QAZI MUHAMMAD AMIN AHMED, J:- Through this single judgment, we propose to dispose of Crl.
Appeals Nos.212 & 316 of 2003 filed by the appellants against their convictions and Crl. Revision No.86 of 2003 filed by Akhter Husain, complainant/petitioner seeking enhancement of sentence, as these matters arise out of judgment dated 08.03.2003 passed by a learned Addl. Sessions at Sahiwal.
2. Kashif Hussain, hereinafter referred to as the deceased, was gunned down on 22.01.2001, at noon time within the area of Police Station Farid Town, Sahiwal. The incident was witnessed by Akhtar Hussain (PW-1) and Jaffer Hussain (PW-2) and reported through complaint (Ex.PA) on the statement of Akhtar Hussain (PW-1), recorded by the Station House Officer, at 4.45 p.m in Civil Hospital, Sahiwal alleged wherein is that on the fateful day while the complainant was present in the house of his sister Safia Begum, upon hearing gun reports he alongwith PWs was attracted to the spot to see four unknown persons armed with pistols firing upon the deceased on the roadside who upon alarm fled from the scene in a white colour car. Suspicion was laid against Farooq Qamer who was latter arrayed with the co-accused to face the trial. Motive was cited as previous enmity between Farooq Qamer and Farhat Hussain, nephew of the complainant.
3. The dead body was dispatched to the mortuary for autopsy which was conducted at 8.30 a.m; Dr. Muhammad Zafar (PW-13) noted as many as seven firearm wounds with four entry apertures; injuries were ante mortem; entry wounds on front and right side of abdomen as well as on the lower right side of abdomen, with their exits, designated as injuries No. 1, 2, 6 & 7 were opined as fatal; these injuries caused perforation of liver, and small and large intestine.
4. On spot inspection, Investigating Officer secured blood through a cotton swab secured vide memo (Ex.PB), five casings of 30-Caliber (P-3/1-5) through (Ex.PC). Khawar, Shahid alias Vicky and Sohail Masih accused were arrested 08.05.2001 and during the course of investigation, each pursuant to disclosure led to the recovery of 30-Caliber pistols, P-3, P-5 and P-7 respectively on the same day, however, Forensic Science Laboratory report (Ex.PS) is in the negative; their fourth companion Farooq Qamer remained away from law and was arrested later to face a subsequent trial resulting into his acquittal. The appellants were put to test identification parade on 21.05.2001, conducted by Mr. Nasir Jamal Hotiana (PW-15) wherein both the eye witnesses correctly identified the appellants as those who with their fourth colleague had fatally assaulted the deceased.
5. The appellants were indicted on 04.12.2001 when they pleaded not guilty and claimed trial, pursuant whereto the prosecution was called upon to bring home charge against them; as many as 19 prosecution witnesses appeared before the trial Court. The appellants confronted the prosecution evidence with the denial in the following terms:- " It is a false case. The PWs have made false statements against me. In fact, I was a member of Muslim Students Federation, MAO Colleague, Lahore in the year 2000. Nisar Gujjar, President MSF, Lahore Division and his cousin Azam Gujjar, were murdered in October 2000. I was an eye witness in that case and I alognwith other students leaders of MSF had agitated and protested for the brutal murder of Nisar Gujjar and his cousin Azam Gujjar and a strike call in all Colleges of Lahore and made by us. The then Government became hostile towards us. We were apprehended and tortured by CIA Model Town, Lahore, of which, Mazhar Iqbal ASI, PW not examined(since absconder), was instrumental to get us involved in this false case on the instance of highup of the Police. The PWs of this case were summoned at CIA Headquarter Lahore and before the identification parade, were shown to the witnesses at Lahore and got identified there."
6. Upon conclusion of the trial, vide impugned judgment dated 08.03.2003, appellants were convicted under Section 302 (b)/34 PPC and sentenced to life imprisonment with compensation of Rs. 25000/- each as Tazir. Benefit of Section 382-B Cr.P.C was also extended to them. Appellants were granted bail by way of suspension of execution of their sentences. Shahid Ali alias Vicky and Sohail Masih are before the Court whereas Muhammad Khawar has defaulted in his appearance; M/s Syed Badar Raza Gillani and Ms. Asma Khan Advocates are representing all the appellants.
7. Learned counsel for the appellants contend that prosecution evidence is discrepant and untrustworthy; that the impugned judgment passed by the learned trial Court is illegal and contrary to the facts of the case; that motive set up by the prosecution is false and not proved; that the case of the prosecution is highly doubtful; that test identification parade has not been held in accordance with the law and that the report of Forensic Science Laboratory is negative which according to the learned counsel for the appellants goes a long way to militate against the prosecution case.
8. Conversely, the learned Law Officer has defended the impugned judgment; while addressing his arguments in Crl. Revision No.86 of 2003 contends that once the trial Court was satisfied about the culpability of appellants, there was no occasion for the learned trial Judge to visit them with any degree of leniency, therefore, sentence awarded to them merits enhancement.
9. We have heard the learned counsel for the appellants, learned D.P.G. And perused the record.
10 . Ocular account coupled with test identification parade is the mainstay of the prosecution case; recoveries of casings from the spot and subsequent seizure of weapon at the instance of the appellants do not advance prosecution case in the face of a negative forensic report. Motive set up in (Ex.PA) is bad blood between Farhat Hussain and Farooq Qamer having no nexus with the deceased. Prosecution case set up in (Ex.PA) is clear and unambiguous in the terms that eye witnesses were inside the house of Safia Begum when they heard gun reports and came out of the house to see the deceased receiving fatal shots on the roadside. Safia Begum has not been produced. Position taken by the eye witnesses during the test identification parade is that they saw the occurrence, taking place inside the house; these are the positions diametrically apart and irreconsiliable. The most intriguing part of prosecution case is mentioning of the name of Farooq Qamer, in the FIR as the one who allegedly architected the crime. Farooq Qamer was subsequently graduated to the position of one of the four assailants who actually participated in the occurrence and was assigned straight fire shots on the deceased and yet he was arrayed as an unknown assailant. The position taken by Akhtar Hussain (PW-1) is self-destructive. Had he seen Farooq Qamer in the company of remaining assailants he should have nominated him on the day one; roles assigned to all the four assailants including that of Farooq Qamer are inexorably and indissolubly are identical with each other and evidence of the witnesses on this point is indivisible.
There are four entry apertures with five casings found on the spot. In the test identification parade (Ex.PP), all the appellants are alleged to have fired upon the deceased without their being any distinction in terms of order in which fire shots were made by them. Going by Ex.PA which is corner stone of the prosecution case, the assailants were seen by the PWs while they were fleeing from the spot and as such they offered a momentary glimpse to the witnesses. In this backdrop, it would be unsafe to maintain convictions, as the case of the prosecution is not free from doubts; these doubts are neither illusory nor imaginary rather rooted into the stated positions of the prosecution; benefit whereof cannot be withheld. Consequently, Crl. Appeals No. 212 and 316 of 2003 are allowed.
Their sureties are discharged. Non bailable warrants of Muhammad Khawar are recalled.
11. As a necessary corollary of above findings, Crl. Revision No. 86 of 2003 stands dismissed.