' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,104/J of 2002 filed by Abdul Rashid through jail who was convicted and sentenced vide judgment dated 17-5- 2002 by Judge, Anti-Terrorism Court. Gujranwala as under:-- ' Death and to pay a tine of Rs,50.000 under section 302(b), P.P.C. Read with section 7(a) of Anti- Terrorism Act. 1997 for the murder of Syed Fida Hussain, ' Death and to pay a tine of Rs,50,000 under section 302(b), P.P.C. Read with section 7(a) of Anti- Terrorism Act. 1997 for the murder of Sarwat Batool.
' Death and to pay a tine of Rs,50,000 under section 302(b), P.P.C. Read with section 7(a) of Anti- Terrorism Act, 1997 for the murder of Alamdar Hussain Shah.
' The fine if recovered was to be paid to legal heirs of the deceased and in case of non-payment.
The convict appellant was to undergo S.I. For six months on each count.
' 10 years' R.I. And to pay a fine of Rs, One lac, in default six months' S.I. Under section 324. P.P.C. Read with section 7(a) of A.T.A., 1997.
' Murder Reference No,49/T of 2002 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at about 8-30 a.m. On 5-10-1998 at a distance of 1-1/2 furlongs from Police Station Civil Lines, Gujranwala while the matter was reported to the police by Syed Imran Raza Iqbal through written complaint Exh.P.F./1 at 9 a.m. The same day at Civil Hospital and the formal F.I.R. Exh.P.F. Was recorded by Abdul Naeem, Head Constable.
3. Briefly stated the facts of the case are that at about 8-30 a.m. On 5-10-1998 Fida Hussain Shah, Magistrate alongwith his daughter Sarwat Batool and gunman Alamdar Hussain left the house in a rickshaw. The complainant Imran Raza also left the house after them on a bicycle in order to purchase medicine. Father of the complainant has to drop Sarwat Batool as usual in the college and thereafter had to go to his office. When the said rickshaw reached opposite to the main gate of Commissioner Office, four unknown persons armed with kalashnikovs came on two motorcycles and appeared in front of the rickshaw and two of them made indiscriminate firing on the rickshaw from the front as well as backside. The driver of the rickshaw tried to run away but due to indiscriminate firing, Fida Hussain Shah. Sarwat Batool and Alamdar Hussain Shah died. The complainant with the assistance of passerby shifted the deceased and the injured rickshaw driver to the hospital. According to the complainant, Fida Hussain Shah being Shia had been receiving threats for his murder.
4. Investigation of the case was taken over by Zafar Ali Shah, S.-I. (P.W.23). He on receipt of information about the occurrence went to Civil Hospital, Gujranwala, prepared injury statement Exh.P.B., inquest Report Exh.P.S./2 in respect of dead body of Alamdar Hussain Shah, injury statement Exh.P.T., inquest report Exh.P.T./2 with regard to dead body of Syed Fida Hussain and then injury statement and inquest report qua the dead body of Sarwat Exh.P.U. And Exh.P.U./2 were respectively prepared. From the place of occurrence, blood was taken into possession through the help of cotton vide memo. Exh.P.J. Fifteen empties of kalashnikovs were secured vide memo. Exh.P.K.
The rickshaw was taken into possession vide memo. Exh.P.L. On 7-10-1998, statement of Aamer Javaid the rickshaw driver was recovered. The supplementary statement of the complainant was recorded on 23-10-1998. Accused Abdul Rashid was arrested on 8-3-1999 by Sohail Ahmad and on 9-3-1999 Tahir Iqbal accused was arrested. On 18-3-1999 Abdul Rashid accused led to the recovery of kalashnikovs and other fire-arms which were taken into possession vide memo. Exh.P.Q. After completion of the remaining formal investigation. Walayat, Abdul Rashid and Tahir Iqbal were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 23 witnesses in all. Then the learned P.P. Tendered in evidence reports of the Chemical Examiner and that of the Serologist and also the reports of Forensic Science Laboratory. After that statements of the accused was recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, except Abdul Rashid the present appellant, remaining two accused were acquitted.
6. Learned counsel for the appellant in support of this appeal submits that the appellant has been falsely implicated; nobody was named in the F.I.R.; no identification parade as required under the law was held in this case; there is not an iota of evidence against the appellant; complainant is son of the deceased Fida Hussain while brother of deceased Sarwat; the complainant made a supplementary statement on 23-10-1998 naming the present appellant as an accused; recoveries are planted one, Walayat one of the co-accused of the appellant was acquitted by the trial Court and that the prosecution has miserably failed to prove its case against the appellant. Concluding his submissions, learned counsel for the appellant submits that the appellant is entitled to clean acquittal.
7. On the other hand, learned Assistant Advocate-General assisted by learned counsel for the complainant submits that recovery of fire-arms on the pointation of the appellant and the positive report of the Fire-arms Expert sufficiently proves the prosecution case. Further submits that the appellant was named in the supplementary statement. Both the learned counsel however, admit that there is no other evidence on record against the appellant except the recovery of fire-arms.
8. We have heard learned counsel for the parties and have gone through the record. Occurrence in this case had taken place at 8-30 a.m. On 5-10-1998 while the matter was reported to the police at 9-15 a.m. On the same day at Civil Hospital, Gujranwala. The complainant is real son of Fida Hussain (deceased) and brother of Sarwat Batool. Besides these two deceased. Alamdar Hussain gunman of deceased Fida Hussain Shah who was a Magistrate was also killed. The star-witness of the prosecution was the rickshaw driver who was examined before the trial Court as P.W.11. He did not name any body nor identified anybody in the Court. Only one question was put to this witness.
The learned P.P. Even did not declare this witness hostile. After this witness, only the statement of Syed Imran Raza, son of deceased Fida Hussain remains in field. He was examined as P.W.13. What to talk of name of the assailants. This witness even did not give their description, according to his version assailants were four in number, two fired from the front and two from the backside when according to Aamer Javed P.W.11 the injured witness the rickshaw was fired from the backside, so there is material contradiction in the statements of both these eye-witnesses. Moreover, if two persons were firing from the front side and two from the back, then the risk of hitting the shots of assailants to each other cannot be kept out of consideration. No identification parade in this case was held as required under the Rules. In fact the case in which three persons were murdered has been spoiled by the police and did not take any pain to get the identification parade held.
9. Syed Imran Raza, the complainant made supplementary statement on 23-10-1998, 18 days after the occurrence, so no reliance can be placed on such a belated supplementary statement. If one goes through the examination-in-chief of the said witness, it would reveal that the identification parade was held not according to rules on the subject. For ,ready reference, some portion of his statement is reproduced:-- "On 21-5-1998, Mazhar Hussain and Dr. Qaiser Rashid came to me and informed me that two persons namely Abdul Rashid and Muhammad Rafique had come at Shama Colony and threatened him that you belong to the same sect and you are pursing the case with Syed Imran and you will have to face the same consequences as faced by Fida Hussain Shah. They had also informed me that thereafter they chased Muhammad Rafique and Abdul Rashid who had gone in a Madrassa. Then I went to the Madrassa with them and they showed me the persons who had come at their residence. Two of them are now present in the Court, who are Abdul Rashid and Tariq Iqbal. Then I went to the police station on the date but the S.H.O. Was not available at the police station on the said date. On 23-10-1998, S.H.O. Met me. Then I made an application before the S.H.O.
And my statement was also recorded by the police.
' I identified Kashif accused in jail who is present in Court."
' In our considered view both the eye-witnesses could not identify the assailants.
' Even the presence of Syed lmran, the complainant is doubtful because when his father who was a Magistrate was going to Courts in a rickshaw, there was no need for the complainant to bring the medicine on a cycle. He could have asked his father or gunman of his father to bring the medicine.
On the basis of such evidence, conviction on a capital charge cannot be maintained.
' Now, we take up the recoveries. Occurrence had taken place on 5-10-1998, crime-empties which were taken into possession from the spot allegedly were 15 in number when the digit five has been altered appellant was arrested on 3-9-1999, he got kalashnikovs recovered on 18-3-1999, crime- empties were sent to the Fire-arms Expert on 12-11-1998, that is with delay of 1 month and 7 days after the occurrence. It is also noteworthy that father of Abdul Rashid appellant had filed Writ Petition No,22502 of 1998 Exh.D.F. In which it was alleged that Abdul Rashid the present appellant was in illegal custody of police officials. The said writ petition was disposed of on 3-11-1998, it means that the appellant was already with the police and his formal arrest in this case was shown on 8-3-1999. In the face of these circumstances this concocted positive report of the Fire-arms Expert does not advance the prosecution case.
' After having analyzed the entire prosecution case, specially the statement of injured eye-witness namely Aamer Javaid, contradictions in the statements of the complainant and the injured P.W. As to firing by the assailants, holding of the identification parade not in accordance with the rules on the subject when the description of the assailants was not given in the F.I.R., we are of the considered opinion that the prosecution has I miserably failed to prove its case against the appellant rather the appellant has been able to create dents in the prosecution story. When dent is created, the benefit has to be given to the accused. Resultantly, we accept the appeal filed by the appellant. Set aside his conviction and sentence recorded by the trial Court and acquit him of the charge. The appellant is in jail and shall be released forthwith, if not required to be detained in any other case. His death sentence is not confirmed. Murder reference is replied in the negative.