' This judgment will dispose of Criminal Appeal No,261-J of 2001 directed against the judgment dated 14-3-2000 passed by the learned Additional Sessions Judge, Kamalia, whereby he convicted the appellant under section 458, P.P.C. And sentenced him to undergo 7 years' R.I. With fine of Rs,10,000 or in default six months S.I. He was also convicted under section 302-(b), P.P.C. And was sentenced to undergo life imprisonment with further direction to pay Rs,50,000 (Rupees fifty thousand) as compensation payable to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default six months' S..I. Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. The story, in brief, of this case as narrated by the complainant, father of the deceased who had come to see her daughter Mst. Shahnaz deceased, are that on the fateful night i,e, 23/24-9-1996 It about 13-30 a.m he and his son Muhammad Rafique attracted by the shrieks of Mst. Shahnaz and they rushed inside where in the light of electric bulb they found a person clad in black clothes inflicting injuries with Danda to Mst. Shahnaz. They could not identify the accused. Mst. Shahnaz was removed to the Hospital in an injured condition where she after preparation of MLR, died. Case in this regard was registered on 24-9-1996 and during investigation on the statement of Haq Nawaz about the involvement of the accused and also in view of the confessional statement of Muhammad Siddique and Allah Ditta, the appellant Nisar Ahmad was arrested in this case. His identification parade. Was held and then he was challaned in this case.
3. After completing all the necessary formalities Munir Ahmad Inspector Range Crime, P.W.15 who was posted at that time as S.H.O., in Police Station Pir Mahal, initially conducted the investigation of this case. He visited the spot. He secured bloodstained earth from the spot vide memo. Exh.P.G.
Thereafter, he visited Hospital where he prepared injury statement Exh.P.D and inquest report Exh.P.E. He also took into possession last worn clothes of Ma. Shahnaz Bibi deceased i,e, shirt P.1, Shalwar P.2 and Dopatta P.3 all stained with blood vide memo. Exh.P.A. Thereafter, investigation of this case was transferred to Tallat Mahmood S.I/S.H.O, who on 14-5-1999 arrested Nisar Ahmad appellant and he was identified by the eyewitnesses in the identification parade. He was sent to the judicial lock-up and on 17-5-1999 his identification parade was held under the supervision of Mr. Aslam Hayat Sial M.I.C, Pir Mahal. While in police custody he got recovered Ghotna (Danda) P.4 on 21-5-1999 vide memo. Exh.P.F. Challan was completed and the same was submitted for trial.
4. Prosecution in order to prove its case has produced as many as 19 witnesses including Doctor, Investigating Officers, eye-witnesses and other relevant persons. After tendering in evidence report of Chemical Examiner Exh.P.P, report of Serologist Exh.P.P/1, report of Chemical Examiner regarding Sota Exh.P.G and that of Serologist Exh.P.Q/1 learned D.D.A. Closed the prosecution evidence.
Thereafter, statement of the accused/appellant was recorded under section 342 Cr.P.C. In which he pleaded not guilty and claimed to be tried.
5. Learned counsel for the appellant in support of this appeal submits that appellant was not named in the F.I.R., that even the features of the appellant was not mentioned in the F.I.R., that Muhammad Yaseen complainant father of Mst. Shahnaz Bibi deceased and Muhammad Rafique the son of the complainant were not the residents of the place of occurrence, that it has also not been brought on the record that Muhammad Iqbal recovery witness was present at the spot. The occurrence had taken place at 3-30 a.m. (dark hours of night) and it was an unwtinessed occurrence, that occurrence had taken place on 24-9-1996 while the appellant was arrested three years after the occurrence i,e, on 14-5-1999, that identification parade was held on 16-3-1999 after three years and it was impossible for the witnesses to identify the appellant after above said long gap, that motive is also not proved by the prosecution. Learned counsel for the appellant further submits that if there were eye-witnesses then there was no need to bring on record the extra- judicial confession, that there was no motive on the part of the appellant to commit the murder of the deceased, that after three years Danda has been planted on the appellant, that identification parade has no value because according to the learned counsel appellant was shown to the eye- witnesses before holding the said identification parade and that no case is made out against the appellant.
6. Learned counsel for the State on the other hand submits that appellant is the only accused in this case. He committed the murder of the deceased while criminally trespassing, the house of the deceased. He submits that although Muhammad Yaseen and Muhammad Rafique are closely related to the deceased but they have no enmity whatsoever against the appellant. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. In the instant case occurrence had taken place on 24-9-1996 at 3-30 a.m (mid-night). Muhammad Yaseen complainant is father of the deceased.
Three eye-witnesses produced by the prosecution are Muhammad Yaseen P.W.11, Muhammad Rafique P.W.12, father and brother of the deceased respectively and Muhammad Iqbal P.W.10, though not related to the deceased but is not resident of the house of the deceased. Muhammad Yaseen and Muhammad Rafique are not residents of the house of the deceased but they had pretended that they had come to see Mst. Shanaz Bibi a day before the occurrence because husband of Mst. Shahnaz Bibi was in Saudi Arabia in order to earn his livelihood. No features or descriptions of the accused were given in the F.I.R. Occurrence had taken place on 24-9-1996 while the appellant was arrested on 14-5-1999 about 2 years and 8 months after the occurrence. It is not possible that some persons would identify an accused person who had some glops of an accused person for some minutes. Even the conduct of the P.Ws. Was most unnatural. Appellant was only armed with Danda at the time of occurrence and three young male persons were present there.
Nobody tried to apprehend the accused or even tried to follow him to arrest him. If the prosecution had the eye-witness account then why it had introduced the witnesses of extra-judicial confession i.e, Allah Ditta and Muhammad Siddique. This in fact shows the anxiety on the part of the complainant party to bring on record as much evidence as they can against the appellant to get him punished, the presence of the eye-witnesses at the spot is doubtful. Even Muhammad Iqbal eyewitness had nothing to do in the house of the deceased at 3-30 a.m. (mid-night). No reason about the presence of Muhammad Iqbal P.W. At the spot has been mentioned before the trial Court. Though prosecution has also introduced statement of Haq Nawaz who had seen the appellant while washing blood-stained clothes on 24-9-1996 but he made statement before the police two years after the occurrence. It is also not believable that on 21-5-1999, on the pointation of appellant ' Danda was recovered. The witness to that recovery was Muhammad Amin, the real brother of the complainant. This is also not believable. As far as identification parade is concerned that had taken place 2 years and 8/9 months after the occurrence. It was not possible to identify the appellant by the witnesses after such a long period. The suggestion of the defence counsel that the appellant was shown to the witnesses before the identification parade seems to be more plausible and convincing one and no question has come on record even from the side of the prosecution that why the appellant had committed the murder of the deceased.
8. After having, gone through the evidence recorded by the learned trial Court and also hearing the submissions made by the learned counsel for the parties, this Court is not convinced with the prosecution version. As the prosecution has miserably failed to prove its case, I, accept this appeal and set aside the conviction and sentence awarded to, the appellant by the learned trial Court. He shall be released forthwith, if he is not required in any other case.