1. ' RASHID AZIZ KHAN, J.--- Muhammad Siddique (26), Muhammad Akram (22), Iftikhar alias Doctor
(26) and Tariq Mehmood alias Tani (20) were sent up by Police Station Mochi Gate, Lahore for an offence under section 302/34, P.P.C. Read with section 17, Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979). Additional Sessions Judge, Lahore vide judgment, dated 28-2- 1991, gave the benefit of doubt and acquitted Tariq Mehmood and Iftikhar of the charge.
2. Muhammad Siddique alias Noori was, however, found guilty under section 302/34, P.P.C. And sentenced to death. Muhammad Akram was also found guilty under section 302/34, P.P.C. And sentenced to imprisonment for life. Each of them was also sentenced to fine of Rs,20,000, or in default of payment of fine undergo further R.I. For four years. They were further convicted under section 392, P.P.C. And sentenced to ten years' R.I. Each with a fine of Rs,20,000 each, or in default of payment of fine undergo further R.I. For four years each. It was directed that the fine, if recovered, the amount shall be paid to the legal heirs of the deceased. Muhammad Akram was also given the benefit of section 382-B, Cr.P.C. The convicts have appealed. Case is also before us for confirmation of the death sentence. Both the matters shall be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.1.R. Exh.P.F./1, was to the effect that first informant Sh.
3. Abdul Latif had two brothers. Eldest brother Abdul Karim with his wife Mst. Zarina Begum used to live inside Mochi Gate One Mistri Nazra, who was doing repair work of their house for the past four days, had worked as Chowkidar much earlier. On 5-9-1988 when first informant's brother Abdul Karim was present with the first informant in his shop and his wife was alone at home, at about 3 p.m.
4. Said Nazra was working in the kitchen and another person was standing with him. On inquiry by sister-in-law of the first informant, Nazra informed that he was son of Gujjars and wanted some work to be done. On the asking of first informant's sister-in-law they went down and hid themselves somewhere. At about 2 at night when first informant's brother and his wife were sleeping in their respective rooms, said Nazra and his co-accused tied the first informant's brother and his wife from their hands and legs and gagged their mouths. On account of gagging of mouth Abdul Karim died. While leaving the accused persons took valuables from the house.
5. ' Occurrence in this case took place on 6-9-1988 at 2 at night inside the house of Abdul Karim, deceased, situated in Mochi Gate, Lahore, one furlong from Police Station Mochi Gate. Complaint Exh.P.F. Was made the same day on 6-9-1988 at 8 a.m. At Chowk Mehraj Din by Sh. Abdul Latif, P.W.8, which was recorded by Zulficiar Ahmad, Inspector/S.H.O., P.W.14, on the basis of which formal F.I.R. Exh.P.F./1 was drawn the same day by Bashir Ahmad, P.W.10 at Police Station Mochi Gate, Lahore.
6. ' Zulfigar Ahmad, the then S.H.O. P.W.14 after recording the complaint Exh.P.F. Sent the same to the police station for registration of the case and himself went to the spot. He prepared the inquest report Exh.P.R. And injury statement Exh.P.S. Of the deceased and sent the dead body for autopsy.
7. From the spot he took into possession loin cloth P.2, pieces of cloth P.3 and P.4, one medical tap P.5, which were secured vide memo. Exh.P.D. Got attested from the witnesses. He got the site-plan Exhs.P.E. And P.E./1 prepared from the Draftsman and gave his notes in ,red ink thereunder.
8. Muhammad Siddique, Inspector, P.W.15, the then S.H.O. Stated that on 28-11-1988 Iftikhar alias Doctor, Muhammad Siddique alias Noori and Tariq Mehmood alias Tani, who were in custody in connection with a case registered under section 402, P.P.C. Also disclosed having committed the present offence. They were formally arrested in the present case as well. Nazir Ahmad, A.S.-I. P.W.17 stated that in his presence on 28-11-1988 the accused persons were arrested. From the personal search of Muhammad Siddique, golden ornaments were recovered. P.W.18 Muhammad Ajmai Qureshi, Inspector was entrusted with the investigation of this case. He verified the investigation and then moved an application for holding of identification parade. Mst. Zarina and Kashif were joined with the identification parade, wherein Tariq and Iftikhar accused were identified. On 16-12- 1988 Tariq accused while in custody got recovered certain golden ornaments which were secured vide memo. Exh.P.L., which was got attested from the witnesses. After usual investigation, he challaned the accused.
9. ' Dr. Ahmad Saeed, P.W.4, on 6-9-1988 while posted as Demonstrator, Department of Forensic Medicine, K.E.M. College, Lahore, at 3-15 p.m. Conducted the post-mortem examination on the dead body of Sh. Abdul Karim and found the following injuries:--
(1) Multiple abrasion in an area of 10 x 10 c.m. On left side of the fact between chin left eye and nose 6 c.m. From left ear,
(2) Multiple abraided area 5 x 2.5 c.m. On the back of left elbow.
(3) Abrasion 9 x 1 c.m. On the back of left forearm 3 c tn. Above the wrist joint.
(4) Multiple bruised ligature marks in an area of 9 x 7 c.m. Around the right fore-arm. 5 c.m. Above the wrist joint.
(5) Abrasion into 5 x 1.5 c.m. On front of left knee.
(6) Abrasion 2.5 x 1 c.m. On the front of right knee.
(7) Multiple bruised marks in an area of 15 x 10 c.m. On the front of left leg 4 c.m. Above the left leg.
10. ' In his opinion, the injuries were ante-mortem, but the death had occurred on account of asphyxia.
3. Prosecution in support of its case had produced 18 witnesses in all.
11. ' P.W.1 Nazir Ahmad had witnessed the arrest of the accused and recoveries made at the instance of Muhammad Siddique and Iftikhar. Syed Riaz Hussain, M.I.C., P.W.2 was directed on 7-12-1988 to supervise the identification parade of Iftikhar Ahmad and Tariq Mehmood. Mst. Zarina, P.W., correctly identified Iftikhar and Tariq Mehmood accused. Thereafter, Kashif, P.W., was asked to identify, who also correctly identified both the accused. P.W.3 Ghulam Mustafa, F.C., had escorted the dead body to the mortuary. Tanveer Ahmad, P.W.5 on 6-9-1988 after hearing some noise entered the house of Mst. Zarina and found her hands and legs tied and mouth was gagged. He untied her and thereafter, saw Abdul Karim, who was also tied from legs and arms and had already expired. P.W.6 Syed Abdul Rahim Kazmi, Draftsman had prepared site-plan Exhs.P.E and P.E./1 on the directions of police. P.W.7 Kashif Malik on the night of the incident had seen the accused persons standing in front of the house of the deceased and thereafter identified them in the identification parade. Abdul Latif, P.W.8 had got the case registered, though himself did not see the occurrence.
12. P.W.9 Mst. Zarina Begum had deposed, regarding the ocular account. Muhammad Sharif, S.-I., P.W.12 had witnessed the recovery of certain golden ornaments effected at the instance of Iftikhar and Siddique and signed the memo. As well. P.W.13 Muhammad Khalid Zauq, M.I.C. Was deputed to supervise the identification parade in respect of Muhammad Akram appellant, wherein Mst. Zarina Begum could not identify him. Kashif, P.W., however, identified him. Zulficiar Ahmad, P.W.14, S.H.O.
13. Had initially recorded the complaint Exh.P.F. And thereafter investigated the case. Muhammad Siddique. Inspector/S.H.O., P.W.15 had partly investigated the case. Nazir Ahmad, A.S.-I. P.W.17 had witnessed the recovery of incriminating articles effected at the instance of Siddique accused.
14. Investigation was verified and challan was ultimately submitted by Muhammad Ajmal, Qureshi, Inspector, P.W.18.
15. ' At the conclusion of prosecution evidence, appellants were examined without oath wherein they refuted the prosecution allegations and pleaded innocence. They neither appeared in their defense on oath nor produced any defense evidence.
4. It was contended by learned counsel for the appellants that the appellants were neither mentioned in the F.I.R. Nor any description was given. Contended that no identification parade in respect of Siddique appellant was held in spite of the fact that he was neither mentioned in the F.I.R. Nor by Mst. Zarina Begum in her statement under section 161, Cr.P.C. Argued that the recoveries effected at the instance of the appellants cannot be taken into consideration because the only witness from public in cross-examination admitted having appeared in number of cases for the prosecution and in such circumstances he was a stock-witness. Argued that as far as Akram accused is concerned, Mst. Zarina Begum failed to identify him in the identification parade.
5. We have heard the learned counsel and gone through the file. Prosecution in order to establish its case has relied upon the ocular account furnished by Mst. Zarina, P.W.9 and sought corroboration from the statement of one Wajtakkar witness Kashif Malik, P.W.7. As far as Mst. Zarina, P.W., is concerned, she disclosed the commission of the offence to her brother-in-law Sh. Abdul Latif, P.W.8, who reported the matter to police. According to him, the occurrence had been committed by one Nazra with another unknown person. She admitted that she had informed her brother-in-law who had reported the matter to the police and she had told him that Nazra had committed the occurrence. In Court their stance was changed from Nazra to the present appellant Siddique, A who, according to them was alias Noori. There is no evidence whatsoever which could indicate that Muhammad Siddiqui on the fateful day was present in the house of Mst. Zarina Begum, P.W.9. Identification parade qua him was not conducted. He was not correctly described by any witness. As far as Muhammad Akram appellant is concerned, he was neither named as an accused by the first informant or by Mst. Zarina nor she could identify him in the identification parade. Even otherwise, she has already been disbelieved qua Tariq and Iftikhar, acquitted accused, and, in such circumstances, it would be very difficult to rely upon her uncorroborated statement which otherwise also does not inspire confidence. As far as Kashif, P.W.7 is concerned, we have carefully gone through his statement and are of the view that it does not inspire confidence. According to him, on the relevant day at 12-30 at night he was returning home when he saw the appellants with their acquitted accused standing near the house of Abdul Karim deceased. The witness has already been disbelieved as far as the acquitted accused are concerned. He did not see them committing any overt act, did not notice them being armed with any weapon, nor the witness has stated that on the following day he learnt about the incident. In such circumstances, it does not establish whether he saw the accused, if at all, he saw them was it on the night of occurrence or at some other time.
16. As far as the recoveries from the spot are concerned, they do not connect the appellants with the alleged occurrence at all. As far the recoveries at the instance of the appellants are concerned, Mst. Zarina, P.W.9 did identify the articles as her property but the recoveries simplicity from the appellants would not establish their guilt for the offence they have been charged for. We do not propose to convert the sentence to section 411, P.P.C. Because we have noticed that they were arrested in 1988 and till today they are behind the bars and were not released on bail at any stage.
17. ' The upshot of the discussion is that the prosecution has not been able to prove its case beyond doubt. Therefore, extending the benefit of doubt, the appeal is accepted, conviction and sentences of the appellants are set aside. They shall be released forthwith if not required in any other case.
18. ' Death sentence is not confirmed.