' This judgment will dispose of Criminal Appeal No,1468 of 2000 directed against the judgment, dated 30-9-2000 passed by the learned Judge, Special Court, Kharian, whereby both the appellants were convicted under section 395, P.P.C. And were sentenced to life imprisonment with fine of Rs,1,00,000 each or in default two years' S.I. Each Benefit of section 382-B, Cr.P.C. Was also granted to them.
2. The facts in brief as narrated by the complainant in the F.I.R. Are that on 17-6-1995 at about 9 p.m.
Four persons in police uniform and three persons in ordinary dresses entered the house of complainant. Muhammad Akram son of Rehmat Khan was with them. He asked the said Muhammad Akram to bring cots who brought a cot. At that time one person in uniform slapped him, abused him and said to him that he was having a kalashnikov. The complainant replied that he was not having a kalashnikov but his son namely Naseer Ahmad was having a licensed 7 mm rifle which could be examined. The said person asked that he would get the said kalashnikov recovered from the complainant. All these persons entering into his house were equipped with fire- arms. The persons in uniform searched all the rooms and .7 mm rifle was taken by them in their possession while the other persons who had muffled their faces kept on standing 'at the doors.
When they could not recover kalashnikov, they locked the complainant and abovesaid Muhammad Akram in a room and beat Mst. Fazal Begum wife of the complainant and Mst. Raftaj Begum daughter-in-law of the complainant. Later on the complainant found one set of golden ring alongwith other precious house-hold articles missing from the house. F.I.R. In this regard was registered.
3. During Investigation Muhammad Walayat, Rukhsar Ahmid alias Shara, Muhammad Malik alias Kalu, Liaqat Ali, Muhammad Siddique, Sajid Hussain and Muhammad Anwar were found guilty. One of the accused namely Liaqat Ali has died. Three accused namely Walayat, Muhammad Malik and Muhammad Siddique were declared P.Os. After separating the case of Rukhsar, Sajid and Anwar challan was prepared against them and the same was submitted for trial.
4. As many as 8 witnesses were produced by the prosecution and except statements under section 342, Cr.P.C. Of the accused no defence witness was produced by them.
5. Learned counsel for the appellants in support of this appeal submits that there were two sets of accused i,e, four persons were in police uniform while three persons were in ordinary dresses and had muffled their faces. He submits that though Sajid and Siddique were identified by the two eye- witnesses namely Ashraf and Muhammad Akram in jail during identification parade conducted by Mr. Kabeer Ahmad Khan, Civil Judge, in jail but both the eye-witnesses did not tell the role of Sajid which he played during the occurrence, even before the trial Court the position was same. The identification parade allegedly took place on 23-10-1996, the occurrence had taken place on. 17-6- 1995 in the midnight and the Sajid appellant was arrested on 10-10-1996, that both the injured ladies were not produced by the prosecution. Adds that objection was raised at the time of identification parade by the accused that they were shown to the witnesses and this fact also gets support from the report of Muhammad Farooq, A.S.-I., P.W.8, who had investigated the matter and arrested the appellants and also got recovered tape-recorder from Sajid appellant when he was posted at C.I.A. Staff, Lalamusa that he did not get any direction or letter from the S.S.P. Gujrat to investigate the matter and he was not appointed as Investigating Officer. Learned counsel submits that C.I.A. Staff was not competent to investigate the matter in this case. Learned counsel submits that the learned trial Court has acquitted the appellants from the charge, under sections 170/171, P.P.C. Adds that as far as Anwar is concerned, neither he was identified by the P.Ws. Nor any identification parade had taken place regarding Muhammad Anwar appellant. Learned counsel for the appellants submits that no recovery of allegedly looted articles was got effected from Muhammad Anwar appellant on his pointation nor any witness in this regard was produced before the trial Court.
6. On the other hand learned counsel for the State submits that as far as Anwar appellant is concerned, the rifle was not recovered from him and neither the said rifle was produced before the Court and even there was no recovery memo. In this regard. As far Sajid appellant is concerned, tape-recorder was got recovered from him. He submits that as far as non-appearance of two injured ladies, is concerned, Mst. Fazal Begum being incapacitated was paralysed and Mst. Raftaj Begum had died before the commencement of trial.
7. I have heard the learned counsel for the parties. As far as Muhammad Anwar appellant ins concerned, there is no evidence to connect him with the commission of offence. No identification parade was held to his extent. Neither 8 mm rifle was got recovered on his pointation nor the same was produced before the trial Court and even there was no recovery memo. On the record. So, no case is made out against him and in this view of the matter, this appeal to his extent is accepted and he is ordeted to be released forthwith if he is not required in any other case.
8. As far as Sajid appellant is concerned, he was duly identified during identification parade in jail by Muhammad Ashraf and Muhammad Akram eye-witnesses. There was no previous background of enmity between the parties and so there was no question of false implication. Two injured ladies could not be produced before the learned trial Court by the prosecution as one of them Mst. Raftaj Begum had died before the commencement of trial while Mst. Fazal Begum was paralysed and she was not in a position to appear before the Court. Recovery of tape-recorder was got effected on the pointation of Sajid appellant. Description of all the accused persons were mentioned in the F.I.R.
No confrontation was got done by the learned defence counsel during cross-examination of these two eye-witnesses. The statements of the present two eye-witnesses cannot be disbelieved without a pinch of salt. As far as Sajid appellant is concerned prosecution has proved its case against him so this appeal to his extent is dismissed.