QAZI MUHAMMAD AMIN AHMED J:- Shahnawaz and Nazir Ahmad through Crl. Appeals. No.228/2008 and 128/2008 have challenged their convictions; these are clubbed with M.R. No.71/2009 seeking confirmation of their death sentences. PSLA No.16/2008 is directed against acquittal of their co- accused . These arise out of an incident which occurred on 03.10.2005 within the area of Chah Mattulli Wala situating at a distance of 7 miles from Police Station Sarai Sidhu reported by Muhammad Akram (PW-1) through written application (Ex.P.A) alleged therein is that on the fateful day while he was present in his Dera when four assailants armed with rifles arrived there at about 9.15 p.m; one of them was identified as Sajjad alias Sajju who made successive fire shots on Khizer Hayat deceased followed by a fire shot by one of the accompanying assailants resulting into his instant death. Another accompanying assailant hit Mohsin Ali PW with a gun shot. Political rivalry is stated as motive for the occurrence.
Feeling dissatisfied with police investigation Muhammad Akram (PW-1) filed a private complaint graduating the number of accused to eight. Learned trial Judge, on conclusion of trial, vide judgment dated 31.10.2008 acquitted Raza Hayat, Akbar Hayat, Sikandar Hayat, Ghulam Raza and Liaquat Ali co-accused while convicting the appellants and one Rabnawaz under Section 302(b) read with 34 PPC and awarded them death sentence; they were also required to pay compensation in the sum of Rs.1,00,000/- each to the legal heirs of the deceased or to undergo six months S.I in default thereof. Rabnawaz convict entered into a compromise and was consequently acquitted from the charge on the basis thereof. The principal accused named in the FIR Sajjad who opened the attack with fatal shots was reportedly done to death in a police encounter.
2. In order to prove the charge, 18 prosecution witnesses entered the witness box. Noor Elahi S.I who had conducted initial investigation was examined as (CW-1).
3. Learned counsel for the appellants contends that the appellants are not named in the First Information Report and even after their arrest they were never put to test identification parade and as such their implication in the occurrence at a belated stage through massively improved statements cannot sustain the charge which involves ultimate penalty of death and that ocular account furnished by highly inimical witnesses does not find corroboration from any source whatsoever, in view whereof it would highly unsafe to uphold the convictions.
4. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has supported the impugned judgment and prayed for confirmation of death penalty; they have also sought reversal of acquittal of co-accused through P.S.L.A.
5. We have heard the learned counsel and perused the record.
6. The fate of the prosecution case is hinged upon the testimony of PW-1 and PW-2 who furnished ocular account. There is no denial to the fact that the present appellants were not named in the First Information Report which was on the basis of a written complaint lodged by Muhammad Akram (PW-1). He has admitted in his cross examination that complaint was drafted by one of his relatives and the scribe did not enter the witness box. It is also admitted by him that the author of complaint arrived at the spot after 30 minutes of the occurrence. However, the witness insisted that complaint was drafted on his narration but with an admission that he missed to mention the names of the appellants therein. This witness furnished a massively improved account of the incident specifying various attributions to the appellants during his examination in chief; he was duly confronted with each and none was found in complaint (Ex.P.A); in case his deviation from his previous statement is excluded from consideration nothing is left in the field to frame the appellants with the charge. Case of Mohsin Ali (PW-2) is not much different from that of Muhammad Akram (PW-1). One weak piece of evidence cannot corroborate another weak piece of evidence, Muhammad Akram (PW-1) and Mohsin Ali (PW-2) are identically placed. A witness who deviates from his previous position is not worthy of credit particularly when he introduced an improvement in his initial position which changed the entire complexion of the prosecution case.
7. As the appellants were not named in complaint (Ex.P.A) their subsequent induction in the array of accused not only required disclosure of information establishing their nexus with the occurrence but also their identification through a test identification parade; this is essential to ensure safe administration of criminal justice. Identification in the Court that too after lapse of time hardly carry any evidential value particularly in a case entailing capital sentence. Prosecution is failing miserably on this score as well.
Political rivalry in the present case is prosecution's own case and in this backdrop testimony of the witnesses pitted against the appellants certainly require independent corroboration which is lacking on all corners.
8. As a sequel to the above discussion, Crl.Appeal No.228 of 2008 is allowed. Impugned judgment dated 31.10.2008 is set-aside. The appellants are acquitted of the charge. They be released forthwith if not required in any other case. Murder Reference is answered in the NEGATIVE and death sentence is NOT CONFIRMED.
9. Since Crl. Appeal No.228 of 2008 filed by the appellants through counsel has been allowed, Crl.
Appeal No.128 of 2008 filed by the appellants through jail against their conviction and sentence is disposed of as being superfluous and redundant.
10. As a necessary corollary of above findings, leave to appeal is declined in P.S.L.A No. 16 of 2008.