KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 1080 of 1999 filed by Saif Ullah and Muhammad Javaid, appellants who were convicted and sentenced by learned Special Judge, Anti-Terrosim Court No, III, Lahore vide judgment, dated 7-10-1999 as under: -- Death under section 302(b)/34, P.P.C. and to pay Rs, one lac as compensation and in default six months, S.I. each.
10 years' R.I. and to pay a fine of Rs,50,000 in default three months, S.I. each under section 392/34, P.P.C. and 10 years' R.I. and a fine of Rs,50,000 in default three months' S.I. each under sections 324/34, P. P.0 .
Murder Reference No, 359/T of 1999 for confirmation of death sentence or otherwise shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at about 10-30 a.m. on 5-3-1992 at a distance of 3 kilometers from Police Station, Railway Police, Lahore while the matter was reported by Jaffar Hussain through complaint Exh.P.A. and the formal F.I.R. Exh. P.A./1 was recorded by Muhammad Ashiq, S.I. at 11-40 a.m. the same day."
3. Briefly stated the facts of the case are that Jaffar Hussain, complainant was posted as a Cashier, Railway Carriage Office, Lahore. On 5-3-1992 he alongwith Taj Din, Shabbir Ahmad, Bashir Ahmad and Muhammad Arif, all Police Constables armed with their official weapons reached Railway Station Badami Bagh, Lahore alongwith cash-box at about 10-15 a.m. in order to make payment of the salaries of the Railway staff. The complainant sat in the office of Station Master, Railway Station Badami Bagh, Lahore where two Naib Qasids, namely, Tarif and Waris were also present. It was alleged that he had made payments of Rs,8,105 only to the staff when all of a sudden, one person of average built, tall height wearing Shalwar Kameez armed with Kalashinkov entered in the office and he was speaking in Punjabi. He threatened that no one should move from his place when in the meanwhile his two other companions, one of whom was a smart built, with wheatish colour young age and medium height wearing shalwar kameez armed with a pistol and the other of a smart body of short structure and also of wheatish colour of young age, empty-handed entered in the office of Station Master. All these persons could be identified by the complainant if they were produced before him. It was stated in the F.I.R. that at that time Bashir Ahmad F.C. tried to fire on them but the person who was armed with Klashinkov fired on him which hit on his left shoulder due to which Bashir, Constable fell down on the ground and later on died. Complainant further stated that the other two persons snatched forcibly the official rifles from Shabbir and Arif, Constables. He has also stated that the accused also snatched the cash box containing Rs,2,96,872 in it from them.
He further stated that the accused had threatened that if anybody came forward he would be murdered. In this way, the accused took away the rifles and cash box with cash out of the said office. The accused who was armed with Kalashnikov, he continued firing. The police officials Taj Din, Shabbir and Arif, Constables chased the accused. During the chase of the accused Taj Din also fired at the accused and due to the firing of the accused Shabir Ahmad, F.C. No, 768 also received fire-arm injuries. The accused after crossing the railway line, placed cash box in a taxi being Registration No, 3397-LHP, but due to the firing of the police, the accused got out of the taxi and fled away in nearby street alongwith cash box. The P.W. made his complaint Exh. P.A. before Hassan Mukhtar A.S.I., who reduced the same into writing.
4. After registration of the formal F.I.R. Ghulam Shabbir, S.I. P.W.15 proceeded to the spot, before his arrival at the place of occurrence, Hassan Mukhtar, A.S.I. was conducting the investigation, Ghulam Shabbir, S.I. took over the investigation, prepared site plan Exh. P.J. took into possession bullet led P.1 vide memo. Exh. P.K. six empty cartridges P.2/1-6 and seven other empty cartridges P.3/1-7 was taken into possession vide memo. Exh . P. M . automatic rifle P.4 of Bashir Ahmad deceased, Constable alongwith three live cartridges P.511-3 were taken into possession vide memo.Exh. P.N. similarly, iron box containing amount of Rs,2,96,872 was taken-into possession vide memo. Exh. PQ., taxi car which was used by the accused was recovered through memo. Exh. P.R., motorcycle No, 6870/FDC was taken into possession vide memo. Exh. P.S., thereafter injured Bashir Ahmad, Constable expired in the Hospital, where Ghulam Shabbir prepared inquest report Exh. P.D. and took into possession last-worn clothes of the deceased vide memo. Exh. P.U. blood-stained clothes of injured Sharif- Hussain, Constable were secured vide memo. Exh. P.V., official rifle P.14 of Shabbir Hussain was secured vide memo. Exh. P.W., then the investigation was taken over by Muhammad Rafique, S.I. P.W.11, who on 7-5-1995 arrested the four accused namely, Saif Ullah, Javed alias Jadi, Muhammad Ilyas and Javed Iqbal, semi-automatic rifle P.1 Was got recovered by Saif Ullah which was secured vide memo. Exh. P.E semi-automatic rifle P.3 recovered at instance of Javed alias Jadi which was taken into possession vide memo. Exh. P.F. and the identification parade of the accused was held in Jail on 25-5-1995. After completion of the investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 20 witnesses in all, then the learned P.P. tendered in evidence report of the Chemical Examiner Exh. P.A.A. report of the Serologist Exh. PBB and closed the prosecution case, thereafter, the statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial the appellants were convicted and sentenced as stated above.
6. In support of this appeal, learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that nobody was named in the F.I.R. the identification parade was not held in accordance with the rules framed by the High Court; the identification parade having been held after three years, it was not possible for the witnesses to have identified the accused; the accused were shown to the witness before the identification parade; the objection raised by one of the accused duringthe identification parade was not decided by the learned Magistrate; the roles played by the accused were not mentioned by the eyewitnesses either before the learned Magistrate or before the learned Trial Court; the learned Magistrate admitted in his cross-examination that it was his first identification parade; the application which was marked by the A.C. to Dr. Shoaib, Magistrate 1st Class to hold the identification parade was not available on the file and in this respect the learned P.P. has made a statement before the learned Trial Court. Learned counsel further submits. that no cash amount was recovered from the appellants; all the eye-witnesses including Shabbir Hussain, the injured P.W. did not support the prosecution case before the learned trial Court. Adds that Abdul Ghafoor.
Head Constable was later on introduced by the prosecution to fill up the lacunas in the prosecution case, this witness was not the witness of the occurrence which took place in the room of Station Master and that 'his evidence is only to the effect that he had seen three accused having a cash box in their hands which they have snatched. Learned counsel submits that Abdul Ghafoor P.W. was neither mentioned in the F.I.R. nor was mentioned in the site plan Exh. P.J. Concluding his submissions, learned counsel for the appellants submits that the prosecution has miserably failed to prove its case against the appellants so the appellants are entitled to acquittal.
7. On the other hand, learned counsel for the State supports the judgment of the learned trial Court by submitting that Abdul Ghafoor P.W. had identified the accused before the learned Magistrate who held the identification parade and also before the learned trial Court. He further submits that though the eye-witnesses have not supported the prosecution case but some of them had identified the appellants in jail to be accused persons.
8. We have heard learned counsel for the parties and have gone through the record. In the instant case, occurrence had taken place at 10-30 a.m. on 5-3-1992 and the matter was reported to the Police by Jaffar Hussain, complainant on the same day at 11.40 a.m. The description of the accused persons was given in the F.I.R. Unfortunately. Aulad-eMujtaba son of Sharif (now dead) was arrested on 19-10-1984 while Saifullah and Javed were arrested on 28-5-1995. The identification parade of Saifullah and Javed was held by Dr. Shoaib Anwer, P.W.13 on 25-5-1995. During the identification parade, Jaffar Hussain complainant (P.W.1) identified only Aulad-e-Mujtaba (now dead). Taj Din (P.W.4) identified all the accused Muhammad Taharaff (Tariq as mentioned in the F.I.R.) and Warts did not identity any of the accused. As far as Shabbir Hussain (P.W.19) is concerned, he did not participate in the identification parade. All the witnesses mentioned above had appeared before the learned trial Court. Except Abdul Ghafoor, H.C. none of the said eye- witnesses identified the appellants. We are sorry to note that P.Ps who conducted this case on behalf of the State did not try to make a request to the learned trial Court to declare the witnesses hostile. This shows their negligence or they were conniving with the appellants. Only Abdul Ghafoor, H.C. (P.W.3) had identified the appellants in Court but his evidence is of no avail to the prosecution because this witness was neither named in the F.I.R. nor he was shown as an eye-witness in Exh.
P.C. the site plan. He was introduced later on. Moreover he is not a witness of the occurrence. His evidence was only to the effect that he saw three dacoits carrying cash box and official fire-arms and they went away within his sight. He in cross- examination stated that at the time of ocCurrence, he was coming from his house situate near Railway Station Badami Bagh, Lahore. He even did not know as to who was present at the time of occurrence. No cash amount was recovered from the appellants which was taken into possession by the Police after the occurrence in front of the shop of one Nadeem which was left by the accused persons. The only statement of Abdul Ghafoor (P.W.3) is not corroborated by any other Independent source. In fact the person who had actually witnessed the occurrence have not supported the prosecution case. It seems that as the accused were arrested after 3 years, the trial was held in the year 1999, they won over the witnesses.
9. The other important witness namely Arif Husain Shah (P.W.12) whose Suzuki was snatched by the accused persons did not support the story of the prosecution. Similalry, Umer Zaman (P.W.20) the taxi driver in whose taxi the accused persons came did not support the prosecution case.
10. It is a case in which the punishment provided is death. It is by now well-settled that in a case of capital punishment, the evidence must have come from an unimpeachable source. Reliance can be placed on 1999 SCM R 1030. In the instant case, there is no other evidence to connect the appellants with the commission of offence except the statement of Abdul Ghafoor, H.C. who was neither named in the F.I.R. nor was mentioned in the site plan apart from the fact that his statement was not corroborated by any other independent evidence. In our view, the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt rather it is a case which is full of doubts. So while extending the benefit of doubt, we accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court and acquit them of the charge. They shall be released forthwith, if not required to be detained in an other case. Death sentence is Not confirmed. Murder Reference is replied in the negative.