' MIAN ABDUL KHALIQ, J.--- This criminal appeal arises from the judgment of Mr. Fakhar-ud-Din Siddiqui, Judge, Punjab Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, whereby he on 15-1-1992 convicted appellant Rasool Bakhsh under section 302/34, P.P.C. For the murder of Sultan Ahmad and sentenced him to death and a fine of Rs,5 lacs or in default whereof to suffer 7 years' R.I. With the direction that if the fine is. Recovered, Rs,3,00,000 be paid to the legal heirs of the deceased as compensation.
2. The occurrence took place on 22-5-1989 at 6-30 p.m. In village Qadirpur, Tehsil Khanpur at a distance of 6 kilometres from Police Station Bhong. F.I.R. Exh.P.F. Was lbdged by P.W.2 Ghulam Mustafa, brother of the deceased on the same day at 8-00 p.m. And and was recorded by P.W.14 Muhammad Sarwar, S.H.O.
3. Briefly the prosecution case is that P.W.2 stated in the F.I.R. Exh.P.F. That he was resident of village Qadirpur and was a cultivator. He alongwith his brother was cultivating the land of Sardar Azhar Khan Leghari and on the day of occurrence i,e. 22-5-1989 at about 6-30 p.m. P.W.2 Ghulam Mustafa alongwith his real deceased brother Sultan Ahmad was present in his house, when they heard fire- shots from the side of Chak Dabba, on which they both and others came out of their houses with Sotis and witnessed that from the side of Chak Dabba three persons, one of them taller in height, blackish colour, stout body and two persons of middle stature, blackish colour, wearing Shalwar Qameez armed with Klashnikov and rifles were coming and were catching hold of Muhammad Shoaib and were taking him after abduction. Some persons were following them. P.W.2 alongwith his deceased brother raised Lalkara to the accused and asked them to release Shoaib (P.W.5), on which all the three persons fired straight at P.W.2 and his deceased brother. A bullet hit on the forehead of Sultan who was injured, fell down and succumbed to his injuries. Besides P.W.2 the occurrence was witnessed by P.W.3 Nabi Bakhsh, P.Ws. Budla and Allah Bachaya (not produced).
Leaving behind the dead body of Sultan, P.W.2 had reached the police station and lodged F.I.R.
Exh.P.F.
4. On 23-5-1988 at 9-00 a.m., P.W.1 Dr. Abdul Wahab conducted autopsy on the dead body of Sultan Ahmad deceased and found the following injuries on his person:--
(1) A circular lacerated wound of entry 1/3" in diameter on the right side of forehead.
(2) A lacerated wound of exit. 1-1/2" in diameter on the back and right side of head. Brain matter was coming out.
' In his opinion the cause of death was damage to brain caused by injuries Nos.1 and 2, which were the result of fire-shot and were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem. The death was instantaneous and the time between death and post- mortem was 12 to 24 hours.
5. The appellant alongwith Haji Baka, co-accused (absconder) was tried. The co- accused/absconder was also sentenced to imprisonment for life with forfeiture of all his movable and immovable property.
6. The appellant was arrested by P.W.12 Irshad Akhtar Gulab on 24-7-1989 and was sent to jail lock- up on 25-7-1979 for identification parade. P.W.12 had also recovered Klashnikov from the appellant, but the same was not produced or exhibited in the Court. P.W.12 Irshad Akhtar moved an application Exh.P.W./1 before the Assistant Commissioner for identification of the appellant, who marked the same to P.W.13 Yousuf All Burq, M.I.C. For holding identification parade, in which P.W.2, P.W.3 and P.W.5 had correctly identified the appellant.
7. The prosecution produced 14 P.Ws. In all to substantiate its case. P.W.2 Ghulam Mustafa, P.W.3 Nabi Bakhsh and P.W.5 Muhammad Shoaib gave the ocular account of the occurrence. P.W.13 Yousuf All Burq, Magistrate 1st Class had supervised the identification parade proceedings Exh.P.H.
He stated that identification parade was held under his supervision and P.W.2, P.W.3 and P.W.5 had correctly identified the appellant. P.W.12 and P.W.14 had partly investigated the case. Rest of the evidence is formal.
8. The appellant when examined under section 342, Cr.P.C. Denied all the incriminating evidence against him . He raised the plea of false implication by the police. He also made statement on oath as envisaged under section 340(2), Cr.P.C. In disproof of the charge and had stated that he had been falsely implicated because he belonged to Leghari group, who were opponents of Mazaris. He was not present at the spot nor he murdered any person.
9. Believing the ocular account of the occurrence given by P.Ws.2, 3 and 5 the trial Court had convicted and sentenced the appellant as stated above.
10. Mr. Nazir Ahmad Bhatti, learned counsel for the appellant urged before us that the appellant having been involved by the police falsely was not previously known to the prosecution witnesses.
He was shown to the witnesses before the identification parade, and P.W.5 Muhammad Shoaib has given false evidence under the pressure of the police. Learned counsel for the State has supported the judgment of the trial Court.
11. We have given anxious consideration to the arguments of the learned counsel for the parties and have perused the entire evidence that has been produced by the prosecution, the statements of the appellant under sections 342 and 340(2), Cr.P.C. And the circumstances appearing in the case. P.W.2 Ghulam Mustafa complainant, real brother of the deceased had not given the names of the accused in the F.I.R. Exh.P.F. And had stated before the trial Court that All Nawaz accused fired with his Klashnikov towards them which hit on the forehead of his deceased brother Sultan, who fell down on the ground and died at the spot. The appellant also fired on them, but none was injured.
During cross-examination P.W.2 stated that prior to the occurrence accused person was not known to him and P.W.5 Muhammad Shoaib abductee was not injured by the accused in their presence.
NAliawaz, co-accused fired at Sultan deceased from a distance of 10 Karams. Other than the deceased Sultan no one had received any injury. The accused persons fired so many shots which he did not count. P.W.3 Nabi Bakhsh had also stated that All Nawaz had fired with his Klashnikov which hit Sultan deceased who fell down and died at the spot. Rasool Bakhsh appellant also fired on them with the intention to commit murder, but none was injured. During cross-examination he stated that all the three accused persons had fired on them and could not state on whose fire Sultan deceased was murdered. P.W.5 Muhammad Shoaib stated that he was caught hold of by the accused and was asked to accompany them. He became suspicious and refused to accompany them, on which they manhandled him. They gave injuries on his hand and other parts, and took him by force across the canal. When they reached near the houses of people who were Manwani by caste, they came out and asked the accused to release him. All Nawaz, co-accused fired with Klashnikov towards the P.Ws., which hit Sultan deceased, who fell down on the ground and died at the spot. The appellant also fired on the witnesses. He was taken away forcibly by the accused. The accused had tied handkerchiefs on their faces, and they had done extensive firing in the shop of cold drinks and there a man was present.
12. The appellant was arrested on 247-1989 and was sent to jail for identification parade on 25-7- 1989. P.W.13 who supervised the identification parade had stated that in his identification parade proceedings Exh.P.H. At first the date was fixed for 8-8-1989 for the purpose, but as the appellant had been sent to appear in the Court, it was postponed. The accused/appellant had also objected that he had been shown previously to the P.Ws. From the circumstances, it is dear that the appellant had been shown to the P.Ws. Before the identification parade. The appellant was not known to the P.Ws. Previously. No empty was secured by the police from the spot. Neither recovery of firearm was effected from the appellant nor any empty was secured by the police from the spot, although the appellant alongwith his co-accused is stated to have fired with their respective weapons. Moreover, none of the P.Ws. Was injured by the firing of the appellant as well as the accused. The deceased is stated to have been fired at the hands of co-accused. The abduction of Muhammad Shoaib P.W. Was not put to the appellant in his statement under section 342, Cr.P.C.
Alongwith the incriminating circumstances appearing in the case. The failure, to put such a question had occasioned miscarriage of justice which is not curable.
13. In pursuance of the above discussion, the conviction and sentence of the appellant cannot be maintained and giving him benefit of doubt, the appellant is acquitted of the charge, who shall be released forthwith, if not required in any other case.