' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,954 of 2000 filed by Muhammad Akhtar, Muhammad Sharif and Niamat Ali, appellants who were convicted under section 302(b) read with section 34, P.P.C. And sentenced to death with further direction to pay Rs,2 lacs each as required under section Cr.P.C., in default six months' S.I. By the learned Judge Special Court No,III, Lahore constituted under Anti- Terrorism Act, 1997 via judgment, dated 20-6- '1.'100. They were also convicted under section 394/34, P.P.C. And sentenced to imprisonment for life each and a fine of Rs,50,000 each in default thereof, three months' S.I. Each. The appellants were also convicted under section 324/34, P.P.C. And sentenced to undergo 10 years' R.I. With a fine of Rs,50,000 in default three months' S.I.
' Murder Reference No,445/T of 2000 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 8-30 p.m. On 4-7-1999 at a distance of 4 kilometres from Police Station City Pattoki, District Kasur while the matter was reported by Ali .Ahmad at 10-05 p.m. On the same night through complaint Exh.P.K. While formal F.I.R. Exh.P.K./1 was recorded by Muhammad Akbar, Head Constable.
3. Briefly stated the facts of the case are that at about 8-30 p.m. On 4-7-1999, the complainant alongwith Shakeel Ahmad and Saeed Ahmad planned their programme to have a dinner in Alabas Hotel at City Pattoki. They all on their motorcycles started for Pattoki and when reached opposite the graveyard situated by the side of the road, at , that time, three unknown persons armed with fire-arms came out of the sugercane field from the right side and all of a sudden came in front of the motorcycle of the complainant and the P:Ws. According to the complainant the three accused stopped their motorcycles and asked the complainant and the P.Ws. To take out whatever was with them. One of the unknown person forcibly took out Rs,11,000 from the pocket of the complainant.
Resistance was offered upon which the accused tired on the P.Ws. With their carbines and other fire-arms. One shot hit Shakeel Ahmad on his left thigh while one shot hit the complainant on his hip joint towards left side. The complainant in self-defence also fired three shots with his .30 bore pistol out of which two hit the accused and they fell down. In perturbed condition the complainant alongwith Saeed Ahmad took Shakeel injured to the hospital while the 3rd accused took away his two injured companions.
4. Investigation of the case was taken over by Mushtaq Ahmad Bhatti Inspector/S.H.O. P.W.19. He went to hospital, from where he came to know that injured Shakeel has been referred to General Hospital, Lahore. He then proceeded to the spot, inspected the place of occurrence, prepared site plan Exh.P.W. Took into possession blood-stained earth through recovery memo. Exh.P.A., a crime- empty of .30 bore pistol P.1 was secured vide memo. Exh.P.B., one crime-empty P.2 of .12 bore gun was taken into possession vide memo. Exh.P.C., similarly, motorcycle without number P.3 was seized vide memo. Exh.P.D., a .30 bore pistol P.4 was produced by the complainant which was taken into possession vide memo. Exh.P.E. Supplementary statement of the complainant was recorded at the spot in which he nominated three accused, namely, Akhtar, Sharif and Niamat. On the next day, the Investigating Officer came to know that Shakeel Ahmad injured has expired, he reached the house of the deemed, where the dead body was lying after having been brought from the hospital he prepared injury statement and inquest report of the deceased Exh.P.X. And Exh.P.Z. Respectively and on 31-7-1999 arrested Akhtar accused in an injured condition. The Investigating Officer prepared his injury statement Exh.P.P. And from his personal search Rs,1,100 with the denomination of different currency notes were taken into possession vide memo. Exh.P.1. Akhtar accused while in custody got recovered .30 bore pistol which was taken into possession vide memo. Exh.P.M. Sharif accused was arrested on 6-8-1999 alongwith .12 bore gun which was taken into possession vide memo. Exh.P.L.
This accused also got recovered currency notes of different denomination. The 3rd accused namely, Niamat was arrested on 15-11-1999 by Muhammad Afzal S.-I. P.W.15. Thereafter, the investigation was finalized and all the three accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 19 witnesses in all, then the learned P.P. Tendered in evidence report of the Chemical Examiner P.EE. Report of serologist Exh.P.FF. Report of the Forensic Science Laboratory Exh.P.GG. And closed the prosecution case, thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and false implication. However, after completion of the investigation, 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 the appellants were not named in the F.I.R. And have been falsely implicated by the police to show their efficiency. Further submits that the story given in the is not probable and does not appeal to reasons. Adds that recoveries have been planted upon the appellants in order to strengthen the prosecution case. Also adds that the two alleged eye- witnesses have made lot of improvements in this case. Concluding his submission, learned counsel submits that the prosecution has failed to prove its case against the appellants and they are entitled to acquittal.
7. On the other hand, learned Assistant Advocate-General submits that there was no previous background of enmity to falsely implicate the appellants but he is unable to state that why identification parade was not held in this case. He, however, supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record. In the instant case, the occurrence had taken place at 8-30 p.m. While the matter was reported to the police at 10-05 p.m. The same night in front of the hospital though the police station was at a distance of 4 kilometres from the place of occurrence. In the F.I.R. Only three unknown persons were mentioned without any description whatsoever. No identification parade was held. No source of light was mentioned in the F.I.R. Though the occurrence had taken place at 8-30 p.m., so in the absence of any source of light it was not possible for the complainant and the eye-witnesses to have identified the assailants. It was not stated in the F.I.R. As to whose fire hit the deceased because there was only one injury on the person of deceased Shakeel Ahmad. It was also stated by the complainant in the F.I.R. That the complainant in self-defence fired three shots simultaneously and two accused were injured and thereafter the complainant along with Saeed Ahmad took Shakeel to hospital. A perusal of the paper book shows that only Akhtar appellant was found injured having been medically examined by Dr. Abdul Hameed, P.W.9 on 1-8-1999. No other accused was injured. Before the trial Court, the complainant changed his version and stated as under:-- "At that time I also fired with my .30 bore pistol which hit Akhtar accused on his belly. Then I fired on Niamat accused but I cannot say whether he was injured or not then I fired on Sharif accused that I am also not ...Tire whether it hit to the accused or not."
In our considered opinion, the story given by the complainant in the F.I.R. Is not believable. It was incumbent upon the police to have got held the identification parade in the jail as required under the law and rules on the subject. The responsibility of failure of this case lies only and only on the prosecution, specially on the Investigating Officer., As far as recovery from Muhammad Sharif appellant is concerned, he was attributed the fatal injury on the person of the deceased before the trial Court. It may be noted here that the occurrence had taken place on 4-7-1999, the appellant was arrested on 6-8-1991, recovery of gun was effected from him on 6-8-1999, the crime-empty was taken into possession from the spot on 4-7-1999, both the parcels were sent to the office of the Fire-arms Expert after the passage of, two months and 12 days after recovery of the gun and that too together, hence no reliance can be placed on such a recovery. In the case of Muhammad Younas Khan v. The State 1992 SCM R 545 their Lordships of the Honourable Supreme Court ruled as under:-- "So far as the recovery of revolver P.5 is concerned at the instance of the appellant, which matched with the crime-empty P.4 recovered from the spot, both the crime-empty and the revolver were sent after both the recoveries were made to the office of the Forensic Science Laboratory, which destroys its incriminatory value.
' As regards medical examination of Akhtar appellant is concerned, while giving reply to question No,11 in his statement' under section 342, Cr.P.C. He stated as under:-- "It is incorrect. I was not present at the place of occurrence. I received the injury from the licensed pistol by Muhammad Shafique my cousin while cleaning the same."
Akhtar convict while replying question No,13 as to why this case against him submitted as under:-- ' I have been involved in this case falsely. I was not present at the place of occurrence. I was admitted in the Renala Hospital aid the S.H.O. Renala Khurd had investigated the matter and I was released from the hospital. Later on I was arrested by the Police of P.C. City Pattoki from my house situated in Mandi Unmanwala. The police has falsely involved me in this case to show their Karwaz.
After having examined the entire prosecution evidence and the law laid down by the Honourable Supreme Court we are of the considered view that the prosecution has miserably failed to prove its case against the appellants rather the prosecution story is full of doubts and there are many discrepancies on the basis of which conviction against the appellants cannot be maintained.
Resultantly, we accept the appeal filed by appellants and set aside the conviction and sentence recorded against them by the learned trial Court. The death sentence of all the three appellants is Not confirmed. Murder Reference is replied in the negative. The appellants are in jail and they shall be released forthwith, if not required to be detained in any other case.