MANZOOR AHMAD MALIK, J. Subject to all just and legal exceptions, the office Objection is set aside and Mr. Shahid Azeem, ASC is allowed to appear and represent the convict-appellant Muhammad Amin.
2. After a regular trial, the appellant Muhammad Amin was convicted by the learned trial court under section 302(b), P.P.C. and under section 7 of the Anti-T errorism Act, 1997 and was sentenced to death. He was also convicted under some other penal provisions and sentenced to different terms of imprisonment as enumerated in Para.2 of the impugned judgment. The sentences were ordered to run concurrently . Benefit of section 382-B, Code of Criminal Procedure was extended to him. Through the same judgment, the learne d trial court by giving benefit of doubt acquitted co-accused of the appe llant Saif-ur-Rehman. The appellant filed a criminal appeal before the learned Lahore High Court, Multan Bench, Multan, whereas a Capital Sentence Reference was sent by the learned trial Court for confirmation or otherwise of his sentence of death. A criminal appeal was also filed by the State against the acquittal of co-accused Saif-ur-Rehman. The learned High Court through the impugned judgment dismissed the criminal appeal of the appellant and by upholding his sentence of death answered the Capital Sentence Reference in the affirmative. The Criminal appeal filed by the State against the acquittal of co-accused Saif-ur-Rehman was also dismissed by the learned High Court through the impugned judgment. Thereafter , the appellant filed a criminal petition before this Court, wherein leave was granted on 20.02.2017. Hence, the instant criminal appeal.
3. We have heard learned counsel for the appellant and learned Deputy Prosecutor General, Punjab at length and have perused the available record with their assistance.
4. Prosecution case against the appellant as divulged from the contents of FIR is that he along with his co-accused Saif ur Rehman (both unknown accuse d at that time) on the fateful night and time made firing at the police patrolling party , as a result whereof Irshad Ahmad 45/C sustained firearm injuries and died on his way to hospital.
The occurrence in this case had taken place on the night of 10.10.2012 at 11.30 p.m. The matter was reported by the complainant Jawad Fazal, SI/SHO through a written complaint on the interv ening night of 10/11.10.2012 at 12.00 hours, whereupon formal FIR was registered on the same night at 12.15 hours. The postmortem examination on the dead body of Irshad Ahmad 45/C was conducted on the morning of 11.10.2012 at 8.45 a.m. despite the fact that complainant Jawad Fazal, SI (PW8) stated before the trial court that he had already prepared the injury statement and inquest report before the arrival of investigating officer in the hospital, who reached at the hospital at 1.00 a.m. on 11.10.2012. He admitted in his cross-examination that doctor was present on duty in the hospital, when he took Irshad Ahmad (deceased) to the hospital. In the FIR, which was drafted on the written complaint of Jawad Fazal, complainant, the physical features of unknown accused persons have been given. However , in the inquest report, which as per complainant, was drafted by him in the hospital soon after the occurrence, no physical features of the assailants have been given. It has also been noted by us that Dr. Khizar Hayat Kathia (PW1) who conducted autopsy on the dead body of Muhammad Irshad stated in his court statement that he started postmortem examination at 8.45 a.m. after he resumed his duty on 11.10.2012 at 8.00 a.m. According to doctor , the sweeper told him that dead body of Muha mmad Irshad was brought to the hospital at 2.30 a.m. He admitted that he conducted postmortem examination on the dead body on 1 1.10.2012 but he prepared the report on 14.1 1.2012.
5. It has been observed by us that in the FIR and while appearing before the trial court, the complainant Jawad Fazal SI (PW8) stated that the unknown accused persons who made firing at the police party were aged 20/25 years. The other eye-witness who was member of the at rolling party Sajid Mushtaq 325/C (PW9) stated in his examination in chief that one accused was about 20/25 years of age, whereas the other accused was about 26/27 years of age. The occurrence in this case had taken place on 10.10.2012. The charge against the appellant and his co-accused was framed on 19.02.2013. While framing the charge against the appellant and his co-accused, the learned trial Judge has noted the age of co-accused Saif ur Rehman as 33 years and the age of appellant Muhammad Amin has been noted by the learned trial Judge as 49 years. In the statements under section 342, Cr.P.C., the age of Saif ur Rehman, co-accused has been mentioned as 33 years, whereas the age of appellant has been mentioned as 46 years. During trial, Dr. Muneer Ahmad Qadri appeared as CW-1. He had medically examined the appellant and his co-accus ed. While appearing before the trial court, he stated that he was member of District Standing Medical Board along side other doctors and on 22.01.2013, he medically examined the appellant brought by police, who was 45 years of age. He further stated that on the same day he medically examined co-accused Saif ur Rehman, who was 35 years of age. Although the eye-witnesses Jawad Fazal SI (PW8) and Sajid Mushtaq (PW9) claimed that they had identified the appellant and his co-accused during identification parade and ascribed to them their respective roles during the occurrence, but the fact remains that the age of unknown accused persons mention ed in the FIR and claimed by the eye-witnesses in their Court statements is far away from the age of appellant and his acquitted co-accused as reflected from the record.
6. The prosecution has alleged that two unknown accused made firing at the police party . In the identification parade proceedings, the eye-witnesses Jawad Fazal SI (PW8) and Sajid Mushtaq (PW9) pointed out that appellant Muhammad Amin was carrying .12 bore gun whereas acquitted co-accused was carrying a pistol. The learned courts below recorded/maintained the acquittal of co-accused Saif ur Rehman for the reason that no empty of pistol was secured from the spot. In this backdrop, it has been noted by us that occurren ce in this case had taken place on 10.10.2012. It has come on record through the statement of investigating officer Akhtar Ali, SI (PW12) that appellant and his co-accused (since acquitted) were arrested in some other case and made disclosure during investigation of case FIR No. 423 of 2012 registered at P.S. Kassowal that they were involved in the present occurrence. According to investigating officer Nadeem Afzaal, Inspector (PW13) he obtained physical remand of appellant and his acquitted co-accused on 14.01.2013 in the present case. Interestingly , two empty cartridges (P- 4/1-2) were secured from the place of occurrence by the investigating officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of FSL is of no avail to the prosecution and is inconsequential. It is relevant to mention here that no appeal or petition has been filed by the State against the acquittal of co-accused Saif ur Rehman before this Court. Considering the overall circumstances, it has been observed by us that the case of prosecution against the appellant is not free from doubt.
7. For what has been discussed above, the instant criminal appeal is allowed. The convictions and sentences of appellant Muhammad Amin are set aside. He is acquitted of the charges framed against him. He is behind the bars and is ordered to be released forthwith, if not required to be detained in any other case.