' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1052 of 2002 filed by Jamsheed alias Shahzada, Atif alias Shahenshah and Shafique alias Cheeka, appellants who were convicted and sentenced by learned Judge, A.T.A. Court No,III, Lahore vide his judgment dated 22-5-2002 as under:-- ' Under section 353/34, P.P.C. R.I. For two years each.
' Under section 324/34, P.P.C. R.I. For ten years each plus payment of fine of Rs,20,000 each or in default two years' R.I. Each.
' Under section 302/34, P.P.C. Death each and under section 7(a), A.T.A., 1997 death each with the further direction to pay Rs,50,000 each as fine or in default two years' R.I. All the three appellants were also directed to pay Rs,100,000 (one lac) to Muhammad Yasin injured P.W. And to the legal heirs of Sadiq deceased in equal proportions as required under section 544-A, Cr.P.C.
' Murder Reference No,50-T of 2002 for confirmation of death sentence of all the three appellants or otherwise shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place on 18-4-2000 at 12-35 p.m. Within the jurisdiction of Police Station Lower Mall, Lahore at a distance of 400 yards while the matter was reported to the police by Irfan Akbar, S.-I./complainant through complaint Exh.P.A. On the same day at 1-30 p.m.
The formal F.I.R. Exh.P.A./1 was recorded by Muhammad Shafqat, S.-I. At 1-40 p.m. On the same day.
3. Of the case are that on the fateful day, that's, 18-4-2000 at 12-35 p.m. When Muhammad Asif alias Achha was being taken to the Court of Mian Faiz Muhammad, Magistrate Section 30, Lahore for a Peshi under section 392, P.P.C. In case F.I.R. No,40 of 1999 registered at Police Station Ravi Road, Lahore, under the supervision of Muhammad Sadiq Constable No,5315 and Muhammad Yasin Constable No,10195 armed with G-III, the complainant Irfan Akbar heard the fire- shots near the Court of Mr. Imtiaz Nazir, MIC, Lahore. He along with Muhammad Yaqoob, A.S.-I. Saw that 4/5 unknown persons whom they could identify, armed with fire-arms, had encircled the said two police constables so as to snatch Asif son of Khadim Hussain Rajput (under custody). They were firing at the Police Constables Muhammad Yasin and Sadiq. Both the constables released Asif by removing the "Kunda" of handcuffs from the Peti of Sadiq constable. The assailants scaled over the iron Jangla towards Lower Mall while firing. Both the injured constables were removed to the hospital while in Moribund condition. Yasin Constable even after receiving injuries, fired from G-III rifle but having lost his vitality could not target any of the assailants. The firing was so severe that it created terrorism. Nobody dared to follow the assailants. Raza Abbas, S.-I. Incharge Kuthchary Chowki also came. Later, Sadiq Constable died in the hospital while Yasin survived and appeared during trial as P.W.S.
4. Investigation of the case was taken over by Ishtiaq Hussain 'Inspector/S.H.O. P.W.25 reached at the spot, secured empties of cartridges, again said the bullet empties of rifles and pistol .30 bore vide memo. Exh.P.D. Regarding pistol and vide niemo. Exh.P.E. Regarding rifle, prepared site plan Exh.P.H. And Exh.P.H./l, took into possession blood-stained earth vide memo. Exh.P.E. And Exh.P.C., prepared inquest report relating to Sadiq deceased Exh.P.25/A, recorded the statement of Muhammad Yasin/C injured at the spot. On 31-5-2000 arrested Jamshed alias Shahzada and from the arrested accused Jamsheed alias Shahzada recovered .30 bore pistol and rifle and pump action was also recovered on his pointation which were taken into possession Exh.P.W.-25/G. After completion of the remaining formal investigation' and other legal formalities, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 27 witnesses in all, thereafter, learned P.P. Tendered in evidence report of the F.S. Laboratory Exh.P.Y., that of Chemical Examiner Exh.P.Y./1 and closed the prosecution case, then the statements of the accused/appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication. After conclusion of the trial, the accused-appellants were convicted and sentenced as mentioned above by the learned trial Court.
6. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellants submits that three eye-witnesses were produced by the prosecution for the murder of Sadiq and for causing injuries on the person of Yasin, namely, Irfan Akbar S.-I./complainant P.W.1, Muhammad Yaqoob, A.S.-I. P.W.2 and Muhammad Yasin injured P.W.5, that as far as, Irfan Akbar, S.- I., P.W.1 and Muhammad Yaqoob, A.S.-I. P.W.2 are concerned, they did not name any of the appellants before the learned trial Court, that so far as, Muhammad Yasin injured P.W.5 is concerned, he has taken the names of two appellants, namely, Jamshed alias Shahzada and Atif alias Shahenshah but he was duly confronted with his statement recorded under section 161, Cr.P.C.
Where he had not named any accused person, that no identification parade had held, that as far as recoveries are concerned, those were planted on the appellants because the report of fire-arm expert which is Exh.P.I. Does not connect the appellants with any evidence, that it was a case of no evidence but the learned trial Court had convicted the appellants without any evidence.
7. On the other hand, learned counsel for the State concedes that as far as, Irian Akbar, S.-I. P.W.1 and Muhammad Yaqoob, A.S.-I., P.W.2 are concerned, they have not named the appellants before the learned trial Court. However, she submits that as far as, Muhammad Yasin injured P.W.5 is concerned, he had identified Jamshed alias Shahzada and Atif alias Shahenshah appellants before the learned trial Court and that's sufficient evidence to connect the appellants with the commission of offence and that recoveries were effected from the appellants. She supports the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, occurrence had taken place on 18-4-2000 at 12-35 p.m: while the matter was reported to the police on the same day at the spot at 1-30 p.m. The deceased in this case is Sadiq Police Official and the injured is Muhammad Yasin, F.C. After the arrest of the accused, no identification parade had held, three eye-witnesses were produced before the learned trial Court, namely, Irfan Akbar, S.-I., P.W. 1/complainant, Muhammad Yaqoob, A.S.-I., P.W.2 and Muhammad Yasin, injured P.W.S. Neither Irfan Akbar,.S.-1., P.W.1/complainant nor Muhammad Yaqoob, A.S.-1., P.W.2 supported the prosecution case because they did not take the name of the appellants before the learned trial Court, even Muhammad Yasin, F.C. P.W.5 did identify Jamshed alias Shahzada and Atif alias Shahenshah appellants and when learned defence counsel cross-examined this witness, he admitted that it came on record through his statement recorded under section 161, Cr.P.C. Which is Exh.D.B. That he has not mention:A the names of the appellants. As far as, recovery is concerned, that's, of no use to the prosecution because there is no positive report to this effect.
9. After having heard the learned counsel for the parties and going through the record, we are of the considered opinion, that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. It is a case in which there are so many doubts and benefit of same always goes in favor of the accused not as a matter of grace but as a matter of right, so while extending the same benefit of doubt, we accept this appeal, set aside the conviction and sentence recorded against the appellants by the learned trial Court. Death sentence awarded to all the appellants on the two counts is not confirmed. Murder Reference is replied in negative. All the appellants are in Jail and they shall be released forthwith if not required to be detained in any other case.