' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 1179 of 1998 filed by Muhammad Rafique alias Sahib, appellant who was convicted under section 302/34, P.P.C.
And sentenced to imprisonment for life and compensation of Rs, 1,00,000 to be paid to legal heirs of the deceased as required under section 544-A, Cr.P.C. With the benefit of section 382-B, Cr.P.C. By the Judge Special Court (Suppression of Terrorist Activities) Gujrat vide judgment, dated 24th November, 1998.
2. Occurrence in this case had taken place at mid-night (1.30 a.m.) on 18-1-1996 at a place which is 2 kilometers from Police Station City Lalamusa, District Gujrat while the matter was reported by Shaukat Ali through Exh. P.G. At 2.55 mid-night (on the same day and the formal F.I.R. Exh. P.G./1 was recorded by Safdar Ali, Head Constable.
3. Brief facts of the case were that on 18-1-1996 at about 9 p.m., Zahid Pervaiz (deceased) went to the house of Malik Muhammad Mushtaq on a motorcycle in connection with a marriage ceremony.
At about 1.15 mid-night, complainant Shaukat Ali along with his brother Arif and Wan son of Ikram also proceeded to the house of aforesaid Mushtaq because Zahid Pervaiz had not returned till then.
When the complainant and his companions reached near the Ihata of Boota, they saw Zahid Pervaiz coming on a motorcycle. They also saw that Khalid Rafique alias Sahiba and Arshad, both armed with 30 bore pistols stopped Zahid Pervaiz and then fired at him. The first shot of Arshad landed on the chest of Zahid Pervaiz while the second shot fired by Khalid Rafique hit brother of the complainant on left thigh. Then a third shot was fired by Arshad which hit the motorcycle, Resultantly, Zahid Pervaiz fell down from the motorcycle and succumbed to the injuries.
4. After registration of the formal F.I.R., Muhammad Younis, S,I. (P.W.9) proceeded to the place of occurrence, prepared the injury statement Exh. P.I., inquest report Exh. P.J. And rough site plan Exh.
P.K. He took into possession bloodstained earth vide memo. Exh. P.D. Then he recorded supplementary statement of the complainant. Khalid accused was arrested on 28-2-1996 and he on 7-3-1996 led to the recovery of pistol P.5 which was taken into possession vide memo. Exh. P.B.
The Investigating Officer arrested Muhammad Arhsad on 29-5-1996 who also got recovered pistol P. 3 which was taken into possession vide memo. Exh. P.A. Motorcycle was also taken into possession vide memo. Exh. P.C. After completion of the investigation, both the accused were challenged to face the trial.
5. Prosecution in order to prove its case produced 11 witnesses in all and thereafter the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh. P.O. And that of the Serologist Exh.
P.P. And then closed the prosecution case. After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. After conclusion of the trial, both the accused were convicted and sentenced by the trial Court as stated above.
6. Learned counsel for the appellant after reading the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C' submits that it was an un-witnessed occurrence; nobody was named in the F.I.R.; no identification parade was held in this case; names of the accused have not even been mentioned in the injury statement Exh. P.I. Inquest report Exh, P.J. Has been signed by Irfan and had Irfan knew the names of the assailants till the completion of the inquest report, he must have told the same to the Investigating Officer and then the Investigating Officer, must have mentioned the same in the inquest report Exh. P.J. Further submits that occurrence in this case took place on 18-1-1996 spot was inspected on the same day and the site plan was prepared on 24-1-1996 but till that date on the face of the site plan Exh. P.H. It was written "State v. Unknown accused". He elaborates that till 24-1-1996 the names of the accused were not known either to the complainant or the eye-witnesses. Next submits that both the eye-witnesses namely Shaukat and Han are closely related to the deceased inasmuch as, Irfan is cousin of the deceased while Muhammad Arif, P.W. Is real brother of the deceased. Learned counsel lastly submits that it was a case of no evidence and the appellant is entitled to acquittal.
7. Learned counsel for the State has half-heartedly opposed the submissions made by learned counsel for the appellant.
8. In the instant case, along with the appellant Khalid Rafique, one Muhammad Arshad was also convicted and sentenced to the same terms as of the present appellant. Learned counsel for Khalid Rafique appellant submits that Arshad had not filed any appeal. We also inquired from the office the same fact but reply was in the negative, so we while exercising our jurisdiction under section 561-A, Cr.P.C. Will also take up the case of Arshad along with the appeal of Khalid Rafique on the strength of 1968 PCr.LJ 1118 and 1980 PCr.LJ 264.
9. We have heard, learned counsel for the appellant and the learned State counsel at a great length. In the instant case nobody was named in the FIR., presence of the witnesses is doubtful, they seem to be chance witnesses no source of light was mentioned in the F.I.R., it was mentioned in the F.I.R. That some unknown persons had killed the deceased, no description of the accused was given in the FIR., although in the Court complainant stated that he knew the accused Khalid Rafique and his co-accused Arshad by face previously. Had he knew them he must have given their description in the F.I.R. In the inquest report names of the accused has not been given. Had the complainant made supplementary statement fifteen minutes after registration of the F.I.R. As stated by him in the Court, then names' of the accused must have been mentioned in the brief facts of the inquest report Exh. P.J. In the injury statement of the deceased Exh. P.I. Name of none of the accused was mentioned therein. It is also important to note here that draftsman visited the spot 22-1-1996 while the occurrence took place on 18-1-1996, the site plan was produced before the Investigating Officer on 24-1-1996 and till that time accused were not known because on the face of the site plans Exh. P.H. And Exh. P.H./1 the words written were "State v. Unknown". The presence of the eye-witnesses at the spot who were closely related to the deceased is doubtful because the reasons given by the P. Ws. Of their presence at the spot was that as the deceased did not return to his house till midnight, complainant along with his real brother Arif (not produced) and Irfan P.W.
Started to the place where the complainant had gone and in the way they saw that deceased was being fired by two persons, does not appeal to a man of common prudence. No identification parade was held at all in this case. In the F.I.R. There was no mention of the fact that the accused persons after causing injuries and committing murder of deceased also took away his wrist watch and golden ring although later on those were planted upon Arshad co-accused of the appellant.
So, we are of the considered view, that the eyewitnesses produced by the prosecution, who were closely related to the deceased were not present at the spot. In fact, it was an un-witnessed occurrence and later on due to ulterior motive and The reasons given in statements under section 342, Cr.P.C. Appellant and his co-accused Arshad were named. No motive was given in the F.I.R. For the murder of the deceased. Furthermore, as far as, supplementary statement is concerned, it does not find mention, anywhere in whole of the Code of Criminal Procedure and the Superior Courts time and again have viewed such statements with skeptics for the reasons that same is totally alien to the scheme of procedural law given in Cr.P.C., so we also do not believe the supplementary statement. Even learned counsel appearing for the State has not opposed the submissions made learned counsel for the appellant with vehemence.
' The net result of the above discussion is that the prosecution has failed to prove its case against Khalid Rafique appellant and Arshad accused beyond any shadow of doubt. So, while accepting the appeal of Khalid Rafique appellant and in exercise of power under section 561-A, Cr.P.C. In respect of Muhammad Arshad we set aside the conviction and sentence recorded against both the accused and acquitted them of the charge. Both the accused are in jail, they shall be released forthwith, if not required to be detained in any other case.