' KH. MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,62 of 1992 filed by Abdul Rehman and Criminal Appeal No,273(J) of 1992 filed by Ghulam Akbar. They were convicted and sentenced as follows:-- "Abdul Rehman appellant was convicted to undergo death sentence on two counts under section 302/34, P.P.C. With a fine of Rs,50,000 on two counts, in default three years' R.I. Half of the fine if recovered was ordered to be paid to the legal heirs of the two deceased persons. He was further convicted and sentenced under section 392/397/34, P.P.C. To undergo 10 years' R.I. With a fine of Rs,50,000 in default three years' R.I. Half of the fine if recovered was ordered to be paid to Nadeem Abbas P.W.
' As far as Ghulam Akbar was concerned, he was convicted and sentenced under section 392/397/34, P.P.C. To undergo 10 years with a fine of Rs,50,000 or in default of payment of fine to further undergo three years' R.I. Half of the fine if recovered was ordered to be paid to Nadeem Abbas P.W. As compensation for the ornaments of gold robbed from his house.
' Muhammad Aslam was also tried in absentia and was convicted and sentenced as that of Abdul Rehman appellant. It may also be mentioned here that three other co-accused namely Ghulam Shabbir, Azar and Hameed Ullah were tried in absentia and were acquitted. The convicted accused were also given benefit of section 382-B, Cr.P.C."
' The occurrence in this case took place at 1-30 a.m. On the night between 22/23-6-1990, while the F.I.R. Exh.P.R./1 was registered at 4-30 a.m. On 23-6-1990 on the statement of Nadeem Abbas P.W.11 which is stated briefly as under:-- "On the night between 22nd and 23rd of June, 1990 Nadeem Abbas, complainant (P.W.11) along with his brother Azhar Abbas (P.W,12), Kazim Abbas, Qaisar Abbas and Summar Abbas (given up P.Ws.) were s:,eping in an open place of his Dera, situated in Mauza Bait Fateh Khan, District D.G. Khan at about 1-30 a.m. (midnight), four persons armed with Kalashnikovs and rifles tress-passed into Dera and on the points of their weapons took them in a room of Dera where they were tied and closed.
However, one of them, namely, Kazim Abbas (P.W.12) managed to escape through a window of said room and informed the ladies of his family who left the house. The said four persons, then, reached the house of complainant and robbed away ornaments of gold, watches, Motorcycle No,5747/DG and also the licensed gun of the complainant. In the meantime, noise was raised on which, various persons started raising noise and attempted to encircle the accused. The accused were encircled near the wall of Jumma Khan, deceased. The accused started firing and as a result of which, Jumma Khan and Karim Bakhsh, deceased and a mare were injured and succumbed to the injuries at the spot. Leaving behind the robbed motorcycle and the gun, the accused managed to escape alongwith their respective weapons and the looted ornaments etc. Nadeem Abbas proceeded towards the police station but met Waris Ali, S.H.O. At Chowki Kat Garh, where he made a statement (Exh.P.R.)."
2. That the prosecution in order to prove its case examined 19 witnesses and thereafter, the statement of the appellants and their co-accused were recorded under section 342, Cr.P.C. And also one defense witness namely, Shaukat Mahmood son of Ghulam Akbar, appellant appeared as D.W.1 in defense of his father. Thereafter, the learned Judge concluded the trial and announced the above said order, hence, these criminal appeals.
3. Learned counsel for the appellant Abdul Rehman after reading the prosecution evidence submits that both the appellants were not named in the F.I.R. That even the appellants were not previously known to the prosecution witnesses. That no identification parade had held in the instant case for the identification of the assailants. That all the P.Ws. Except Karu Khan (P.W 16) stated that they saw Abdul Rehman appellant for the first time in the Court during the trial. That no recovery of weapon was affected from the appellant Abdul Rehman during the course of investigation of the instant case. He further submits that the 7 mm rifle which was allegedly recovered by the Bhakkar Police from Abdul Rehman on 29-8-1990 even did not match with the crime-empties recovered from the spot according to the report of Fire-Arms Expert, which is Exh.P.DD. He submits that the household articles, golden ornaments and cash amount which was allegedly robbed from the house of the complainant not a single article was recovered from the appellant Abdul Rehman during the course of investigation. He submits that the occurrence took place in the dark hours of night and it was impossible for the eye-witnesses to identify the appellants or their co-accused during the occurrence. He submits that in fact it was a case of no evidence against the appellant Abdul Rehman. On the other hand, learned counsel for Ghulam Akbar, appellant submits that there is no eye-witness against Ghulam Akbar appellant. Moreover, the only evidence against him is of one Nazar Hussain i,e, of extra-judicial confession which is a very weak type of evidence and there is no corroboration from any independent source to the statement of said Nazar Hussain (P.W.13). He further, submits that nothing incriminating was also recovered from Ghulam Akbar and moreover he has been falsely implicated in the instant case due to enmity with Nazar Hussain P.W. And he has also referred the same -in the written statement filed by Ghulam Akbar appellant which is Exh.D.E. At page 168 of the paper book in which elaborate reason for his false implication has been given by Ghulam Akbar, appellant.
4. On the other hand learned State Counsel was unable to controvert the submissions made by the learned counsel for the appellants.
5. We have heard the learned counsel for the appellants at a very great length and have also gone through the evidence recorded by the learned trial Court with their assistance. It is not denied by either of the party that the appellants were not named in the F.I.R. And that the witnesses did not know the appellant Abdul Rehman prior to the occurrence. Nothing incriminating was recovered from both the appellants during the course of investigation. That no identification parade as required under the law had been held to identify the appellants in order to prove whether they took part in the instant occurrence or not. It was also admitted by the P.Ws. That it, was a dark night when the occurrence took place and so it was difficult for them to identify the assailants of two deceased persons. We may mention here that during the cross-examination one of the witness namely, Karu Khan examined as P.W.16, has stated that Abdul Rehman fired with his rifle which hit Jumma Khan and his mare and both died at the spot, but unfortunately the learned defense counsel for Abdul Rehman appellant did not put a single question to the said P.W., although, opportunity was given to him to cross-examine this witness. This witness was again summoned by the Court on 20-2-1992. Even on that date learned counsel for Abdid Rehman appellant did not cross-examine him on that day on the above said fact which Karu Khan stated in his examination- in-chief. In order to reach at a just conclusion and to meet the ends of justice we have gone through the statement of Karu Khan recorded under section 161, Cr.P.C. By the Investigating Officer in which there is no mention that who had fired at Jumma Khan and his mare. We must observe here that this was a criminal negligence on the part of the learned defense counsel of Abdul Rehman appellant but we are unable to convict Abdul Rehman appellant due to the negligence of his learned counsel because this witness Karu Khan never named Abdul Rehman as the murderer of Jumma Khan in his statement under section 161, Cr.P.C. Who had caused his death. As far as Ghulam Akbar appellant is concerned, there is no eye-witness against him, nothing incriminating was'recovered from him during the course of investigation. The only evidence against him is of Nazar Hussain P.W. About the alleged extra-judicial confession made by Ghulam Akbar before him which is a very weak type of evidence. In fact, this case is full of doubts and, as such, capital punishment cannot be awarded on this type of prosecution evidence, so while extending the benefit of doubt to both the appellants we set aside the judgment of the learned Judge, Punjab Special Court Nos.VI and VII (under the Suppression of Terrorist Activities Act, 1975) Multan and Dera Ghazi Khan, camped at Multan, therefore, we allow both the appeals and acquit both the appellants from all the charges. They shall be released forthwith, if not required in any other case.
Death sentence awarded to Abdul Rehman appellant is not confirmed.