pur at a distance of 2 kilometers from Police Station Sadar Pakpattan. Brief facts of the case as per statement of Muhammad Shaban, complainant, are that he was cultivating the land adjacent to tube well of Karim Bakhsh in Mauza Behram Pur on lease basis. During the night in between 19/20- 1-2001 he was irrigating his wheat crop and at about 12:00 night after irrigating his crop he slept in a room of Ahata adjacent to the house of his father-in-law, Karim Baldish. At about 2:00 midnight, three persons out of whom two were armed with firearm weapons and the third having a So to in his hand came there, awoke 'him up and asked him to get opened the door of house of Karim Bakhsh. Due to fear the complainant accompanied the aforesaid persons and when they reached at the main gate of house of Karim Bakhsh he saw three other persons present there out of whom two were armed with firearm weapons whereas the third was armed with So to. On the asking of accused persons the complainant knocked the door of the house for about 10 minutes continuously. Meanwhile, the accused persons gave beating to the complainant with fist and kick blows. On his hue and cry Muhammad Ashraf son of Karim Bakhsh, brother-in-law of the complainant opened door of the house whereupon all the accused entered into the house where Muhammad Ashraf gave a Sota blow to one of the accused which landed on his head whereupon the accused persons get annoyed and made fire shots which hit on various parts of body of Muhammad Ashraf. After hearing the fire shot reports, Muhammad Altaf, brother-in-law of the complainant and Mst. Jannat Bibi, wife of Karim Bakhsh, attracted there and beseeched the accused to save Muhammad Ashraf. On hearing their hue and cry Muhammad Gulzar son of Karim Bakhsh and Muhammad Ramzan son of Mumtaz attracted to the spot and made Lalkara whereupon the accused persons fled away along with their respective weapons while making ariel firing. The complainant, Muhammad Gulzar and Muhammad Mumtaz P. Ws. Removed the injured persons to Civil Hospital Pakpattan. Muhammad Ashraf succumbed to the injuries whereas Muhammad Altaf was referred to Sahiwal Hospital in injured condition while Mst. Jannat Bibi was admitted in Civil Hospital Pakpattan.

3. Accused persons were charge sheeted under sections 148, 449, 469, 324, 337-F(iii) and twicely under section 302, P.P.C. Read with section 149, P.P.C. Prosecution in order to prove its case produced as many as 15 witnesses. The ocular account was furnished by Muhammad Shaban (P.W.3) and Muhammad Gulzar (P.W.4). Dr. Muhammad Pervaiz conducted postmortem examination on the dead body of both the deceased and also medically examined Mst. Jannat Bibi (injured) and Muhammad' Altaf, injured, who expired later on. Appellants got recorded their statements under section 342, Cr.P.C. However, after conclusion of the trial learned trial Court convicted all the appellants under section 302(b)/34, P.P.C. And sentenced them to death on two counts with direction to pay Rs,50,000 each as compensation on two counts or in default to undergo SI for six months on two counts. Appellants were also convicted under section 460, P.P.C.

And sentenced to ten years RI each with fine of Rs,10,000 each or in default to further undergo SI for three months. The appellants were further convicted under section 449, P.P.C. And sentenced to undergo ten years' RI each and fine of Rs,10,000 each or in default to undergo three months SI. On appeal, the learned Division Bench of Lahore High Court maintained the conviction of the appellants, however, the sentence of death was reduced to Life Imprisonment and the amount of compensation and fine was maintained in to.

4. Learned counsel for the appellants contends that the appellants are not named in the F.I.R.; that description of the accused persons was neither mentioned in the F.I.R. Nor in the statements of.

P.Ws. Recorded by the Police under section 161, Cr.P.C; that it was a midnight occurrence and there is no mention of any source of light in the F.I.R.; that the weapons of offence have not been specified in the F.I.R.; that no specific role has been attributed to the appellants; that no motive was mentioned in the F.I.R.; that even no suspicion was shown against the appellants by the complainant or any of the P.Ws.; that Sultan Mehmood, co-accused of the appellants has been acquitted and the evidence qua his involvement has been disbelieved, as such, the same evidence cannot be relied upon in order to convict the appellants; that the prosecution for the reason best known to it has withheld the evidence of Mst. Jannat Bibi and injured person which has created a dent in the prosecution evidence making it unreliable; that the complainant is resident of a place which is 5/6 kilometers away from the place of occurrence and his presence at that time is also doubtful.

5. On the other hand, learned counsel for the complainant, while opposing this appeal contends that the eyewitnesses .Had no enmity or grudge to falsely implicate the appellants in the commission of offence; that the appellants were rightly identified by the witnesses during the identification parade; that the appellants have committed a heinous crime of murder of two innocent persons and injuring Mst. Jannat Bibi, therefore, conviction and sentence awarded to them by the courts below is liable to be maintained and that the case of the appellants is distinguishable from the case of Sultan Mehmood, acquitted co-accused.

6. Learned Additional Prosecutor-General has also opposed the appeal and prayed for maintaining the conviction and sentence awarded to the appellants by contending that the prosecution has successfully been able to bring home guilt of accused/appellants beyond any reasonable shadow of doubt.

7. We have heard learned counsel for the parties and also perused the record. In the instant case the evidence against the appellants consists of ocular account, medical and identification parade as the evidence of recovery regarding weapons has already been disbelieved by the learned appellate court. The ocular account was furnished by Muhammad Shaban P.W.3 and Muhammad Gulzar P.W.4. The first information report was lodged by Muhammad Shaban P.W.3 wherein he stated that during the night in between 19/20-1-2001 he was irrigating his wheat crop and at about 12:00 night after irrigating his crop he slept in a room of Ahata adjacent to the house of his father- in-law, Karim Bakhsh. At about 2-00 a.m. (midnight), three persons out of whom two were armed with firearm weapons and the third having a So to in his hand came there, awoke him up and asked him to get opened the door of house of Karim Bakhsh. Due to fear the complainant accompanied the aforesaid persons and when they reached at the main gate of house of Karim Bakhsh, he saw three other persons present there out of whom two were armed with firearm weapons whereas the third was armed with Sota. On the asking of accused persons the complainant knocked the door of the house for about 10 minutes continuously. Meanwhile, the accused persons gave beating to the complainant with fist and kick blows. On his hue and cry Muhammad Ashraf son of Karim Bakhsh, brother-in-law of the complainant opened door of the house where after all the accused entered into the house where Muhammad Ashraf gave a Sota blow to one of the accused which landed on his head whereupon the accused persons annoyed and made fire shots which hit on various parts of body of Muhammad Ashraf. After hearing the fire shot reports, Muhammad Altaf, brother-in-law of the complainant and Mst. Jannat Bibi, wife of Karim Bakhsh, attracted there and beseeched the accused to save Muhammad Ashraf but during the scuffle Muhammad Altaf and Mst. Jannat Bibi also received fire-arm injuries. The aforesaid narration of facts made by the complainant in the does not depict the names, features or ages of the assailants. Even the weapons used by the assailants during the incident do not find mention in the F.I.R. Except fire-arm weapons and source of light was also not mentioned by the complainant in the F.I.R. As the occurrence had, according to the complainant himself, taken place at 2-00 a.m.

(midnight). No specific injuries were attributed to any of the accused, as such, the complainant made much improvements during the trial which fact casts serious doubt on his testimony. The statement of other eye-witness, namely, Muhammad Gulzar is also oblivious of the names, features of the assailants as also the fire-arm weapons used by them during the occurrence. Even no specific role was attributed to any of the assailants by the said witness. Both the said witnesses had attributed specific roles to the accused persons during their statements before the learned trial court by making improvements, as such, the statements made by both the eye witnesses do not inspire confidence for the reason that Muhammad Gulzar P.W.4 during cross examination admitted that Sultan Mehmood acquitted accused was already known to him before, during and after the occurrence but he neither got mentioned this fact in the F.I.R. Through the complaint nor in the statement made before the police in this respect. He went on admitting that the agricultural land of Sultan Mehmood, acquitted accused, is situated in his Chak adjacent to his land and he did not inform the Magistrate supervising the identification parade that Sultan accused was previously known to him prior to the occurrence. The said witness by making improvements in his statement attributed specific roles to the accused persons during the trial on the plea that he had attributed specific roles to the accused persons in his statement before the police recorded under section 161, Cr.P.C. But on scanning the said statement nothing was found there regarding roles of the accused persons. Both the eye-witnesses are closely related inter se as well as to the deceased.

Muhammad Ashraf and Muhammad Altaf, as such, they are interested witnesses. In such circumstances we are not inclined to accept the statements of both the eye-witnesses as gospel truth for the reasons that there are material contradictions in their statements as there is no other incriminating material available on record which could corroborate their ocular account. The incident in the instant case took place at 2-00 a.m., F.I.R. Was recorded at 4/5 am, Dr. Muhammad Pervaiz medically examined the injured persons at 4-00 a.m. But conducted the post mortem examination of the deceased at 3-00 p.m. i,e, after about ten hours which fact clearly shows that the F.I.R. Was not lodged at the given time. The prosecution has not, for the reasons best known to it, produced Mst. Jannat Bibi, an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported the prosecution version.. We, therefore, find that the ocular account is not of such a character which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye-witnesses at the place and time of occurrence is not established as their statements have been disbelieved by the learned appellate court regarding Sultan Mehmood acquitted accused. Reference is made to the cases reported as Ansar Ali and another v. The State (2010 SCMR 1821), Ghulam Mustafa and others v. The State (2009 SCMR 916) and Iftikhar Hussain and others v. The State (2004, SCMR 1185).

8. As far as other piece of evidence against the appellants i,e, identification parade is concerned, we have noticed that appellants Allah Bakhsh and Ghulam Ahmad were arrested on 12-2-2001 and their identification parade was conducted by Mian Abdul Majid (P.W.9) on 21-2-2001. During the identification parade Allah Bakhsh, Ghulam Muhammad and Sultan Mehmood were identified by P.W.3 and only Sultan Mehmood was attributed specific injury on the back of right shoulder of Muhammad Ashraf whereas the remaining two accused were only attributed indiscriminate firing.

Similarly, the identification parade of Khalid alias Khalidi was held on 8-2-2002 by Muhammad Saleem Iqbal P.W.7 and same role was ascribed to him which was ascribed to other accused except Sultan Mehmood who was ascribed the main role. We are not inclined to accept the Identification Parade as a corroborative piece of evidence as the features of the accused had not been mentioned by the eye-witnesses in their statements before the police. Even otherwise the Identification. Parade loses its veracity when it had been admitted by P.W.4 Muhammad Gulzar while appearing in the Court that Sultan was previously known to the witnesses and also known to Mst. Jannat Bibi who had not been produced. In such circumstances Identification Parade which had not been relied upon qua the involvement of Sultan Mehmood acquitted accused, the same could not had been relied upon against the present appellants as the witnesses had identified the accused who was previously known to them and it had been disbelieved.

9. As far as the medical evidence is concerned, it is only a supportive piece of evidence and can only be considered with reference to the attribution of injuries made by the eye-witnesses but here in this case since the eyewitnesses have not attributed' any specific injury to the appellants, therefore, its corroborative value lost its efficacy.

10. In view of what has been discussed above, we are of the firm view that the evidence in the instant case is not of such a character which could be relied upon to convict a person on a capital charge as the eye-witness account is full of contradictions and doubts, benefit of such contradictions and doubts would definitely go to the appellants. Consequently, while allowing this appeal we set aside the judgments of the courts below and acquit all of three appellants from the charge while extending the benefit of doubt to them. They be set at liberty forthwith if not required in any other case.