' Muhammad Iqbal through the present appeal (Criminal Appeal No,26 of 1997) and Muhammad Habib through Criminal Appeal No,27 of 1997 have called in question the judgment, dated 2-12-1997 handed down by Mr. A.G. Tariq Chaudhry, learned Special Judge, Anti-Terrorism Court No Multan, in case F.I.R. No,48 of 1997 registered at Police Station Chak Badi, District Pakpattan, for offences under sections 302/460/395/148/149, P.P.C.
2. The appellants were convicted under section 392, P.P.C. And sentenced to undergo 10 years R.I.
Each, with a fine of Rs,50,000 each, in default whereof the appellants were to suffer further R.I. For two years each. The appellants were also convicted under section 302/34; P.P.C. And were sentenced to life imprisonment each with a fine of Rs,50,000 each, in default thereof the appellants were to further undergo two years' R.I. The amount of fine in case of its recovery was to be delivered to the legal hefts of the deceased. Both the sentences were to run concurrently , and benefit of section 382-B, Cr.P.C. Was extended to the appellants.
3. Both the afore-referred appeals are being disposed of by this single judgment.
4. The case was sent up for trial against nine persons including the present appellants. The learned trial Court acquitted Muhammad Yousaf, Javed Iqbal, Riaz son of Nazar, Riaz son of Hatum, Shaukat Ali and Abdul Ghafoor alias Ghafoori (proclaimed offender), while the appellnats were convicted alongwith Fayyaz Ahmad son of Hatum, who remained a proclaimed offender.
5. Muhammad Akram, S.H.O./P.W.12 recorded the F.I.R. No,48 of 1997, Exh. PH on the statement of Khurshid Ahmad, who reached the Police Station Chak Badi at 7-00 a.m. On 16-2-1997 to report the matter. Initially the F.I.R. Was registered under section 460, P.P.C. ,Subsequently sections 302/395/148/149, P.P.C. Were added. According to F.I.R., the complainant, who was agriculturalist, lived in the adjacent house of his nephew Muhammad Khalis deceased. At about 3-00 a.m. Three unidentified persons scaled over the wastern wall of the house of Muhammad Khalis and went inside the house. Those persons asked Muhammd Khalis to open the door, Muhammad Khalis opened the door of his room. The three unidentified persons, who were armed with fire-arms fired at Muhammad Khalis causing injuries on his index finger including two other fingers and at his hand. One fire hit Muhammad Khalis on his neck, who fell on the ground. Thereafter, all the three accused entered inside the residential room and started search the Trunk and Petti lying inside the room. The accused removed gold ornaments weighing 22 tolas, cash Rs,10,000, one 8. Mm rifle belonging to the deceased and motorcycle registered No,6707-PK of the deceased and left the scene of occurrence. Meanwhile some companions of assailents remained present outside the house and kept on firing. It was further stated in the F.I.R. That the accused left the spot in the darkness of the night. It was added that due to alarm raised by the complainant and the firing Sikandar Shah and Ahmad Hassan P.Ws. Alongwith many others reached the place of occurrence.
According to the complainant he saw the firing of the accused while standing inside the house.
According to him the assailants were of medium hight, wearing Shalwar Qamiz, wheatish colour, smart bodies and aged about 25/30 years. Muhammad Khalis lost his life at the spot. However, the details of the stolen ornaments were not given at the time of registration of the case.
6. Afte the registration of the case P.W.12 Muhammad-e Akram, Inspector/ S.H.O. Reached the place of occurrence and recovery seven empties of 12 bore P-1/1-7 from the compound of the house, which were taken into possession vide memo. Exh. PE, attested by Maqsood and Muhammad lqbal P.W. Four empties of 7.Mm P-2/1-4 were also recovered from the compound of the house and were taken into possession vide memo. Exh.PF. Blood-stained earth was also taken into possession fromteh spot vide memo. Exh.PD. All these memos. Were attested by the aforereferred witnesses.
Out of whom Muhammad Iqbal appeared as P.W.5 and Muhammad Akram appeared as P.W.12.
Maqsood was not produced.
7. Muhammad Iqbal and Muhammad Habib were arrested by P.W.13 Farrukh Nisar Lashari, Inspector, on 19-5-1997. No recovery was effected from Muhammad Iqbal-appellant. However, on 10-6-1997 Muhammad Habib led to the recovery of stolen motorcycle P.5 from him house, which was taken into possession vide memo. Exh. PI. A carbine P-6 was also recovered from a Same Nala at the pointation of Muhammad Habib-appellant on 13-6-1997 and the same was taken into possession vide memo. Exh.PJ P.W-7 Khurshid P.W.9 Ahamd Hassan and P.W.13 Farrukh Nisar Lashari, Inspector, attested the recovery memos.
8. After the arrest of the appellant, test identification parade was held on 27-5-1997 under the supervision of Irshad Hussain Khan, Magistrate P.W.10 at Shaiwal Jail.
9. The appellants alongwith seven others were sent up for trial and since they denied the charge, the trial commenced. During trial, the prosecution produced 13 witnesses in order to prove its case.
Muhammad Khurshid P.W.7 and Ahmad Hassan P.W.9 furnished the ocular as well ak recovery evidence. Irshad Hussain Magistate, appeared P.W.10 and stated about the holding of test identification parade. Muhammad Iqbal-P.W.5 stated about the recoveries from the spot. Dr. Farooq Ahmad P.W.4 furnished the medical evidence, P.W.12 Muhammad Akram, Inspector/ S.H.O.
And P.W.13 Farrukh Nisar Lashari, Inspector/S.H.0 stated about the investigation of the case. Rest of the witnesses 'were formal in nature.
10. After the closure of the prosecution evidence, the statements of the appellants were recorded under section 342, Cr.P.C. Muhammad Habib-appellant denied the charge and stated that he was involved in this case due to election rivalry, as he had supported Hatum father of Riaz co-accused in the District Council Election as against Anwar Shah, father of Liaqat Shah Bodla, D.S.P who. Lost election and therefore, he was involved in this untraced murder. Muhammad Iqbal-appellant denied the charge and stated that he was involved in the case due to party fiction. Both the appellants refused to appear as witness in their own defence as envisaged by section 340(2), Cr.P.C. And did not lead any defence.
11. The learned counsel for the appellants has argued that it was a dark night occurrence and the eye-witnesses were not in a position to identify the accused; that the eye-witnesses had made dishonest improvements during trial; that the identification of the appellants was not possible as the P.Ws. Were known to the appellants; that the recoveries vis-a-vis Muhammad Habib-appellant were also not reliable as no independent witness was associated during the recovery proceedings; that the recovery of carbine is also of no value as the empties were not sent to the Forensic Science Laboratory so did not match with the recovered weapon; and that no recovery was effected from Muhammad Iqb al-appellant.
12. Conversely, the learned counsel appearing on behalf of the complainant has argued that although the eye-witnesses were related to the deceased yet they were from the same vicinity, their presence at the spot was natural and they have given the details during trial as they had identified the appellants during the test identification parade, so it cannot be said that they had made improvements in their statements; that the appellants had made no objection before P.W.10 prior to the identification parade that they were shown to the P.Ws; that there was no reason for the P.Ws. To involve the appellants in this case falsely; and that the recoveries from Muhammad Habib-appellant also provide sufficient corroboration.
13. The learned counsel for the State has followed the line of arguments of the learned counsel for the complainant.
14. I have heard the learned counsel for the parties and gone through the record. Admittedly the occurrence took place at about 3-00 a.m. During night and it is in evidence that it was a dark night.
So, the first question would be that what was the source of light available so as to enable the P.Ws.
To see the occurrence. The F.I.R. Is admittedly silent about the source of light. The eye-witnesses introduced a petrolamp during their evidence but they duly confronted with their previous statements, wherein the petrolamp was not mentioned at all. Farooq Ahmad Bhatti, Darftsman, appeared as P. W.11 and admitted that he did not show any source of light in the site plan Exh.PM.
P.W.12 Muhammad Akram, who initially investigated the case also did not show any source of light in the site plan prepared by him Exh.PN. He also admitted that he had not taken into possession any source of light.
15. The identification parade was not believed by the Hon'ble Supreme Court of Pakistan in the case of The State v. Muhammad Khan 1993 SCM R 2372, as the occurrence had taken place at 2-30 a.m.
In complete darkness. P.W.7 the complainant of the case made dishonest improvements in his statement and as against the F.I.R. He stated that he came out from his house and went to a Chappar near the broken wall and while standing in the Chhaper he saw the occurrence. Whereas in the F.I.R. He had clearly stated that he saw the occurrence while standing inside his house. He had to admit that he and other P.W. Ahmad Hassan did not go inside the house.. Strangely enough this witness has stated that he did not disclose the occurrence to the wife of the deceased who has not been cited as witness. It is impossible that wife of the deceased who lived in the same house would not know about the occurrence. An application was moved by this P.W.7 wherein he had named Ibrar Ahmad and Muhammad Akram as accused. According to P.Ws. 7 and 9 many persons were attracted at the scene of occurrence yet not a single independent person was cited as witness. It is in the evidence that the deceased lived in the house alongwith his wife, two daughters and two sons, and the eldest daughter of the deceased was of 12 years age but as mentioned earlier neither the daughter nor wife of the deceased were cited as witness. These. P.Ws.
Also introduced a story of barking of dogs and were duly confronted with their previous statements wherein the barking of doges were not mentioned. This fact was introduced only to show that these witnesses awoke due to the barking of dogs. P.W.7 was uncle and Humzulf of the deceased while P.W.9 was his cousin, who lived in separate houses. P.W.9 also introduced the story of barking dogs and alos stated that P.W.7 was standing near the Chhapar and made many other improvements and was duly confronted with his earlier statement Exh.DB.
16. P.W.7 had stated in the F.I.R. That - all the accused had almost similar features and were almost of the same ages but during trial he had to admit that the adcused had different discriptions of ages and were not alike. P.W.9 admitted that he had given no features while his statement was recorded by the police and that he did not know the accused prior to the occurrence.
17. Muhammad Akram, Inspector/ S.H.O. P.W.12 who initially investigated the case admitted in his cross-examination that he had called trackers and the trackers traced foot-prints of five persons only. He also admitted that on the second day of occurrence the complainant P.W.7 had disclosed suspicion on three persons including Muhammad Iqbal-appellant, and his parentage and address were also delivered to him by P.W.7, who had been raiding the house of Muhammad Iqbal- appellant. It is also in the evidence that the complainant also showed suspicion against Zafar Iqbal and Yosuf.
18. P.W.13 Farrukh Nisar Lashari, Inspector/S.H.O., who took the charge of the investigation from 5-3- 1997 admitted that on that date the complainant-P.W.7 had shown supicion against Muhammad Iqbal-appellant and Muhammad Habib-appellant. He also admitted that Muhammad Iqbal- appellant was produced before him on 12-3-1997 and he interrogated him. According to him Muhammd Iqbal-appellant again appeared before him on 29-3-1997, who was interrogated but not arrested. The most significant fact brought on the record is that Sikandar, who was rnentioend as P.W. In the F.I.R. And one Mushtaq appeared before this witness on 1-4-1997 who stated that Muhammad Habib appellant alongwith Fayyaz accused had made extra-judicial confession before them. This P.W. Had to admit that after this discovery he arrested Muhammad Iqbal and Muhammad Habib appellants. This fact clearly denotes that both the appellants were known to P.Ws. Prior to their arrest i,e, on 19-5-1997 and identification parade held on 27-5-1997. It cannot be believed that while the appellants were being interrogated and suspicion was shown against them, they were not shown to the P.Ws. Especially when Sikandar one of the P.Ws. Appeared before P.W.13 on 1-4-1997 and stated about Muhammad Habib- appellant. According to eye-witnesses the occurrence took place in the compound of the deceased but P.W.13 admitted that he hat' seen the bullets marks on the Trunk and Petti lying inside the room of Muhammad Khalis deceased. He also admitted that the occurrence took place during the dark night and he did not inquire about the source of light from the witnesses. P.W.10 who conducted the investigation had admitted that he had not noted any particular feature of the accused persons such as beard, moustches, cut mark and moles etc. Prior to the identification parade. He.Also admitted that he had not noticed and recorded the aforereferred features about the dummy as well. This witness also did not record any statement of the appellants.
19. According to Doctor P.W.4 the deceased` received three injuries. None of the injuries caused blackening or tattooing, meaning thereby that all the three injuries were caused faile a distance of more than 10 feet, while the P. Ws. Gave an impression that Muhammad Khalis deceased was done to death from a close range. Surprisingly the place where the accused were standing while firing at the deceased has not been shown in both the site plans i,e, Exh.PM and Exh.PN.
20. No recovery was effected from Muhammad Iqbal-appellant. The recoveries of .12 bore pistol and stolen motorcycle have been shown to have been effected from the appellant Muhammad Habib. But these recoveries cannot be relied upon for various reasons. Firstly and fore mostly that none from the locality was associated with the recovery proceedings in utter violation of section 103, Cr.P.C. Both the appellants were in police custody and there was no likelihood that they would escape or the articles to be recovered would vanish yet no independent witness was associated during the recovery proceedings. In such situation no reliance can be placed upon the recoveries coupled with the fact that P.W.7 and P.W.9, who are eyewitnesses and close relatives of the deceased and residents of about 14/15 miles away from the place of occurrence have also been made recovery witnesses. It has been held many a time by the Hon'ble Supreme Court of Pakistan that independent witnesses should be associated with the recovery proceedings to corroborate other incriminating evidence. I am further fortified in my view by placing reliance upon the dictum laid down in the cases of State through Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408) and Tayyab Hussain Shah v. The State (2000 SCM R 683).
21. The upshot of the above discussion is that the prosecution evidence is replete with doubts. In these circumstances, as discussed in detail the identification of the assailants was not possible, therefore, I extending the benefit of doubt to the appellants allow these appeals, set aside the judgment, dated 2-12-1997 and acquire the appellants of all the charges. They would be released from Jail forthwith if not required in any other case.