' NAZIR AHMAD BHATTI, C.J.--- Complainant Major (Retd.) Muhammad Akram was Manager (Administration) of Ashraf Sugar Mills, Ashrafabad, Bahawalpur. Security checking was also his responsibility. On 16-11-1992 at about 4-00 a.m. He started checking security arrangements. At about 4-30 hours when he reached near Ashraf Petrol Pump, he heard the report of two fire shots from inside the petrol pump office. He rushed towards the office and saw 3 unknown persons, who were wearing Shalwar and Qameez, one of whom was armed with a rifle and a dagger, whereas the other one had a .12 bore shot-gun with him and the third armed with a pistol, coming out of the petrol pump office and started running towards K.L.P. Metaled road. The complainant called them but they aimed their weapons at him and threatened to kill him if he approached them. In the meantime Iftekhar Ahmad Chatha, Assistant Security Officer also arrived who also saw the culprits who were running towards the K.L.P. Road The complainant and Iftekhar Ahmad Chatha both went inside the petrol pump office and saw Faqir Muhammad, Security Guard and Hafiz Muhammad Younas, Cashier lying severely injured whereas Khadim Hussain, Helper was also sitting in a corner injured and frightened. Many things were also lying scattered in the room. Cash drawers were also broken. Khadim Hussain, Helper told them that all the 3 culprits had injured Hafiz Muhammad Younas by fire-arm and Faqir Muhammad by a dagger upon offering resistance and had also injured him on the mouth by pistol butt. He also informed them that an amount of Rs.4,444 lying in the cash drawers and remote control bell and a .12 bore shot-gun No.27907/SBBL licensed in the name of Ashraf Sugar 'Mills along with cartridge bandolier and identity card of Khadim Hussain and injured Hafiz Muhammad Younas were also snatched by them. The complainant and Iftekhar Ahmad Chatha made arrangements for sending injured Faqir Muhammad and Hafiz Muhammad Younas to the hospital. At 5-45 hours the complainant submitted a written complaint in Police Station, Musafirkhana, District Bahawalpur, where F.I.R. No.377/92 was recorded on the same date.
2. Injured Faqir Muhammad, Security Guard at the Pump was inflicted one would by a sharp-edged weapon which caused his instant death. This injury was allegedly caused by Muhammad Rafique alias Muhammad. Injured Hafiz Muhammad Younas got 4 fire-arm injuries on different parts of his body while Khadim Hussain, Helper had received an incised wound on his mouth which was declared as a simply injury .
2. The Investigating Officer recovered one empty cartridge of 7 mm and one empty cartridge of .12 bore shot-gun from the spot on the day of occurrence, as also blood-stained earth was picked up from inside the petrol pump office.
3. During investigation appellant Shabbir Ahmad alias Shera, appellant Muhammad Rafique alias Muhammad and acquitted accused Muhammad Aslam alias Tundi were implicated. They were already in judicial lock-up in Police Station Ahmadpur East in another case and they were interrogated by the Investigating Officer on 17-4-1993. On 20-4-1993 identification parade of the accused was held by P.W.7 Abdus Samad Wherein P.W.1 Hafiz Muhammad Younas, injured witness, and identified appellant Shabbir Ahmad alias Shera and appellant Muhammad Raft alias Muhammad. P.W.3 complainant Major (Retd.) Muhammad Alcram also identified both of them.
P.W:5 injured Khadim Husain also identified them.
4. On 23-4-1993 dagger, Exh.P.1 was recovered by the Investigating Officer from a deserted place near the petrol pump in question at the potation of appellant Muhammad Rafique alias Muhammad. On the same date appellant Shabbir Ahmad alias Shera produced copy, Exh.P.2, of identity card of injured Hafiz Muhammad Younas from his own house in Faisalabad.
6. After investigation all the 3 accused were sent up for trial before Additional Sessions Judge, Bahawalpur, who charged all of them under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under sections 302, 324, 337/34, 411, P.P.C. All the 3 accused pleaded not guilty to the charges and claimed trial. The State produced 17 witnesses in proof of the prosecution case, out of whom both the injured witnesses Hafiz Muhammad Younas and Khadim Hussain appeared as P.W.1 and P.W.5 respectively whereas the complainant appeared as P.W.3 and Iftekhar Ahmad Chatha, Assistant Security Officer appeared as P.W.4. All the 3 accused made depositions under section 342, Cr.P.C. But none of them made any deposition on oath or produced any defense evidence.
7. After conclusion of the trial the learned Additional Sessions Judge acquitted accused Muhammad Aslam alias Tundi and convicted and sentenced appellants Shabbir Ahmad alias Shera and Muhammad Rafique alias Muhammad. For the offence under section 302, P.P.C.
Accused Muhammad Rafique alias Muhammad has been sentenced to death and to pay a fine of ks.50,000 as compensation under section 544-A, Cr.P.C., or in default to further undergo rigorous imprisonment for 6 months. Accused Shabbir Ahmad alias Shera has been sentenced to life imprisonment being responsible for sharing common intention for Qatal-i-Amad of Faqir Muhammad and to pay a fine of Rs.25,000 as compensation under section 544-A, Cr.P.C. Or in default to further undergo rigorous imprisonment for 6 months. He has also been sentenced to undergo rigorous imprisonment for 3 years under section 411, P.P.C. For the offence under section 324, P.P.C. Both the accused have been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000 or in default to further undergo rigorous imprisonment for 2 years each. For the offence under section 379, P.P.C. Both the accused have also been sentenced to undergo rigorous imprisonment for 3 years. Convict Shabbir Ahmad alias Shera has challenged his conviction and sentence by Criminal Appeal No.286/L of 1994 in hand whereas convict Muhammad Rafique alias Muhammad has challenged his conviction and sentence by Criminal Appeal No.315/L of 1994, sent from jail. The learned Additional Sessions Judge also forwarded a Murder Reference No.2/L of 1995. Since both the appeals and the murder reference have arisen from the same judgment, they are being disposed of by single judgment being written in Criminal Appeal No.286/L of 1994 in hand.
8. We have heard learned counsel for the parties at length who also led us through the entire record of the case.
9. None of the culprits was known to any of the ocular witnesses from previously. The occurrence took place'at about 4-30 a.m. On the 16th day of the month of November. It is to be kept in mind that by the middle of November at 4-30 a.m. There is more than sufficient darkness. The two injured witnesses P.W.1 Hafiz Muhammad Younas and P.W.5 Khadim Hussain might have seen the accused with some clear vision because they both were present inside the room where the accused were alleged to have committed the offence but the complainant P.W.3 Major (Retd.)
Muhammad Akram only saw them when they were running towards the road and P.W.4 Iftekhar Ahmad Chatha also saw them running away. In such a dark time of the night it was not possible for the complainant and P.W.4 to clearly see the culprits and then to be able to identify them. The culprits were not known to and had not been earlier seen by both of them and when they saw them they were running and it is highly doubtful whether in such a situation these two witnesses could clearly see their faces and could identify them. The culprits were not only at some distance away from both the witnesses but were also running and the darkness of the night had thrown a further shadow of doubt. It was, therefore, entirely impossible for these two witnesses to have clearly seen the features of each of the culprits and then be able to identify them after 6 months. In so far as the question of identification of the culprits by the two injured eye-witnesses is concerned, that matter has also become very doubtful. Although the F.I.R. Did not disclose that the culprits had muffled their faces, but at the time of trial P.W.5 Khadim Husain deposed that the culprits had muffled their faces and the features of both of them were not visible. Similarly this witness further stated that the culprits were also clad in Chaddars. The testimony of both these injured eye-witnesses with regard to the identification of the culprits has not only become conflicting but has also become very doubtful. The evidence produced in this respect does not clearly establish whether the culprits had not concealed their faces or they had muffled them up. If the injured eye-witnesses had seen the unconcealed faces of the culprits then the same could have been precisely disclosed in the F.I.R.
Which was recorded more than one hour after the occurrence and the factum of identity of features of the culprits could have been verified by the complainant. Both the injured eyewitnesses were also examined under section 161, Cr.P.C. a short time after the occurrence but none of them disclosed the features of any culprit therein. This would also suggest that the injured eye-witnesses were also not able to note the features of the culprits or the latter had muffled their faces and so the same could not be identified.
10. The identification parade of the culprits would also not be of any help. They were already in the lock-up when they were interrogated. The identification parade took place 6 months after the occurrence. The Investigating Officer had first interrogated them in the lock-up on 17-4-1993 then he arrested them and then identification parade was held. There are strong grounds to believe that the culprits were shown to all the aforesaid 4 witnesses before the identification parade was held.
11. The recoveries on 23-4-1993 of the dagger at the potation of appellant Muhammad Rafique alias Muhammad and the copy of identity card of Hafiz Muhammad Younas at the potation of appellant Shabbir Ahmad alias Shera, also do not help and advance the prosecution case in any way. The dagger was not found stained with blood. Moreover no evidence was brought on the record to show that it was the weapon of the offence. It is also doubtful that appellant Shabbir Ahmad alias Shera may had taken away the copy of identity card of Hafiz Muhammad Younas when he was leaving the place allegedly after committing the crime and it is even more doubtful that he should have kept the same safely in a box in a room of his house. This was definitely incriminating evidence and nobody would take the risk of preserving it with himself. On the contrary the first impulse of even an ordinary prudent man would be to get rid of it at the first available opportunity.
It shall thus be seen that the matter of recovery of the dagger and the identity card, which were used as corroborative incriminating evidence against the accused in prosecution evidence, had become doubtful and very suspicious.
12. The net result of the above discussion is that there was neither proper identification of the culprits, nor there was brought any other incriminating evidence and the State had failed to prove the guilt of both the appellants by producing cogent and convincing evidence. It is also very significant that on the basis of the same evidence one of their co-accused Muhammad Aslam was acquitted. He was also not identified by any of the eye-witnesses.
13. For the aforesaid reasons both the appeals are accepted. The conviction and sentences of appellants Shabbir Ahmad alias Shera son of Muhammad Siddfq and Muhammad Rafique alias Muhammad son of Rhea Khan awarded by the learned Additional Sessions Judge, Bahawalpur on 27-9-1994 are set aside. They are acquitted of the offences for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case.
' The Murder Reference No.2/L of 1995 is not confirmed.