Rizwan Ali Dodani, J.--This Criminal appeal is directed against the judgment dated 22.5.2009 delivered by the learned Additional Sessions Judge, Panjgoor, whereby the appellant was convicted and sentenced as under: Under Section 302-B PPC sentenced to death. The accused was further ordered to pay Rs, 200,000/- to the .legal heirs of deceased Karim Jan as compensation as provided under Section 544-A of Cr.P.C.
2. The facts of the case as per FIR No, 135/2006 are that on 16.10.2006, at about 7.30 a.m. after Fajar prayer, the complainant Nizam Jan alongwith his father namely Karim Jan, who was working at Airport Panjgoor, were going on their motorcycle driven by the later. When they reached in the area of Damb Irap, two accused persons with muffled faces riding on motorcycle armed with Kalashnikove and T.T. Pistol stopped them and asked to hand over the motorcycle. On refusal from his father the accused persons grabed him upon which complainant intervened and one of the accused fired upon the complainant with pistol which hit him on both the feet and he fell down.
Thereafter, the accused persons fired at the complainant's father with Kalashnikove and pistol, which hit on his head and leg and he also fell down. Later on, father of complainant succumbed to the injuries and died at the spot.
The occurrence was got registered by the complainant with Police Station Panjgoor as crime Report No, 135/2007 under Sections 302, 324 read with Section 34-PPC against unknown accused persons.
3. After registration of the case, arrest of the appellant/accused was made on 9-11-2008.
Investigation was carried out and report under Section 173 Cr.P.C. was submitted against the accused/present appellant for trial.
4. The learned trial Judge formally charged the accused/present appellant under Section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to which the accused pleaded not guilty and claimed trial.
5. During the trial, the prosecution in order to prove its case, examined as many as nine (9) witnesses. It may be mentioned at the outset that all the witnesses had earlier also appeared before the trial Court during the trial of a co-accused namely Abdullah who was acquitted vide judgment dated 25-3-2008 while the case of present appellant/convict was ordered to be kept dormant as he was not arrested till then. The prosecution witnesses were recalled, when the trial of present appellant/convict was started by the trial Court, on his having been arrested. All the witnesses of the prosecution had reiterated and reaffirmed their respective statements, which they got recorded earlier during the trial of co-accused Abdullah and did not get recorded their Examination-in-chief afresh. However, PW-3/ Hazoor Bakhsh and PW-10/Javed Ahmad, Investigation Officer further added some facts to their examination-in-chief regarding the role of present appellant in the occurrence.
6. PW-1/Nizam Jan, who is complainant of this case, reiterated the version given in his Fard-e- Beyan Ex. P/1-A on the basis whereof the FIR Ex. P/1-B was registered. PW-2/ Haji Nawab, who reached at the spot immediately after hearing the noise of gun shot, had appeared as the witness of recovery memo Ex. P/2-A and P/2-B regarding empties and blood-stained earth. PW-3/Hazoor Bakhsh is the witness of Ex. P/3- A with regard to blood stained clothes of deceased which were taken into possession by S.I. Abdul Qadir. The second statement of this PW was about an extra- judicial confession made by the appellant Mullah Arif before. Police Officer in the Police Station on 21.11.2008 when PW-3 went to Police Station alongwith Basheer Ahmad. According to PW-3 the present appellant stated that he had also sustained injury on his shoulder of gun shot fired by the complainant/ PW-1 Nizam Jan from his gun. PW-4/Basheer Ahmad, who only appeared in the case of co-accused Abdullah, deposed that on 19.8.2007 he went to police station where the identification parade of co-accused Abdullah was conducted in his presence. The police prepared the identification parade memo Ex. P/4-A, whereupon he identified his signature. He was, in fact, not produced during the trial of present appellant as witness. PW5/Attaullah, Constable, deposed that on 7.8.2007 he alongwith Fida Ahmad, constable and Javed Ahmad, I.O. were present in investigation room of police station, when co-accused Abdullah made a confession before them about the crime which he committed alongwith appellant/convict Mullah Arif on 16.10.2006. PW- 6/Ali Jan, Constable, is the witness of pointation of place of occurrence by co-accused Abdullah.
He did not say anything about appellant/convict. PW-7/Dr. Ehsan Ahmed, Medical Officer examined appellant Mulla Arif on 7.3.2009 and issued MLC Ex. P/7-A, with regard to his injury on shoulder. PW-8/Dr. Sadiq, Medical Officer deposed that on 16-10-2006 at about 8.00 a.m., he examined the dead body of Karim Jan son of Allah Bakhsh and issued MLC Ex. P/8-A. PW-9/Abdul Qadir, SI, stated that on 19.10.2008, the investigation of this case was entrusted to him and he is the first investigation officer, who had investigated this case. PW-10/Javed Ahmed, ASI, is the last investigation officer, as investigation was entrusted to him on 19.6.2007.
7. After conclusion of the trial, the accused was examined under Section 342 Cr.P.C. He denied all the allegations of the prosecution leveled against him in the evidence. However, he neither opted to record his statement on oath as provided under Section 340(2), Cr.P.C. nor produced any evidence in his defence.
8. The learned trial Court, after hearing the learned counsel for the parties and assessing the evidence on record, convicted and sentenced the appellant/accused as mentioned in opening para of this judgment.
9. We have heard the learned counsel for both the sides, examined the evidence and scanned the impugned judgment with their able assistance.
10.Learned counsel for the appellant/Mr. Shams-ur-Rehman, Advocate has raised the following points:-- (i)The FIR was not lodged by the complainant PW-1.
(ii)No idea Noification parade was conducted.
(iii)Identification parade of co-accused Abdullah was conducted but he was acquitted of the charge by the learned trial Court in its judgment dated 25.3.2008.
(iv)No recovery was effected from the appellant or either himself on his pointation.
(v)Disclosure as well as pointation of the place of occurrence was made after two years of occurrence.
(vi)The place of occurrence was previously known to the police hence pointation had no legal effect.
(vii) Co-accused Abdullah was acquitted of the same charge as well as evidence.
(viii) Charge was not framed under Section 302(b) PPC.
(ix)Evidence recorded in the case of co-accused Abdullah could not be used against the appellant but the same has been done by the learned trial Court while convicting him.
(x)Evidence of PWs contained contradictions and improvements.
(xi)The signature of PW/4 Basheer Ahmad on recovery memo and pointation memo are different from each other.
(xii) There are many contradictions between the FIR as well as the alleged disclosures.
(xiii) According to the FIR the accused were muffled faces and the complainant could not identify them at the time of occurrence nor he identified the accused.
(xiv) This is a case of no evidence.
11.Learned counsel for the appellant relied upon the following case laws to substantiate his arguments, 2000 PCI.LJ page-2064, 2001 P. Cr.LJ page-86,1992 SCMR page- 2088 and PLD, 1985 FSC page-20.
12.Learned counsel for the State supported the impugned judgment. However, he candidly submitted that the impugned judgment did not equip with sound reasoning and as such, awarding sentence of Death was uncalled for.
13.The only eye-witness of the incident was complainant/PW-1 Nizam Jan, who also got injured in the occurrence but according to him, the accused persons had muffled-their faces, therefore, he could not see their faces. However, he had stated that he could identify them from their body structure but surprisingly, identification parade was not carried out for the reasons best known to the prosecution. Even-otherwise, in the given circumstances, the margin of reliability of such identification would have been very doubtful. The statement of the complainant at the most is supportive of the fact that the alleged occurrence did take place. The other star witness of prosecution was Hazoor Bakhsh, who was produced as PW-3 at the trial. The perusal of his testimony depicts very peculiar aspect of the case as his whole statement is actually a narration of what he had heard from the mouth of the appellant/convict while the later was confessing his guilt before the police officials in the police station. In our view, the confession made by the appellant/convict before the police officials in their custody is inadmissible under the law i,e, Article 39 of Qanun-e-Shahadat Order 1984 accordingly to which, the confession made by accused while in police custody not to be proved against him. However, it is strange to observe that the learned trial Court has relied upon this piece of evidence while awarding death penalty to the appellant, which is, undoubtedly a weakest type of evidence, being a retracted extra-judicial confession. The perusal of whole evidence produced by the prosecution in this case shows that the nexus of the present appellant with the alleged crime has been made on two points, one as discussed above i,e, an extra-judicial confession and the other, existence of an old injury found on the shoulder of the appellant/convict. The significant aspect of the second point is that the same has also been derived from the first point i,e, extra-judicial confession of the appellant/convict wherein he had stated that during the commission of robbery, there was an exchange of firing between both the sides and the gun shot fired by the complainant had hit his shoulder. Therefore, when the appellant/convict was arrested after two years of the incident and found with the said injury on his shoulder, the prosecution got him examined by Dr. Ehsan Ahmad, Medical Officer PW-7 who opined that the injury was the result of gun shot and about 2 years old. The prosecution in this way purportedly identified the appellant/convict through this injury being involved in the crime. This piece of evidence has also been very much relied upon by the trial Court. It has been observed that this factum of exchange of firing between the culprits and the complainant has not been stated anywhere by the complainant in the FIR on his statement during the trial, therefore when this fact has only been stated by appellant/convict, it could not be considered and made basis for recording his conviction. In these circumstances, when no substantive evidence and probable proof is available on record with regard to the involvement of the appellant, in the commission of the crime, then the factor of mere pointation of place of occurrence by the appellant, has no worth.
Even otherwise, as rightly argued by the counsel that the appellant was arrested after two years of the occurrence, till then, the place of occurrence v as known to tai police because it was already pointed out by the c. J-accused, as such, it lacks admissibility as it was not the disclosure of a new fact as required under Article 40 of Qanun-e--Shahadat. It may be mentioned here that the co- accused Abdullah has been acquitted by the trial Court relying on same set of evidence.
14. In the light of what has been discussed above, we are of the view that it was a case of no evidence. The prosecution has miserably failed to bring home guilt of the appellant/convicted accused beyond doubt. Needless to mention here, that benefit of doubt is always to be given to an accused. Hence, the impugned judgment is not sustainable under the law. Resultantly, the conviction recorded and sentence awarded to the present appellant by the learned trial Court vide judgment dated 22-5-2009 are set aside.
15.Consequently, Criminal Appeal No, 10/Q of 2011 (Mullah Arif alias Arro Versus The State) is accepted. The appellant is acquitted of the charge. The appellant shall be released forthwith, if not required in any other case.
16.Criminal Murder Reference No, 2/Q of 2011 (The State Versus Mullah Arif alias Arro) is answered in negative and not confirmed.
These are the reasons for our short order dated 12-06-2013.