LAHRASAP KHAN, J.--Vide judgment, dated 8-1-1985, passed by a learned Additional Sessions Judge, Faisalabad, Jafar (22), and Siddiq (22) have been convicted under section 302/34, P.P.C. For the murder of Liaqat Ali deceased and have been sentenced to death and a fine of Rs.5,000 each or in default two years' R.I. Both of them have also been convicted under section 307/34, P.P.C. For murderous assault on Mudassar Ahmad P.W. 9 and have been sentenced to ten years' R.I. And a fine of Rs.5,000 each or in default two years' R.I. Both Jafar and Siddique have also been convicted under section 394/34, P.P.C` and have been sentenced to imprisonment for life and a fine of Rs.5, 000 each or in default two years' R.I. T hey have also been convicted under section 459/34, P.P.C.
And sentenced to imprisonment for life and a fine of Rs.5,000 each or in default two years' R.I. Vide the same judgment, Mst. Haleema (20), sister of Siddique, has been convicted under section 411, P.P.C. And sentenced to three years' R.I. It has also been directed that the fine imposed on Jaffar and Siddique if recovered, half of it would be paid to the heirs of Liaqat deceased and the remaining half to Mudassar Ahmad injured P.W. The substantive sentences have been ordered to run concurrently.
2. The convicts aforementioned have challenged their convictions and sentences through Criminal Appeal No. 10 of 1985, filed by Siddique and Mst. Haleema and Criminal Appeal No. 70 of 1985, filed by Jaffar. The matter also stands referred to us under section 374, Cr.P.C. Vide Murder Reference No. 34 of 1985, seeking confirmation of death sentence awarded to Jafar and Siddique. This judgment shall dispose of the three matters.
3. The occurrence took place on the night between 17th/18th December, 1982, at about 3.30 a.m. In the New Abadi Old Railway Line. Mohallah Yousafabad, in the area of Chak No. 214/R.B., at a distance of one mile from Police Station Sadar, Faisalabad.
4. The occurrence was reported through statement Exh. P.L. By Muhammad Boota P.W. 10, father of Liaqat Ali deceased. His statement was recorded at Jaranwala Road at 9.15 a.m. In the area of Chak No. 214/ R. B. By Muhammad Shafi A. S. I. P. W.
12. Formal F.I.R. Was recorded at Police Station Sadar, Faisalabad on the same day at 9.30 a. m. By Arshad Javed S.H.O. P.W.
5. Muhammad Boota complainant disclosed in his statement Exh. P.L. That he owned two houses in New Abadi Mohalla Yousafabad and one of these two houses was occupied by himself while in the other his three sons, namely, Shaukat Ali, Liaquat Ali and Mudassar Ahmad used to reside. On the night of occurrence Shaukat Ali had gone to Samundari with his family members in connection with a marriage ceremony while Liaqat Ali and Mudassar Ahmad were sleeping in the house. At about 3.30 a.m., Mudassar Ahmad P. W. 9 informed the complainant that he and his brother Liaqat Ali received fire- arm injuries at the hands of unknown thieves. He told his father that at about 3.00 a.m. He heard a sound of breaking of iron bars fixed in the window. He got up and peeping through the window saw two persons present in the house. One of them was of short stature while the other was of tall stature. He informed his brother Liaqat Ali who was sleeping in the other room about the presence of thieves. Liaqat Ali came out of his room and the person with short stature, who was armed with .12 bore pistol. Fired at Liaqat All hitting him on his chest. The other person of tall stature gave a Sots blow on the head of Liaqat Ali. Mudassar Ahmad P.W. Came out of his room to help his brother and he overpowered the person of short stature, but his companion got him released. Thereafter the person with short stature fired at Mudassar Ahmad hitting hire on his chest. The assailants then entered into the room of Mudassar Ahmad and took away clothes and Rs.1,500 in cash. They entered into the room of Shaukat Ali and from there also removed some articles. After receiving the information of the occurrence from Mudassar Ahmad, Muhammad Boots took his sons in injured condition to the hospital. Thereafter he proceeded for lodging the report towards the police station but he met the A.S.I. At Jaranwala Road and made statement Exh. P.L.
6. Liaqat Ali subsequently died. Autopsy on his dead body was performed on 20-12-1982, at 8.00 a.m. By Dr. A.A. Khalid, Senior Medical Officer, D.H.Q. Hospital, Faisalabad, and multiple fire-arm wounds (five) on left lower chest and upper abdomen each 4/5 c.m. x c.m. x chest and abdominal cavity, were found in addition to a lacerated wound 1-- c.m. x -- c.m. Bone deep on frontal head and a loprotomy wound in the abdomen. The doctor opined that death occurred due to shock and haemorrhage as a result of aforementioned injury No. 1. This injury was ante-mortem and was caused by fire-arm. It was sufficient to cause death in the ordinary course of nature.
Dr. Muhammad Ajmal Mian P.W. 4 medically examined Liaqat Ali while he was alive on 18-12-1982 at 3.45 a.m. And noticed multiple fire-arm wounds, as detailed above, in addition to a lacerated wound 3-- c.m. x -- c.m. Bone deep, on the front part of head, over hair margin. The injuries were kept under observation. Injury No. 1 was caused by fire-arm while injury No. 2 with blunt weapon.
On the same day he examined Mudassar Ahmad and noticed multiple fire-arm wounds 4/5 c.m. x 4/5 c.m., depth not probed on the middle front part of the chest, just left of midline scattered in area of 7 c. m. x 7 c.m.
6. It appears that Jaffar and Siddique appellants were involved in another case arising out of F.I.R.
No. 68, dated 12-4-1983. Some allegedly stolen articles pertaining to the present case were recovered at the instance, Siddique and Mst. Haleema and, three were formally arrested in this case and were sent up for trial.
7. Besides Dr. Muhammad Ajmal Mian P.W. 4 and Dr. A.A. Khalid P.W. 15, the prosecution at the trial examined Aurangzeb P.W. 1, Muhammad Akbar P.W. 2, Khushi Muhammad P.W. 3, Arshad Javed P.W.
5, Inayat Ali P.W. 6, Muhammad Sadiq P.W. 7, Mehnga P.W. 8, Mudassar Ahmad P.'W. 9, Muhammad Boots, P.W. 10, Muhammad Hayat P.W. 11, Muhammad Shafi S.I. P.W. 12, Muhammad Ali A.S.I. (Rtd).
P.W.11 and Muhammad Ishaq P.W. 14, Aurangzeb P.W. 1, prepared the site-plans Exh. P.A. And Exh.
P.E./1 of the place of occurrence. P.W. 2 Muhammad Akbar F.C. Escorted the dead body of Liaqat Ali deceased to the mortuary on 19-12-1982. Khushi Muhammad P.W. 3 attested the recovery memo.
About the recovery of blood-stained earth from the spot on 18-12-1982, Arshad Javed A.S.I.
Recorded the formal F.I.R. Exh. P.L.D on 18-12-1982, as he was posted as Muharir Head Constable Police Station Sadar, Faisalabad. P.W. 6, Inayat Ali attested the recovery memo. Of blood-stained clothes of Liaqat Ali deceased. P.W. 7 Muhammad Sadiqi attested recovery memo. Exh. P.F., whereby the police secured pellets allegedly recovered from the dead body of the deceased and from' the injuries of Mudassar Ahmad P.W. P.W. 8 Mehnga was produced to say that he had identified the tape-recorder P.17, handkerchief P.18 and Shalwar P. 19, recovered from the appellants as belonging to Liaqat All but at the trial he disclosed that he could not say as to who was the owner of these articles. Again he said that the tape-recorder and the handkerchief belonged to Liaqat Ali deceased but he could not say about the Shalwar.
8. P.W. 9 Mudassar Ahmad is very important witness in the present case. He is an injured P.W. He stated that unknown, and unidentified persons entered their house. They started to separate iron bars. On account of alarm he were up and saw the two persons standing in the compound. He informed his brother who was sleeping in the other room. His brother Liaqat Ali came out from the room. He was fired at by short statured person with a pistol. Mudassar Ahmad came out of his room and apprehended the short statured person but his companion a tall statured one rescued him. The short statured person fired at Mudassar Ahmad also. Thereafter both these persons entered the rooms of Mudassar Ahmad and that of Shaukat Ali. They took away with them a tape- recorder, a sum of Rs.1500 and golden finger-ring. Mudassar Ahmad did not utter a single word that tall statured and short statured persons, as aforesaid, were Jaffar and Siddique appellants. He conceded that he did not identify both these persons and but for their status he did not give their descriptions before the police. Admittedly in. This case no identification parade was also held, P.W.
10 Muhammad Boots, father of Mudassar Ahmad, is not a witness of the occurrence. He made the statement Exh. P.L., on the basis of information supplied to him by Mudassar Ahmad P.W. 11 Muhammad Hayat is a person in whose house a dacoity was committed on 14-5-1983, during the course of which Jaffar appellant was arrested alongwith Abbas while their companion Anwar managed to escape, but later he too was arrested. During the investigation of that case, Jaffar Abbas and Anwar got recovered many articles including a few articles allegedly relating to the present occurrence. The testimony of this witness is, therefore, not very much relevant for the purpose of the present case. He did not attest the recoveries relating to this case. P.W. 12 Muhammad Shaft S.I. Conducted investigation of the present case after recording the F.I.R. Exh. P.L. /1, but his investigation had nothing to do with the subsequent arrest of and recoveries from the appellants. Muhammad Ali S.I. P.W. 11 disclosed that he effected the arrest of Jaffar accused alongwith Abbas in F.I.R. No. 68, dated 19-4-1983. Jaffar accused got recovered articles detailed in Exhs. P.R. And P.S. Recoveries detailed in Exh. P.S. Were effected from his house while recoveries detailed in Exh. P.R. Were effected from the house of Siddique and Mst. Haleema appellants, who were brother and sister, inter se, Mudassar Ahmad P.W. On 1-8-1983, identified the articles, viz., tape-recorder P.17. Vide memo. Exh. P.Q. He also identified the handkerchief P. 18 and Shalwar P. 19, mentioned in Exh. P.R. Muhammad Ishaq Head Constable P.W. 14, formally arrested Siddique on 6- 8-1983.
9. It appears-from the above resume of the prosecution evidence that there is no evidence worth the name on the records to connect Jaffar and Siddique appellants with the murder of Liaqat Ali deceased or of causing injuries to Mudassar Ahmad P.W. While making murderous assault on him.
The prosecution has led no evidence to show that these two appellants committed lurking house trespass into the house of Mudassar Ahmad, Liaqat Ali and Shaukat Ali and they caused injuries to Liaqat Ali and Mudassar Ahmad while committing dacoity pursuant to A the said lurking house trespass. Thus, there is not an iota of evidence on the records justifying the conviction of Jaffar and Siddique appellants for the offences punishable under sections 302, 307, 394 and 459, P.P.C. Even Mudassar Ahmad, who is an injured P.W. Has not stated at the trial that these two appellants committed lurking house trespass for robbery in their house or that these two appellants caused fatal injuries to Liaqat Ali deceased and attempted the murder of this witness.
10. So far as recoveries of the alleged stolen articles from the three appellants are concerned, the case of the prosecution is that tape---recorder P. 17 was recovered at the instance of Jaffar from the house of Siddique and Mst. Haleema while handkerchief P. 18 and Shalwar P. 19, from his own house, but we have noticed that in the statement Exh. P.L. And the F.I.R. Exh. P.L./1, there is no allegation to the effect that during the course of occurrence a tape-recorder and handkerchief or Shalwar were stolen away. As per contents of the F.I.R. Clothes and a sum of Rs.1,500 in cash were allegedly stolen away. The description of the clothes has not been given in the F.I.R. And there is no mention of the tape-recorder at all. In such circumstances, it cannot be said that aforementioned articles were in fact stolen articles belonging to the complainant and Mudassar Ahmad P.W. And that the appellants dishonestly retained these articles knowing the same to be stolen ones. Their conviction under section 411, P.P.C. Is also not sustainable.
11. For the foregoing conclusions we allow both the appeals, set aside the convictions and sentences of the appellant and acquit them. Mst. Haleema is on bail. She shall stand discharged of her bail bonds. Jaffar and Siddique appellants shall be set at liberty forthwith if not required to be detained in another case. The sentence of death awarded to Jaffar and Siddique is not confirmed.