M.A. Shahid Siddiqui, J.--Muhammad Asif, Muhammad Irfan and Muhammad Shahid appellants were tried by the learned Judge Anti-T errorism Court-II, Multan under Sections 302 read with Section s 34 and 394, PPC in case FIR No. 201 of 2001 dated 08.6.2001 registered at Police Station Saddar Kabirwala. Vide judgment dated 04.12.2003, all the three appellants were convicted under Section 302(b), PPC road with Section 34, PPC for committing qatl-i- amd of Nadeem Khalid and Muhammad Saleem. Muhammad Asif appellant was sentenced to death on both the counts and directed to pay Rs. 2,00,000/- on each count to the legal heirs of the deceased whereas Muhammad Irfan and Muhammad Shahid appellants were sentence to imprisonment for life on two counts. They were also directed to pay Rs. 2,00,000/- on each count to the legal heirs of the deceased or in default thereof to further undergo S.I. for six months.
2. There is also a reference M.R. No. 05 of 2003 made by the learned trial Court seeking confirmation of the death sentence awarded to Muhammad Asif appellant. We propose to dispose of both the matters through this consolidated judgment.
3. The occurrence took place on 08.6.2001 at about 11.15 a.m. inside Habib Bank Limited, Pul Rango Branch within the area of Police Station Saddar Kabirwala. According to the prosecution three un-known perpetrators went to the said branch on a black Honda 125 CC motorcycle. One of them (Muhammad Asif appellant) who, was armed with a pistol entered into the Bank and fired at Muhammad Hussain guard (PW-4). The later took the position and fired with the repeater upon which Muhammad Asif appellant resorted to in indiscriminate firing and hurriedly came back. As a result of firing two customers Nadeem Khalid and Muhammad Saleem and one Jamshed (PW-22) sustained fire-arm injuries. Muhammad Saleem and Nadeem Khalid died in Qadirp ur Rawan and Nishtar Hospital, Multan respectively . The perpetrators went away on their motorcycle immediately after the occurrence. Their attempt to commit the dacoity failed.
4. Muhammad Ishaq (PW-25) the then Manager of the Bank reported the matter . He did not mention the names of the perpetrators however , he gave the description of their features and statures and maintained that he could identify the perpetrators.
5. Muhammad Nawaz S.I. (PW-26) on receipt of information went to the place of occurrence and recorded the statement Ex.PH of Muhammad Ishaq, Manager which found basis of the formal F.I.R. During preliminary investigation he ceased three empties of .12 bore rifle P.9/1-3 and two empties or .30 bore pistol P. 10/12 and recorded the statements of the PWs under Section 161, Cr.P.C. On 20.12.2002 he submitted report under Section 173, Cr.P.C. On 29.6.2001 a Honda motorcycle 125 CC bearing Registration No. 2390/MNY was also taken into possession vide memo. Ex.PT which was produced by one Nazeer son of Abdullah.
6. The present appellants were arrested on 05.3.2002 by Harrapa Police District, Sahiwal in case under Sections 399/402, PPC. A pistol P-6 was recovered by Harrappa police from the possession of Muhammad Asif appellant and a separate case was registered at Police Station Harrappa under Section 13 of Arms Ordinance No. XX of 1965 vide FIR No. 66 of 2002. Similarly pistols P.7 and P.8 were recovered by Harrappa police from the possession of Muhammad Irfan and Muhammad Shahid appellants but these weapons have no nexus with the instant case.
7. The appellants were arrested in the instant case on 26.7.2002 on the basis of extra judicial confession made by them on different occasions and at different places before Muhammad Hanif (PW-16), Muhammad Aslam, (PW-17) and Muhammad Iqbal (PW-18). Muhammad Sultan (PW-19) and Shaukat Ali (PW-20) had appeared before the I.O. for the first time on 09.3.2002. Their statements were to the detect that they had seen the appellants fleeing from the spot immediately after the occurrence. They also deposed about the confession made by the appellants before the police. Ali Murtaza (PW21) also stated about the confession of the appellants before the police.
8. At the commencement of the trial a formal charge- sheet was drawn against the appellants on 22.4.2003. They pleaded not guilty and claimed trial.
9. The prosecution examined as many as twenty-eight PWs in order to bring home the charge against the accused.
10. Admittedly the appellants were not nominated in the FIR. Muhammad Hanif (PW-16), Muhammad Aslam (PW- 17) and Muhammad Iqbal (PW-18) deposed about the extra judicial confession by Muhammad Irfan, Muhammad Shahid and Muhammad Asif appellants respectively at Taxi Stand, Chichawatni, in the Court premises of Sahiwal and at a shop in Okara. Muhammad Sultan (PW-19) and Shaukat Ali (PW-20) stated that they had seen the appellants coming out of the Bank and fleeing away on a motorcycle immediately after the occurrence. These witnesses also stated about the confessio n made by the appellants while they were, in police custody . Ali Murtaza (PW-21) stated that he had over heard the appellants when they were talking to each other . He maintained that the accused confessed before the owner of the "Khokha" that they had committed murder of two persons during a dacoity . It may be noted that statements of PW-16 and PW-21 have been dis-believed by the learned trial Court.
We have found that the learned trial Court has given cogent reasons to discard their testimony and there are no reasons to take exception. Muhammad Hussain (PW-24) who was guard at the relevant time did not say anything incriminating against the appellants. Jamshed Ahmad (PW-22) who was present at the relevant time as a customer is an injured witness. Muhammad Afzal (PW-23) who was then posted as cashier and Muhammad Ishaq (PW-25)
Manager of the Bank gave the ocular account while Dr. Muhammad Ashraf (PW-1) provided medical evidence.
Muhammad Nawaz S.I. (PW-26), Rehmat Ali Chatha S.I. (PW-27), Mulazim Hussuin, S.I. (PW-28) stated about the various steps taken daring the investiga tion of the case. The remaining witnesses are more or less of formal nature. There is no dispute that the learned trial Court convicted the appellants on the basis of the evidence Jamished by Jamshed Ahmad (PW-22), Muhammad Afzal (PW-23) and Muhammad Ishaq (PW-25) in whose presence the occurrence had taken place.
11. Learned counsel for the appellants while assailing the conviction and sentence inter alia argued that the occurrence was un-witnessed; that the appellants were arrested on 26.7.2002 and the PWs were not put to identification test; that the identification of the appellants by the eye-witnesses for the first time after more than two years does not establish the identity of the culprits.
12. Learned counsel appearing on behalf of the complainant as well as the State have supported the judgment.
They maintained that in the circumstanc es of the case the PWs who were not related to the deceased in any manner had no motive to falsely implicate the appellants and that the omissions made by the I.O. to get the appellants identified accordance with law would not be fatal to the case.
(sic) absence of any, other corroborating evidence. The prosecution has failed to prove its case beyond any doubt.
We, therefore, allow the appeal and set aside the impugned conviction and sentence. The appellants shall forthwith be set at liberty if not required in any other case. The Murder Reference is answered in negative.