' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1146 of 1999 filed by Bashir alias Bashiroo and Iqbal Masih, appellants and Criminal Appeal No,1148 of 1999 filed by Bashir alias .Bawa and Zulifqar, appellants who were convicted and sentenced by Judge Special Court Anti-Terrorism-II, Lahore vide judgment dated 2-11-1999 as under:- {{DATA MISS ARANGE}} Bashir son of Death under section Sardar and Iqbal 10(4) of Ordinance Masih VII of 1979.
7 years' R.I. And to pay a fine of Rs,20,000 each and in default 6 months' R.I. With the benefit of section 382-B, Cr.P.C. Under section 452, P.P.C. And 7 years' R.I. And to pay a fine of Rs,15,000 each, in default 6 months' R.I. Under section 380/34, P.P.C. Sentence under sections 452 and 380/34, P . P. C . Were ordered to run concurrently. Bashir alias Bawa 7 years' R.I. And to and Zulifqar pay a fine of Rs,20,000 each and in default six months' R.I. With the benefit of section 382-B, Cr.P.C. Under section 452, P.P.C. And 7 years' R.I. And to pay a fine of Rs,15,000 each and in default six months' R.I. Under section 380/34, P.P.C.
Sentences under sections 452 and 380/34, P.P.C. Were ordered to run concurrently. {{DATA MISS ARANGE}} ' Murder Reference No,254/T of 2000 for confirmation of death sentence or otherwise shall also be relied through this single judgment.
2. Occurrence in this case had taken place in between the night of 29th /30th August, 1998 in mauza Ratti Pindi at a distance of 12 kilometers from Police Station Sadar Raiwind District Kasur while the matter was reported to the Police through written complaint Exh.P.A/1 by Nazar Hussain at 11-30 on 11-9-1998 and the formal F.I.R. Exh.P.A was recorded by Muhammad Arshad Khan A.S.I. At 12- 30 midnight.
3. Briefly stated the facts of the case are that Nazar Hussain complainant is resident of village Ratti Pindi District Kpur. On the night of 29-30th August, 1998 at about 11-00 a.m., all the accused criminally trespassed into his house, started firing and later on they forcibly took his two daughters, that is, Mst. Shamim Bibi and Sughran Bibi in a separate room and committed Zina-bilJabr with them. The accused also snatched golden ornaments of Rs,8,000.
4. After registration of the F.I.R., investigation of the case was taken over by Amam Ullah, S.I. (P.W.13) and he proceeded to the spot, prepared site plan (Exh.PS) of the place of occurrence; recorded statements of the witnesses there; on the next day medically got examined both Mst. Shamim and Mst. Sughran; on 14-9-1998 recorded the supplementary statement of the complainant; then on 23-1-1999 arrested Zulifqar, Bashir alias Bawa, Iqbal alias Kaka and Bashir alias Bashiroo; at the time of their arrest, .30 bore pistol P.8 was recovered from Zulifqar accused which was taken into possession vide memo. Exh.P.N; similarly, Bashir accused at the time of arrest was also having a .12 bore carbine which was secured vide memo. Exh.P.0, lqbal alias Kaka was also apprehended along with .30 bore mauzar which was taken into possession vide memo. Exh.P.Q; during the remand Bashir alias Bashiroo got recovered a golden ear-ring which was taken into possession vide memo.
Exh.P.H; a golden ear-ring recovered on the pointation of Iqbal Masih alias Kaka was secured vide memo. Exh.P.J; on 2-10-1998 Zulifqar accused got recovered two sughlays (Silver) which were taken into possession vide memo. Exh.P.K; the ornaments were identified by the complainant, Mst. Fatima wife of the complainant and the two victims, all the four accused were also got medically examined from the doctor and after completion of the remaining formal investigation, all the four accused were sent to jail. It may be noted here that Nasar alias Kali was absconder.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all. Then the learned DDA tendered in evidence reports of the Chemical Examiner as Exh.P.0 and Exh.P.J, death certificate mark A of Mst. Sughran and closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and in their defence produced 3 D.Ws. However, after conclusion of the trial, the accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that Bashir alias Bawa son of Chanar Din and Zulfiqar son of Bashir, appellants in Criminal Appeal No,1148 of 1999 have served out their sentence and have also been released from Jail. Further submits that the appellants were not named in the F.I.R., the F.I.R.
Was got recorded after a delay of 11 days without any proper explanation, no identification parade was held in this case; Mst. Shamim Bibi and Mst. Sughran Bibi bet:: alleged victims were got medically examined after 11 days, mere report of the Chemical Examiner with regard to swabs being stained with semen is not sufficient to connect the appellants with the commission of offence because both the victims ladies are married and that Mst. Sughran Bibi died even before trial. Concluding his submissions, learned counsel submits that prosecution had failed to prove its case against the appellants beyond any shadow of doubts.
7. On the other hand, learned counsel for the State submits that Mst. Shamim Bibi the victim in this case had fully implicated both the appellants, that ocular account is medical evidence, that there was no previous background of enmity between the parties to falsely implicate the appellants. He in nut shell supports the judgment of learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant, occurrence had taken place in between the night of 29/30-8-1998. Nazar Hussain is complainant and is father of Mst. Bashiran and Mst. Sughran Bibi, the alleged victims in this case. The matter was reported to the police at 11-30 p.m. On 10-9-1998 while the occurrence had taken place in between the night of 29/30-8-1998. There is no explanation with regard to delay of 11 days in reporting the matter to the police. The application Exh.P.A/1 though is dated 30-8-1998 and the complainant tried to explain that the police did not register the case but the Investigating Officer Aman Ullah S.I. P.W.13 stated In categorical terms that before 10-9-1998 nobody contacted him. This inordinate delay in reporting the matter to the police specially when both the victim ladies are married woman casts serious doubt on the prosecution story. The report of the Chemical Examiner with regard to swabs taken from the vagina of both the ladies being stained with semen does not render any corroboration to the prosecution case because the victim ladies were living with their husbands and did not report the matter to the police for 11 days. There was no hurdle in the way of the victims to get them medically examined.
9. The moot point in this case is whether the present appellants were named in the F.I.R. Admittedly, nobody was named in the F.I.R. Mst. Sughran Bibi died even before the trial. Mst. Shamim did not name anyone in her statement recorded under section 161, Cr.P.C. Though in her statement before the learned trial Court she made many improvements by ascribing roles to all the accused. It is very sad to observe that the learned defence counsel did not 'confront Mst. Shamim with her statement under section 161, Cr.P.C. In order to reach at a just decision we have taken judicial notice of statement of Mst. Shamim recorded under section 161, Cr.P.C. And we find that no one was named in the said statement. No identification parade was ever held in the instant case.
10. Reply to Question No,10 given by Bashir alias Bawa a co-accused of the appellants (who has served out his sentence) in his statement under section 342, Cr.P.C. Is also relevant and may be reproduced:- "There is civil litigation pending between myself and between the complainant party about Darbar of Soffi Baba where the complainant is residing and as such the complainant in order to put pressure upon me involved me in the present case falsely. All the P.Ws. Are related to the complainant and as such they deposed against me."
A perusal of the above quoted reply shows that there was civil litigation going on between the complainant and the accused. No independent witness has been produced by the prosecution.
11. In a case of capital punishment, evidence must have come from an unimpeachable source and must be confidence-inspiring but the evidence in the instant case neither is confidence-inspiring nor has come from any independent source. To our mind, the case is full of doubts. Delay of 11 days in reporting the matter to the Police, nobody having been named in the F.I.R., no identification parade having been held, the victim ladies being married, the victim ladies having been medically examined after 11 days of the occurrence and improvements in the statement of Mst. Shamim the alleged victim in her statement under section 164, Cr.P.C. All lead us to the conclusion that the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt. Merely on the basis of report of the Chemical Examiner being positive is no ground to award or maintain conviction on a capital charge when the victim is a married lady.
12. For all that has been stated above, C we accept the appeal (Criminal Appeal No,1146 of 1999) filed by Bashir alias Bashiroo and Iqbal Masih, appellants, set aside the conviction and sentence recorded against them and acquit them of the charge. Both the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. The death sentence of Bashir alias Bashiroo and Iqbal Masih is NOT confirmed. Murder Reference is replied in the NEGATIVE.
Criminal Appeal No,1148 of 1999 has become infructuous and disposed of accordingly .