' SHEIKH ABDUR RAZZAQ, J.---Briefly stated the facts are that on 14-4-1998, the complainant Muhammad Riaz (P.W.7) along with his brother Muhammad Zubair (since deceased), Muhammad Ijaz (P.W.10) and Abdul Ghafoor (P.W.9) left for Rukh Ghulaman, District Bhakkar for participating in an auction of trees on Car bearing registration No,3220/D.C. After participating in the auction proceedings they returned and reached the Dera of Muhammad Anwar son of Haji Muhammad Yaqoob resident of Sakisar at about 10-30 p.m and stayed in the said Dera for the night. They started talking with Muhammad Anwar aforementioned while sitting on cots adjacent to the cattle shed. At about 12-30 a.m. Three persons whose description has been given in the F.I.R. Armed with pistol and Dagger, 222 Rifles and 8-M.M Rifle emerged and were seen in the moon' light. The said assailants raised lalkaras and directed them to hand over whatever they had in their possession.
Consequently the assailant armed with pistol and Dagger started their personal research one by one and recovered a sum of Rs,21,000 and National Identity Card from his pocket, a sum of Rs,15,000 and photo state copy of National Identity Card from the pocket of Muhammad Ijaz , and a sum of Rs,10,000 along with a photo state copy of National Identity Card from the pocket of Abdul Ghafoor. Thereafter, the assailant with whitish colour ordered his companion to fire at them and consequently the assailant armed with Rifle 222, fired at Muhammad Zubair hitting him on his right shoulder. Resultantly Muhammad Zubair fell down and died on the spot. The assailants then decamped from there. He further alleged that he and his companions could identify the assailants if shown to them.
2. On 15-4-1998 Khalid Mehmood S.I (P.W.12) was posted. As S.I/S.H.O Police Station Jhal Chakian District, Sargodha and at the relevant time was present at Lak Mor when he received the information of this incident and reached the dera and recorded complaint Exh.PF on the statement of the complainant. He found the dead body on the spot, prepared statement of injury Exh.PD and inquest report Exh.PE. He dispatched the dead body for post-mortem examination and secured blood-stained earth vide memo. Exh.PJ, secured four empties vide memo. Exh.PH, secured lamp Exh.P-5 vide memo. Exh.P-1, prepared rough site plan of the place of occurrence Exh.PR and secured last worn clothes of the deceased P-1 to 3 vide memo. Exh.P-A. On 22-4-1998 the accused Altaf Hussain, Bahadur Khan and Amir Mukhtar were arrested. He moved an application Exh.PP for their identification test. On 24-4-1998 he got identification parade conducted through Riaz Muhammad Cheema, Magistrate, 1st Class (P.W.8). On 23-4-1998 Patwari (P.W. 4) visited the site and on 2-5- 1998 delivered site plans Exh.PB and Exh.PB/1. On 28-4-1998 the accused Altaf Hussain, Bahadur Khan and Amir Mukhtar led to the recovery of Rifle 222, 8 M.M. Rifle and pistol bore 30, along with currency notes which he secured vide memo. Exh.PJ, PK, PL, PM, PN and PO respectively. After completing the investigation he submitted the challan.
3. A charge under sections 302, 392 and 34, P.P.C. Has been framed against the accused to which they pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused, prosecution examined Muhammad Azam M.C.
Moharrir P.W.1 who was given two parcels consisting of blood-stained earth and empties on 15-4- 1998 for keeping the same in Malkhana. On 19-4-1998, he handed over the said parcels to Habib Ullah Constable (P.W.2) for onwards transmission in the office of Chemical Examiner and Forensic Science Laboratory. On 28-4-1998 he was again handed over four parcels containing two rifles and two pistols which he delivered to Habib Ullah Constable P.W.2 on 1-5-1998 for its delivery in office of Forensic Science Laboratory, Lahore. Habib Ullah Constable P.W.2 supported the statement of P.W.1 as mentioned above. Muhammad Sabtain Constable (P.W.3) escorted the dead body on 15-4- 1998. After the post mortem examination he handed over last worn clothes of the deceased Exh.P.1- 3 to the Investigating Officer who secured it vide memo.. Exh.PA. Ahmad Hayat Patwari (P.W.4) visited place of occurrence on 23-4-1998 and handed over site plan Exh.PB and Exh.PB/1 on 2-5- 1998. Dr. Muhammad Latif Cheema P.W.5 conducted the post-mortem examination of Muhammad Zubair on 15-4-1998 and found the following injuries on his body.
1. There was a fire-arm wound of entry 1 x 1 cm making circular hole, with blackening and inverted margins (edges) present in the right shoulder region 5 c.m. From the right shoulder joint.
2. An exit wound of 1/2 x 1/2 c.m. With everted margins present on left side of the chest or on back side of lower part of scapula, 12 c.m. From the vertebral column on the left side on palpation right lumbar fractured at upper end.
' In his opinion death was due to injury No,1. The said injury was of fire-arm and was ante mortem in nature. It was also sufficient to cause death in the ordinary course of nature. Probable time between injury and death was immediate whereas between death and post mortem examination was eleven hours. He issued post-mortem examination report Exh:PC and also signed injury statement Exh.PD and inquest report Exh.PE. Muhammad Imran P.W.6 identified the dead body of Muhammad Zubair at the time of post-mortem examination. Muhammad Riaz .P.W.7 is the complainant and has corroborated his contention appearing in the complaint Exh.FF. He also supported the prosecution version regarding identification of the accused at the time of identification test. Riaz Muhammad Cheema MIC (P.W.8) supervised the identification parade held on 24-4-1998 and produced his report Exh.PQ. Abdul Ghafoor (P.W.9) and Muhammad Ijaz (P.W.10) are eye-witnesses and they have supported the prosecution version. They also identified the accused at the time of identification test held on 24-4-1998. Munir Hussain A.S.I. P.W.11 recorded formal F.I.R. Exh.PF/1 on the basis of complaint Exh.PF on 15-4-1998, Khalid Mehmood S.I (P.W.12) is the Investigating Officer whose evidence has already been discussed above. The learned Public Prosecutor produced report of Chrmical Examiner Exh.P/S, report of Serologist Exh.PT report of Forensic Science Laboratory Exh.PU and then closed prosecution case.
6. When examined under section 342, Cr.P.C. The accused Altaf Hussain denied the prosecution version and in reply to question No,7 as to why this case has been registered against him stated as follows.
"I am about 16-16 1/4 years of age. I was involved in this case due to enmity between Mehr Khuda Dad Khan Lak, Exh. Senator and Mehr Khuda Dad Khan, Lambardar of village Sakidar because my father is Kardar of Mehr. Khuda Dad Lak, Lambardar and Muhammad Anwar P.W. Is the party man of Mehr khuda Dad Khan Ex. Senator Muhammad Anwar P.W. Was not produced before the Court in the witness-box by the prosecution due to the apprehension that the truth would come out during the cross-examination".
' Similarly accused Amir Mukhtar also denied the prosecution version and ' in reply to Question No,7 stated as follows.
"I and Bahadur Khan my co-accused had remained in Private Service of Muhammad Anwar at whose dera the occurrence had taken place. We had been kicked out by said Muhammad Awar, without paying our wages and we have demanded our wages out ragiously and therefore the said Anwar misled Muhammad Riaz and others and got us falsely implicated in a blind murder of .
Muhammad Zubair deceased. All the witnesses are interested being co-business men."
' The accused Bahadur Khan also denied prosecution version and relied upon statement of his co- accused Amir Mukhtar. None of the accused either examined himself under section 340(2), Cr.P.C.
Or adduced any evidence in defence.
7. After going through the evidence produced by the prosecution, the learned Trial Court convicted the accused Altaf Hussain, Amir Mukhtar and Bahadur Khan under section 302/34, P.P.C. And sentenced each of them to death and fine of Rs,1,00,000 each and in default thereof to further undergo, R.I. And Rs,10,000 each. He further convicted them under section 392/34, P.P.C. And sentenced them to seven years' R.I. Each and fine of Rs,20,000 each or in-default thereof to further R.I. Two years each. He however, did not extend benefit of section 382-B, Cr.P.C. To them.
8. The appellant Altaf Hussain has felt aggrieved and filed instant appeal against his conviction. A Murder Reference No,445-To of 1998 has also been forwarded by the learned trial Court as .
Contemplated under section 374, Cr.P.C. The accused Bahadur Khan and Amir Mukhtar have also challenged their conviction and sentence vide Criminal Appeal No,1089 of 1998. The complainant Muhammad Riaz has also filed a Criminal Revision No,497 of 1998, for the enhancement of sentence to accused Bahadur Khan and Amir Mukhtar as well as, for the enhancement of fine imposed upon them and he further prayed that fine if recovered be directed to be paid to the legal heirs of the deceased as required under section 544-A, C r. PC .
9. As the instant appeal, Criminal Appeal No,1089 of 1998, Murder Reference No,445-T of 1998 and Criminal Revision No,497 of 1998 arise out of the same judgment, so these are being disposed of by this single judgment.
10. We have heard the learned counsel for the appellants as well as, learned counsel for the complainant assisted by the learned counsel for the State.
11. It is submitted by the learned counsel for the appellants that admittedly none of the accused is nominated in the F.I.R. And as such the only evidence connecting them with the commission of those offences rests upon evidence pertaining to recovery of fire-arm as well as, the currency notes and the other piece of evidence against them relates to identification test. While explaining his first contention he admitted that according to the memo of the recovery Exh.PL, Exh.PM, and Exh.PO and sum of Rs,15,300 is alleged to have been secured at the instance of accused Altai.
Hussain, Bahadur Khan and Amir Mukhtar, that this piece of evidence stand falsified by Khalid Mehmood P.W.12 who has deposed that a sum of Rs,9,000 was recovered from Altaf Hussain, a sum of Rs,7,000 was recovered from Bahadur Khan and a sum of Rs,8,000 was recovered from Amir Mukhtar, that as the prosecution version stands filed by their own witness (P.W.12), so, evidence of recovery to the extent of currency notes is of no avail to the prosecution. He further contended that recovery of Rifle 222 Exh.P-6 Rifle 8 MM Exh.P-14 and 30 bore pistol Exh.P-23, from accused Altaf Hussain, Bahadur Khan, and Amir Mukhtar respectively is of no consequence as these weapons have not been connected with the commission of this offence. So far as the evidence pertaining to identification of the accused in the identification test dated 24-4-1998 is concerned, he submitted that it is of no avail as none of the witness who identified the accused have deposed about the role on the basis of which they identified the accused, and as such identification test looses its evidentiary value. He further contended that as per complaint Exh.PF the complainant stayed at the Dera of. Muhammad Anwar at that too in the night at 2.00 a.m, that there is no evidence on record to show as how S.H.O (P.W.12) reached the Dera, as there is nothing in the complaint that some person went to inform police, that incident took place in the dera of Muhammad Anwar, but he was not produced though he was the relevant and important P.W. He further argued that according to the prosecution it was Imran (P.W.6) who was sent to inform police about the occurrence but he (P.W.6) is silent on this point which fact also falsifies the prosecution stand. He also argued that accused were arrested on 22-4-1998, by the S.H.O. (P.W.12) but there is nothing on record to suggest as to how he came to know that accused were responsible for the commission of this offence, as they had not been even named in the complaint, that as per prosecution stand accused are identified in the moonlight, but later on a lamp has been introduced and this improvement also create doubt about the identification of accused, that the witness of recovery, are the brother of the deceased and this fact further makes the recovery proceedings highly unreliable.
12. Mr. Sardar Muhammad Latif Khan Khosa, Advocate for accused Altaf Hussain while adopting the arguments of Mr. Saeed Ihtisham Qadir Shah, Advocate further asserted that unless and until role of the accused is not disclosed by the identifying witness at the time of identification parade, the said identification test has got no value and placed reliance upon, Ghulam Rasool v. The State (1988 SCM R 557), Khadim Hussain v. The State (1985 SCM R 721). He further contended that according to Law identification of each accused should be held separately and in this respect placed reliance upon Muhammad Yaqoob v. The State (NLR 1999 Cr. Law Judgment 375). He further submitted that as per school leaving certificate Mark 'A' of Altaf Hussain, he was born on 14-3-1982 so he was not even an adult at the time of occurrence which took place on 15-4-1998, that as such he could not be convicted under section 302, P.P.C. And sentenced to death. It is thus submitted that prosecution has failed to prove its case against accused beyond doubt and they are entitled to be acquitted.
13. Conversely impugned judgment has been supported by the learned counsel for the State assisted by the learned counsel for the complainant. Learned counsel for the complainant has also reiterated his contention raised in criminal revision.
14. According to the contents of complaint Exh. PF none of the accused is nominated therein. It is fact that their features have been described and it is on the basis of their features that the accused have been arrested in this case. The only evidence collected by the prosecution regarding the involvement of accused, rests upon evidence of recovery of weapons as well as currency notes and of identification test. So far as, evidence of recovery of currency notes is concerned it falls to the ground as the memos of recovery Exhs.PK, PM and PO stand falsified by the Investigating Officer himself while recording his statement as P.W.12. The evidence of recovery of weapons of offence Exhs.P.6, P.14 and P.23 is of no avail these weapons have not been found wedded with the empties recovered from the spot. Thus, evidence of recovery of weapons loses its force. There remains evidence of identification of the accused. This evidence is also of no avail to the prosecution as none of the witnesses disclosed the role of each accused on the basis of which he identified the said accused. This being the factual position, the evidence of identification parade does not come to the rescue of prosecution. Again occurrence has taken place at the Dera of Muhammad Anwar at 2-00 a.m. And there is nothing on the record to show as to how the police came to know about this occurrence at that odd hours of the night. As per complaint Exh. PF none was sent to inform police, so it does not stand to reason as to how S.H.O. (P.W.12) reached there. To fulfil this lacuna prosecution has tried to bring on record the statement of Imran (P.W.6) to show that he was sent to inform police. However, this stand of the complainant Muhammad Riaz (P.W.7) is not supported by Muhammad Imran (P.W-6) while recording his statement. Thus the presence of S.H.O. (P.W.12) at the Dera of Muhammad Anwar remains shrouded in mystery. Again it is evident that Muhammad Anwar has not been examined by the prosecution which fact also raises an adverse presumption against it. It is also fact that initially accused are said to have been identified in the moonlight but later on a lamp has been introduced for their identification which makes the very factum of identification doubtful.
15. For what has been stated above, we A are convinced that prosecution has miserably failed to bring home guilt to the accused beyond reasonable doubt and the impugned judgment is not sustainable. Accordingly appeal is accepted and all the appellants are hereby acquitted. They are ordered to be released forthwith if not required in any other case.
16. With the acceptance of this appeal the Criminal Appeal No,1089 of 1998 also stands accepted.
Murder Reference is answered in negative and Criminal Revision No,497 of 1998 also stands dismissed.