1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 14-T of 2000 filed by Wajid Hussain and Qasir Mahmood, appellants, who were convicted and sentenced by the learned Judge Special Court, Anti-Terrorism, Rawalpindi vide his judgment, dated 17-1-2000 as under:
(1) Wajid Hussain, appellant imprison-ment for life under section 302(b), read with section 34, P.P.C.
2. Seven years' R.I. Under section 398, P.P.C. Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
(2) Qasir Mahmood, appellant, death under section 302 (b) read with section 34, P.P.C. Seven years'
3. R.I. Under section 398/34, P.P.C.
4. ' Criminal Revision No,7 of 2000 filed by Haji Muhammad Bashir, complainant for the ehancement of sentence of Qasir Mahmood and for awarding compensation shall also be disposed of through this single judgment.
5. 1 Occurrence in this case had taken place at 11-30 mid-night on 23-8-1999 at a distance of 8 k.Ms. From Police Station Chotala, District Jhelum while the matter was reported to the police by Haji Muhammad Bashir complainant at 12-15 mid-night on 24-8-1999 and the formal F.I.R. Exh.P.D. Was recorded by Muhammad Sarwar, Inspector/ S.H.O.
3. Briefly stated the facts of the case are that on 23-8-1999 at 11-30 mid-night in the area of village Khai Kotli, three unknown persons in furtherance of their common intention entered in the house of Muhammad Siddique armed with deadly weapons so as to commit decoity. Muhammad Siddique resisted and on his resistance all the three accused fired at him with their respective weapons as a result of which he succumbed to the injuries at the spot.
4. After registration of the formal F.I.R., Muhammad Sarwar, Inspector P.W.12 along with other Police Officials went to the place of occurrence, prepared injury statement Exh.P.K and inquest report Exh.P.K/1 of the deceased, took into possession the piece of bed-sheet P.14 vide a recovery memo.
6. Exh.P.F, he also took into possession three empties vide memo. Exh.P.G., also took into possession a bag P.1 which was opened from where a photo copy of the identity card of Qasir Mahmood and one identity card of Qasir Mahmood P.2, photo copy of identity card of Ghaffar Baig, P.4, one Kara P.5, one coloured photo, passport size P.6 of Ghaffar along with currency notes and clothes were taken into possession vide memo. Exh.P.D. From the identity card of Qasir Mahmood, the P.Ws.
7. Identified him as a tall man amongst the two other accused, from photo copy of identity card of Ghaffar Baig and coloured photograph the P.Ws. Identified him as a medium size man, on 3-9-1999 the Investigating Officer recorded the statements of the P.Ws. Regarding identification of Qasir Mahmood and Wajid Hussain, arrested Wajid Hussain on 3-9-1999, who on 5-9-1999 got recovered pistol P.6 (sic) which was taken into possession vide memo. Exh.P.H. On the same day, on the pointation of the complainant, Ghaffar Baig was arrested from Lahore More, Jhelum, also recorded the statements of the P.Ws. Regarding identification of the accused, on 7-9-1999 Ghaffar Baig got recovered pistol .30 bore P.18, which was taken into possession vide memo. Exh.P.I., Qasir Mahmood was arrested on 9-9-1999 from the custody of Anti-Decoity Cell, District Jhelum, Qasir Mahmood on 15-9-1999 while in custody got recovered Mouser P.19 which was taken into possession vide memo.
8. Exh.P.J and after completion of the investigation, the accused were challenged to face the trial.
5. At the trial, prosecution in order to prove its case examined 12 witnesses in all, then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.O. Report of the Serologist Exh.P.P., report of the Forensic Science Laboratory Exh.P.Q and closed the prosecution case, thereafter, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication. After conclusion of the trial, the accused were convicted and sentenced by the learned trial Court as stated above.
9. ' Learned counsel for the appellants after having gone through the entire material available on record submits that it was a night time occurrence, appellants were not known to the P.Ws., no identification parade was held, no motive was mentioned either in the F.I.R. Or before the learned trial Court for committing the murder of the deceased, Inayat Ullah P.W. Witness of recovery is resident of a place 100 miles away from the place of occurrence, it is not probable that while leaving the place of occurrence the appellants would leave behind the bag containing identity card, photographs and other incriminating material to connect them with the commission of offence, nothing was looted from the house of the deceased, the investigation of this case snacks pending, the complainant is brother-in-law of the deceased, so in the natural course of events he should have been present in his own house with his family, recovery of pistol and crime empties have been planted upon the appellants and were sent to the fire-arm expert with an unexplained and inordinate delay, no independent witness has been produced by the prosecution, as the recoveries are concerned, which is a clear violation of section 103, Cr.P.C., the appellants are innocent and the police in order to show its effenciey and to avoid the wrath of superiors coined up the story in the present form by fabricating false recoveries. Concluding his submissions, learned counsel submits that the prosecution has failed to prove the case against the appellants, beyond any shadow of doubts.
10. ' On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that there was no previous background of enmity to falsely implicate the appellants, identification parade is not necessary according to law and identification in Court is sufficient to maintain the conviction, incriminating articles were recovered from the house of the deceased which were left by the appellants and the prosecution has been able to prove its case against the appellants. Both the learned counsel support the judgment of the learned trial Court.
11. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, three accused were tried namely Wajid Hussain, Ghaffar Baig and Qasir Mahmood. They all were convicted and sentenced by the learned trial Court. As per report; which we got from the office, Ghaffar Baig has not filed any appeal till today.
12. However, we have asked learned counsel for the appellants also to argue the appeal on behalf of Ghaffar though he is not appellant before this Court because the learned counsel for the defence has prepared the whole case.
13. The occurrence took place in the dark hours of the night, i,e, at 11-30 mid-night, nobody was named in the F.I.R., parties were not known to each other. From the bare perusal of the F.I.R., the question begs the answer as to for what purpose and with which motive the appellants committed the murder of the deceased. The appellants did not loot any article from the house of the deceased, in decoity cases the sole consideration for the accused is to take away the valuable belonging of the inmates of the house but in the instant case, according to prosecution itself, nothing was looted nor any attempt was made. The Investigating Officer was so inefficient that he did not get the identification parade held in jail from the Magistrate, so the main evidence on which the prosecution could have relied has not been procured by the Investigating Agency. Even no descriptions of the assailants was given in the F.I.R. So far as, recovery of the bag and the articles lying therein, such as, identity cards, photographs and other incriminating material concerned we do not believe because it does not appeal to reason that the accused after committing the murder would leave their articles which would connect them with the commission of crime. These things are not mentioned in the F.I.R. And also not in the brief facts of the inquest report Exh.P.K/1. The Investigating Officer after the occurrence went at the spot took into possession the bag and articles containing therein P.1 to P.13 vide recovery memo. Exh.P.E., the piece of blood-stained Chaddar was also taken into possession at the same time from the spot vide memo. Exh.P.F., both these documents were written by two different persons in two different inks, while the author is the same, similarly, in Column No,22 of the inquest report, the words also appear to have been written afterwards, all this has been done in order to make the recoveries believable and natural, there were four injuries on the person of the deceased, three were entry wounds and one exit wound, in order to bring the medical evidence in line with the ocular account three persons have been .Entangled, the led bullet recovered from the dead body of the deceased was never sent to the fire- arm expert to prove as to whether it was fired from the pistol recovered on the pointation of the appellants further Inayat Ullah the recovery witness is resident of a place 100 miles away from the place of occurrence, he being a married person, in natural course of events, should have been present in his house, no independent witness has been cited as a recovery witness, so there is clear violation of section 103, Cr.P.C., Haji Bashir the first informant is not inmate of the house, where the occurrence had taken place, the police in order to show its efficiency and not to allow this case to become an untraced case has falsely implicated the appellants, in our view, the prosecution case is full of doubts, in a case of capital punishment, the law has been set at rest that the evidence must have come from an unimpeachable source and the only inference which the Court could draw should be that the accused are the actual culprits which is not the position of the case in hand.
14. Resultantly, we accept this appeal not only on behalf of two appellants namely Wajid Hussain and Qasir Mahmood but also on behalf of Mirza Ghaffar Baig who has not filed appeal and set aside the conviction and sentence recorded against them by the learned trial Court. All the three appellants are in jail, they shall be released forthwith if not required to be detained in any other case.
15. Appeal 'accepted.