' TANVIR BASHIR ANSARI, J.--- Accused Jalal Ahmad, Khalil Ahmad, Abdul Malik, Abdul Khaliq, Shabbir Ahmad and Muhammad Yasin were tried under sections 148/149/449/396/302/412, P.P.C.
For the murder of Shah Muhammad by the Judge, Special Court, Anti-Terrorism, Bahawalpur Division, Bahawalpur. The learned trial Judge vide his judgment, dated 13-2-2001 acquitted Jalal Ahmad, Muhammad Yasin and Khalil Ahmad of the charge but convicted Abdul Malik, Abdul Khaliq and Shabbir Ahmad and sentenced them as under:---
(i) Under sections 396/149 P.P.r.
' Abdul Malik, Abdul Khaliq and Shabbir Ahmad were each convicted and sentenced to death. A fine of Rs,50,000 was also awarded to them or indefault thereof to undergo 5 years S.I. Each.
(ii) Under sections 302/149, P.P.C.
' They were convicted and sentenced to imprisonment for life each and a sum of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default thereof to undergo 6 months S.I. Each.
(iii) Under sections 449/149, P.P.C.
' They were convicted and sentenced to 10 years R.I. And a fine of Rs,20,000 each or in default thereof to further undergo 2-1/2 years S.I. Each.
(iv) Under sections 148/149, P.P.C.
' They were convicted and .Sentenced to three years R.I. And a fine of Rs,5,000 each or in default thereof to further undergo 6 months S.I. Each.
' As far as charge under section 412, P.P.C. Is concerned they were acquitted of this charge. The benefit of section -3V-B, Cr.P.C. Was also extended to them. The convicts have appealed against their conviction and sentence whereas the learned trial Judge has referred the case to this Court under section 374, Cr.P.C. For confirmation of death sentence. We propose to dispose of both these matters by this judgment.
' As far as Bau alias Bahu accused is concerned, he is P.O. And he will be dealt v, ith according to law when he surrenders or is arrested.
2. F.I.R, No, 76 of 1999, "dated 10-3-1999 was registered under sections 396/460/324/34/302, P.P.C. At Police Station Musafir Khana upon the complaint of Abdul. Rasheed son of Shah Muhammad.
According to the case of the prosecution, the complainant was married with one Mst. Meedo daughter of Illahi Bux while the sister of the complainant was married to Rasheed Ahmed son of Illahi Bux. As Mst. Meedo was not residing with the complainant on account of strained relations, he had visited the house of Ilahi Bux 5/6 months prior to the date of occurrence to bring "back his wife.
Illahi Bux and his sons namely Muhammad Hanif and Rasheed demanded that the complainant should divorce his wife and also return gold ornaments otherwise he (complainant) would be done to death. It was alleged that on 10-3-1999 at about 10-00/ 11-00 p.m. When the complainant and his brother Abdul , Hamid were -asleep, Muhammad Hanif, Muhammad Siddique, Rasheed Ahmad son of Illahi Bux armed with pistol and Wazir Ahmed armed with pistol entered the house of the complainant. They had caught hold of Shah Muhammad, father of the complainant who was sleeping in the courtyard and brought him to the room where the complainant and his brother were sleeping. All the four accused made ,the demand of divorce and upon refusal by the complainant and his father, Muhammad Siddique exhorted the other co-accused' to murder them.
Upon this Rasheed Ahmed and Ahmed caused fire-arm shots at Shah Muhammad which hit him" in the abdomen. Their alarm attracted Muhammad Shafi (P.W.13) and Allah Wasaya (given up P.
W.). The accused then decamped with the jewellery. Shah Muhammad was taken to the Hospital where he succumbed to the injuries.
3. The F.I.R. Was registered by Muhammad Aslam, A.S.I., Police Station Musafir Khana (P.W.l). Abdul Majeed, A.S.I. Was deputed to conduct the investigation.
4. To prove its case, the prosecution examined P.W.1 Muhammad Aslam who registered the F.I.R. 76 of 1999, P.W.2 Nazir Ali/C who delivered the parcel containing .12 bore pistol to F.S.L. P.W.3 Bashir Ahmed Bhatti, Patwari who prepared site plan Exh.P.B. And Exh.P.B./1, P.W.4 Shahid Majeed E.A.C./Magistrate who deposed about the identification parade of the appellants, P.W.5 Muhammad Ayub/C who produced last worn-clothes of the deceased after post-mortem, P.W.6 Muhammad Afzal, A.S.I. Who stated that weapon of offence in F.I.R. 462 of 1999 was a Carbine which was sealed and received vide Exh. P.F., P.W.7 Muhammad Yasin who took parcel of blood-stained earth and crime empties to the Chemical Examiner and F.S.L., P.W.8 Abdul Hameed, E.A.C.
Conducted identification parade of Khalil Ahmed, P.W.9 Ali Akbar, A.S.I. Who deposed about the recovery of pistol from appellant No,3, P.W.10 Muhammad Iqbal recognized the dead body of Shah Muhammad before postmortem, P.W.11 Abdul Majeed who deposed about the recovery of jewellery, P.W.12 Abdul ' Rasheed complainant, P.W.13 Muhammad Shafi who was cited as witness in the FIR., P.W.14 Mst. Kaman Mai widow of Shah Muhammad, P.W.15 Mst. Zahoor Mai, P.W.16 Atta Muhammad, P.W.17, Muhammad Ashraf, (Retd.) Inspector, P.W.18 Abdul Majeed A.S.I., P.W.19 Dr. Muhammad Farhat Abbas and P.W.20 Muhammad Afzaal, S.I.
5. The appellant in their statements recorded under section 342, Cr.P.C. Denied all the allegations and evidence produced by the prosecution. They completely denied the occurrence and stated that the complainant party has involved them in this case after effecting compromise with the actual accused of this case i,e, Rasheed, Siddique and Hanif etc. All the appellants pleaded to be innocent.
6. The learned trial Judge after going through the said evidence convicted the appellants as indicated hereinbefore. Jalal Ahmad, Yasin and Khalil accused were given the benefit of doubt and were acquitted.
7. We have heard the arguments addressed by the learned counsel for the parties and have perused the entire evidence on the record with their assistance.
8. F.I.R. Exh. P.A. Was lodged upon the complaint of Abdul Rasheed son of Shah Muhammad which was made soon after the occurrence. The contents of the First Information Report was duly thumb- marked by the said complainant. He had clearly mentioned the motive of the occurrence and specifically nominated four accused namely Muhammad Hanif, Muhammad Siddique Rasheed Ahmed all sons of Illahi Bux and Wazir Ahmed Pauli of Mouza Ghulamoon. Specific and definite .Role was also attributed to each accused. It may also be mentioned that at least Muhammad Hanif, Muhammad Siddique and Rasheed Ahmed were no strangers to the complainant as all the three were his brothers-in-law. Rasheed Ahmed accused in the F.I.R. Was even married to Mst. Zahoor Mai a sister of the complainant. The initial investigation of the case was assigned to Abdul Majeed, A.S.I. P.W.18. According to his statement, he proceeded to the place of occurrence on 10-3-1999 alongwith Ghulam Jaffar and Amjad Ali/C. He recorded the statements of Allah Wasaya and Muhammad Shafi P.Ws., under section 161, Cr.P.C. He also took into possession three crime empties of .30 bore pistol and one cartridge of .12 bore and one live cartridges of .12 bore and made two sealed parcels vide recovery memo. Exh.P.U. He also secured blood-stained earth from the place of occurrence vide recovery memo. Exh. P.V. He prepared site plan without scale Exh. P.W. While appearing as P.W.18 he frankly conceded that "it is correct that complainant party was of the view that this occurrence was committed by Rasheed, Wazir, Siddiq and Hanif when I visited the place of occurrence. It is correct that on 11-3-1999 Abdul Majeed and Kaman Mai P.Ws had mentioned the names of the abovesaid accused persons in their statements under section 161, Cr.P.C. It is correct that Mst. Kaman Mai P.W. Had mentioned in her statement that she alongwith her son and daughter had identified the accused namely Abdul Rasheed and Wazeer Ahmed. It is correct that Mst. Kaman Mai got recorded in her statement that Abdul Rasheed and Wazir accused had fired at her husband within their view. As far as the investigation of this case remained with me, the complainant party was of the view that the accused mentioned in the F.I.R. Were the real culprits of the occurrence".
9. The ocular account of the occurrence has been rendered by P.W.12 Abdul Rasheed '
(complainant) P. W.13 Muhammad Shafi, P.W.14 Mst. Kaman Mai widow of Shah Muhammad deceased and P.W.15 Mst. Zahoor Mai wife of Rasheed Ahmed.
' The statements of these witnesses were recorded on 31-1-2001.
10. A perusal of the statement of Abdul Rasheed complainant who appeared as P.W.12 would show that he made an entire volte-face and introduced a totally different story from one which he had so specifically made in the F.I.R. According to his statement, 6/7 persons entered into the house on the fateful day and tied his father (Shah Muhammad deceased) alongwith his brother Muhammad Siddique. The assailants also tied this P.W. Then the assailants broke the box from which an Attache-case and a Brief-case were removed, and took out all the ornaments. The assailants while going back fired at Shah Muhammad in the abdomen who later succumbed to the injuries. This P.W.12 stated "I could not identify the assailants". However, he admitted as correct the application Exh. P.A.1 which he had submitted to the police on 10-3-1999 and admitted his thumb-impression thereupon. He attempted to reconcile his statement with the contents of Exh. P.A. By stating that he had mentioned the 'names of Rasheed, Hanif and Wazir in the F.I.R. On the basis of suspicion as he had dispute with his father-in-law.
11. At a later stage, during the course of his statement, he said "nothing else was pointed out by any of the accused persons in my presence regarding place of occurrence".
' This statement led -the prosecution to claim that the complainant had become hostile. This request was granted by the learned trial Court and the complainant was then cross-examined by the prosecution itself. He completely denied the suggestions put to him by the prosecution that it were Syed Qayyum Shah (given up P.W.) and Malik Atta Muhammad (P.W.16) who informed him that the real culprits were Abdul Malik, Abdul Khaliq. .Ghulam Shabbir, appellants and Khalil Ahmed, Ghulam Yasin and Jalal Ahmed or that these persons had confessed their guilt before Qayyum Shah or Atta Muhammad. He also denied that the appellants ever made any confession during the investigation. This witness even admits to have made an application to the S.S.P., Bahawalpur three months after the alleged occurrence wherein, he had mentioned the names of Rasheed, Hanif, Wazir as the accused. He also admitted the filing of a W.P.. 'wherein, names of the aforementioned accused were mentioned.
12. The next . Eye-witness is P.W.13 Muhammad Shall. At the very outset, he stated that he did not identify any of the accused persons at the time of the occurrence. This is a witness who has been cited even in the F.I.R. Ironically, even this witness was claimed by the prosecution to have become hostile which request was allowed by the trial Court and even this witness was cross-examined by the prosecution itself. In his cross-examination, he denied all the suggestions made to him by the prosecution which had the effect of incriminating the appellants.
13. The third eye-witness is Mst. Kaman Mai widow of Shah Muhammad who adopted the revised version as made by P.W.12 that 6/7 persons entered the house, broke the box and forcibly removed the ornaments and that when they raised alarm the assailants caused fire-arm shots which hit Shah Muhammad deceased in his abdomen. She states to have identified the appellants at the time of occurrence and also during the identification parade. In cross-examination, however, she narrated the background of the strained relations of Abdul Rasheed complainant with Mst. Medoo Mai daughter of Illahi Bux. Similar statement was made by Mst. Zahoor Mai P.W.15 who stated to have identified the appellants at the time of occurrence. She also identified the appellants in identification parade.- However, in her cross-examination she stated that "prior to the identification parade police informed us about the arrest of the accused persons and to see them".
' This witness is the wife of Rasheed Ahmed son of Illahi Bux who is the principle accused in the F.I.R.
In view of the contention of the appellants made under section 342, Cr.P.C. a compromise had been - reached between- the complainant party and the original accused of F.I.R. No,76 of 1999 and that the appellants were being made the scapegoat. It is indeed travesty of justice to place any reliance upon this so-called eyewitness account. As observed hereinbefore the two most important eye-witnesses viz, the complainant and Muhammad Shall P.W.13 who was named as witness in the F.I.R. Were declared hostile and prosecution attempted to establish its case through suggestions put to them in cross-examination. The statement of P.W.14 Mst. Kaman Mai is also not confidence-inspiring. Firstly, soon after the occurrence, her statement was recorded by Investigating Officer P.W. 18 under section 161, Cr.P.C. Wherein, Mst. Kaman Mai had stated to have identified the accused namely ' Abdul Rasheed and Wazir Ahmed. She also re-affirmed the background of the occurrence as contained in the F.I.R. The statement of P.W.15 Mst. Zahoor Mai is to be approached with great caution. She is the wife of Rasheed Ahmad the accused mentioned in the F.I.R. She is clearly an interested witness who wanted to, save the skin of her husband and place the onus of crime elsewhere. Her statement that prior to the identification parade the police "informed us about the arrest of the accused persons and to see them" also denudes the identification made by her of any value.
14. A ' perusal of the entire ocular evidence as referred to above, viewed in the context of the contents of the F.I.R. Admittedly lodged by P.W.12 and also appreciated in conjunction with the statement of Investigating Officer Abdul Majeed, A.S.I. P.W.18, shows that this kind of evidence is totally insufficient to bring home guilt to the appellants:
15. As noticed earlier the initial investigation was conducted by Abdul Majeed, A.S.I. P.W.18. He conducted the investigation till 18-3-1999 whereafter the case file was handed over to Muhammad Afzaal, S. I. /S.H.O. For further proceedings. According to the statement of Muhammad Afzaal, S. I.
(P.W.20) he took up the investigation from P.W.18 on 19-3-1999. It was on 20-3-1999 that he proceeded to the place of occurrence where he took into possession box P.8, Brief-case P.9, three empty boxes meant, for ornaments P.10 and Make-up box P.11 vide recovery memo. CExh.P.L. He also recorded the supplementary statement of Abdul Rasheed complainant. Thereafter, Muhammad Ashraf Inspector/ S.H.O. P.W.17 took up the case file from P.W.20 and started further investigation.
' According to the statement of P.W.17, he interrogated the four accused persons mentioned in the F.I.R. And declared them innocent. It is not understandable how the accused persons could be declared innocent by merely interrogating them'. On the other hand, as stated by this P.W., Abdul Rasheed complainant, Syed Abdul Qayyum and Malik Atta 'Muhammad appeared before him at Police Station on their own and got their statements recorded to the effect that appellants and the three acquitted accused who where under custody of the police in different other cases had confessed their guilt in respect of the present occurrence. According to P.W.17, it was upon such statement of Abdul Qayyum, Atta Muhammad and Abdul Rasheed complainant that the proceedings to conduct identification parade of the appellants was made. According to him, all the three appellants were duly identified during the identification parade and that they had also led to the recovery of ornaments. He also stated that the appellants made disclosure about the place of occurrence.
16. The very basis of exculpating the accused originally named in the F.I.R. And inculpating of the appellants is knocked out by the statements of the complainant P.W.12, the statement of Muhammad Shafi P.W.13 and more importantly the statement of Atta Muhammad P.W.16.
'According to P.W.12, he came to know"that the real culprits of this occurrence were Abdul Malik.
Abdul Khaliq and Shabbir. Inspector of Police Station Musafar Khana informed me about this fact as he received the information from S.H.O., Police Station Noshera Jadeed. I did not identify the accused persons".
17. Atta Muhammad and Qayyum Shah are the persons who had allegedly reported to Muhammad Ashraf, Inspector about the confessional statements made by the appellants before them. While appearing as P.W.16 Atta Muhammad completely denied that the appellants were ever called at the Dera of Qayvum Shah or that they confessed their guilt in their presence. It is also noticed that Qayyum Shah was given up by the prosecution. The prosecution has failed to prove any specific recovery from the appellants.
18. The appreciation of evidence as conducted above leads to an irresistible conclusion that the prosecution has miserably failed to prove the charges against the appellants on the basis of such evidence and investigative process. The manner in which the identification parade was conducted is also not in accordance with law. The identification parade in respect of the appellants was conducted by Mr. Shahid Majeed, E.A.C./Magistrate P .W .4 . According to his statement it was conducted on the basis of an application Exh. P.C. Which was made by Muhammad Ashraf, Inspector before A.C. Bahawalpur for conducting the identification parade. The identification parade of the three appellants was conducted from amongst seven dummies. He admitted that prior to the identification parade, the accused/appellants stated before him that the appellants had remained confined in different police stations and the complainant alongwith P.Ws. Namely Abdul Majeed son of Shah Muhammad, Mst. Kaman Mai widow of Shah Muhammad and Zahoor Mai daughter of Shah Muhammad had been seeing them.
19. The identification parade so conducted is not worth-consideration for a number of reasons.
Firstly, the accused who were three in number had to be mixed up with dummies in the ratio of 1/10.
The identification of three accused from amongst seven dummies was not appropriate in Iaw.
Secondly, the accused/appellants had admittedly stated before the Magistrate that prior to the identification parade a complaint was made by the appellants that P.Ws have already been seeing them. Thirdly, the PWs while making the identification did not attribute any specific role of the accused persons at the time of occurrence. Thus no credence can be put upon the report of such identification parade and indeed no conviction can be based thereupon.
20. The medical evidence has been provided by Dr. Muhammad Farhat Abbas P.W.19 who conducted the post-mortem. The post-mortem examination report is Exh. P.Y while the pictorial diagram is Exh. P.Y/1. The medical evidence, however, is not sufficient by itself to connect any accused with the occurrence.
21. After having examined in detail the entire material on the record, we are not persuaded in the least to agree with the findings of conviction recorded by the learned trial Court. The prosecution has miserably failed to prove its case against the appellants beyond reasonable doubt. In fact the Prosecution evidence itself was mutually destructive and was not worthy of any credence.
Resultantly, this appal is accepted and the impugned judgment of the trial Court alongwith the conviction and sentence on each count is set aside. All the appellants are directed to be released forthwith, if they are not required in any other case.
22. In view of the acceptance of the criminal appeal, the murder reference is answered in the negative.