1. ' BASHIR A. MUJAHID, J.--- Muhammad Hussain alias Hussaini and Sajawal alias Jani have challenged judgment dated 10-11-1998 passed by Special Judge, ATA-III, Lahore whereby they were convicted Lnder sections 302/34, P.P.C. And sentenced to death and fine of Rs,50,000 each. They were ordered to pay compensation of Rs,10,000 each to the legal heirs of the deceased Muhammad Asif. They were further convicted under sections 3/4, Explosive Substances Act and were sentenced to imprisonment for life. They were also convicted under sections 324/34, P.P.C.
2. And sentenced to 10 years' R.I. Each and fine of Rs,25,000 each for causing injuries to Muhammad Siddique, Muhammad Younas, Hafiz Muhammad Kashif and Sohail Baig, P.Ws.
3. ' Brief facts of the prosecution case are that F.I.R. No,262 of 1996 Exh.P.A./1 was registered at Police Station Ravi Road, Lahore on 22-10-1996 at 8-35 p.m. On the basis of statement Exh.P.A. Of Zamin Ali Shah P.W.4 recorded at 7-30 p.m. On the same day by Muhammad Zahoor, S.-I. P.W.16 at Emergency Ward, Mayo Hospital, Lahore wherein it was stated that he runs Auto Service Shop at Ravi Road, Lahore, Sajawal alias Jani, neighbour who was proclaimed offender in case F.I.R. No,212 of 1996 registered with Police Station Ravi Road, demanded Rs,20,000 as Jagga Tax, on telephone at 4-30 p.m. The complainant refused to pay the Jagga Tax on which he threatened for dire consequences. On the same day at 7-10 p.m. Sajawal alias Jani accused came to his workshop on motorcycle alongwith an unknown person and threw handgrenade at the complainant and his apprentences which exploded hitting the shutter of the shop and resulted into injuries to Muhammad Asif, Muhammad Siddique, Hafiz Muhammad Younas, Hafiz Muhammad Kashif and one customer Sohail Baig. The injured persons were removed to Mayo Hospital. Muhammad Asif succumbed to the injuries on the way and he got his statement Exh.P.A. Recorded in the Emergency Ward, Mayo Hospital, Lahore.
4. ' Muhammad Zahoor, S.-I., P.W.16 after recording the statement Exh. P.A. Of the complainant sent the same for registration of formal F.I.R. He took into possession the dead body of Muhammad Asif and prepared his injury statement vide memo. Exh. P.L. And inquest report vide memo. Exh. P.K. And entrusted the same to Manzoor Ahmad and Muhammad Zaman F.Cs. For post-mortem examination. He himself arrived at the spot and took into possession the blood-stained earth from the place where Muhammad Asif was injured vide memo. Exh. P.D. And prepared the rough site plan of the place of occurrence. He received an application Exh. P.N. Moved by the complainant wherein he mentioned Muhammad Hussain alias Hussaini co-accused. On 23-10-1996 Manzoor Ahmad P.W.2 produced the last-worn clothes of the deceased before him which were taken into possession vide memo. Exh. P.B. On the same day he got prepared site plan through Imran Bukhari Draftsman P.W.15. On 15-11-1996 he arrested Muhammad Hussain appellant and sent him in judicial lock-up for holding identification parade which was conducted on 20-11-1996 under the supervision of Muhammad Ashraf Yousaf P.W.13 who prepared the report of identification parade Exh. P.H. The report of the identification parade prepared by M.I.C. P.W.13 is Exh.P.H. Thereafter the investigation of the case was entrusted to Khadim Hussain, S.-I. P.W.17, who declared Sajawal alias Jani accused as proclaimed offender after taking/initiating proceedings under sections 87/88, Cr.P.C. And submitted the challan against Muhammad Hussain appellant. On 2-7-1997 he arrested Sajawal appellant. He completed the investigation and submitted the complete challan against the accused.
5. ' Charge was famed by the trial Court which was denied by the accused and they claimed trial.
6. ' During the trial prosecution examined as many as 18 witnesses to prove the guilt of the accused.
7. ' Medical evidence was furnished by Dr. Mahfooz Ahmad P.W.9 who on 23-10-1996 at 3-00 p.m.
8. Conducted the post-mortem examination on the dead body of Muhammad Asif and found the following injuries on his body:--
(1) Multiple punctuates laceration, the smallest being 0.5 x 0.5 c.m. x bone deep and the largest being 4.5 x 1 c.m. Cranial cavity deep, with an abrasion 3 x 1 c.m. (around the left eye) and contusion involving left cheek 8 x 5 c.m. All on the face and forehead.
(2) Multiple punctuate laceration in an area of 9 x 10 c.m. On front of right shoulder.
(3) Multiple punctuate laceration in an area of 13 x 8 c.m. On the front and lateral side of middle of right forearm.
(4) Four abrasions and two laceration in an area of 15 x 11 c.m. On front of upper part of left chest extending up till front of left shoulder.
(5) An irregular lacerated wound 5 x 2 c.m. x muscle deep with contusion around it on the back of left shoulder, 3 c.m. Behind its tip 9 c.m. Above the left axilla.
(6) An irregular laceration 6 x 4 c.m. x nuscle deep on the back of right shoulder, 11 c.m. To the right of midline and just ending on the back of right shoulder tip.
9. ' Dr. Muhammad Aslam Joya had medically examined Hafiz Muhammad Younas P.W.7 through M.L.R. Exh.P.R., Muhammad Siddique P.W.6 through M.L.R. Exh.P.S. Sohail Baig through Exh.P.T:, Muhammad Kashif through M.L.R. Exh.P.U. And M.L.R. Of Hafiz Muhammad Younas is Exh.P.V. The M.L.Rs, were proved by Abdul Ghafoor C.W.1 and Abdur Riaz P.W.18, Naib-Qasid, who had brought record of the hospital. They identified his handwriting and signatures.
10. ' The ocular account was furnished by Zamin Ali Shah complainant P.W.4 who supported the version of F.I.R. And stated the motive for the occurrence that Sajawal alias Jani had demanded Jugga Tax from him on his refusal he was threatened for dire consequence, thereafter he alongwith Muhammad Hussain alias Hussaini threw hand grenade at his shop. Hafiz Muhammad Kashif appeared as P.W.5, Muhammad Siddique as P.W.6 and Hafiz Muhammad Younas as P.W.7.
11. Abdur Rehman appeared as P.W.3 who were injured witnesses of the occurrence and were medically examined. They supported the prosecution 'story as narrated by the complainant and had identified Sajawal and Hussaini in the Court. However, Hafiz Younas and Hafiz Kashif were not sure as who out of accused was driving the motorcycle as they had become unconscious after receiving injuries. Ghulam Hussain P.W.8 and Zamin Ali Shah P.W.4 had identified Muhammad Hussain alias Hussaini accused during the identification parade.
12. ' Muhammad Ali Qureshi, S.-I. P.W.1 had registered the formal F.I.R. Exh. P.W.1. Manzoor Ahmad Constable P.W.2 had got the postmortem examination conducted and produced the last-worn clothes of the deceased before the Investigating Officer Amanat Ali, A.S.-I. P.W.11 had arrested Muhammad Hussain alias Hussaini accused when they were on patrol duty on 14-11-1996 and produced him before the Investigating Officer Nazir Ahmad, A.S.-I. P.W.12 was entrusted warrants of arrest of Sajawal accused but he was not traceable and proceedings under sections 87/88, Cr.P.C.
13. Were initiated against him and he was declared proclaimed offender. Muhammad Jamil H.C.
14. P.W.14 had deposited.The sealed parcels in Police Malkhana for safe custody.
15. ' Muhammad Ashraf, S.-I. Was examined as C.W.2 who also tried to arrest the accused Sajawal after obtaining his warrants of arrest but he was not traceable.
16. ' The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner vide memo. Exh.P.W., of Serologist as Exh.P.X. And that of the Forensic Science Laboratory as Exh . P.
17. Y.
18. ' The statements of the accused were recorded under section 342, Cr.P.C. Towards the end of the trial. They denied the allegation and claimed innocence and false implication.
19. ' The trial culminated into their conviction as mentioned above.
20. ' They have challenged their conviction and sentences through Criminal Appeal No,1115 of 1998 while the trial Court has sent up Murder Reference No,448-T of 1998 for confirmation of their death sentence. Both the matters are being decided by this single judgment.
21. ' Learned counsel foe the appellants has argued that the appellants have been falsely implicated in the case. Muhammad Hussain alias Hussaini appellant was not nominated in the F.I.R. But was implicated subsequently by moving an application by the complainant which has got no evidentiary value. He was not identified by his role during the identification parade either by the complainant P.W.4 or Ghulam Hussain P.W.8 and Abdur Rehman P.W.3. There is no motive alleged by the complainant against him. Nothing has been brought on record as why he had joined his co- accused Sajawal. Therefore, the case of prosecution is doubtful.
22. ' Conversely the appeal has been opposed by the learned State counsel who has supported the impugned judgment.
23. ' Heard. Record perused.
24. ' Sajawal alias Jani was nominated accused in promptly recorded F.I.R. The motive has also been alleged and proved against him. The complainant Zamin Ali Shah has no previous enmity against him for his false implication or substitution by letting off the real culprit. The prosecution case against him is established by the statement of the complainant corroborated by Abdul Rehman P.W.3, Muhammad Kashif P.W.5, Muhammad Siddique P.W.6 and Hafiz Muhammad Younas P.W.7 and Ghulam Hussain P.W.8 who were also injured in the same occurrence and their presence at the spot cannot be doubted. The prosecution case has further been corroborated against Sajawal by his abscondence. The ocular account has been further corroborated by medical evidence. There is no doubt that Sajawal alias Jani is real culprit for commission of heinous offence, wherein Muhammad Asif was murdered and four innocent persons received injuries. Therefore, to his extent the conviction is maintained and his appeal is dismissed having no force. Death sentence awarded to him is confirmed.
25. ' As far as the case of Muhammad Hussain alias Hussaini is concerned, he was not nominated in the F.I.R. No description or features were given in the F.I.R. But was implicated through an application moved by the complainant subsequently. The supplementary statement according to the judgment reported as 1995 SCM R 1350 has got no evidential value. The statements of the eye- witnesses against him are also discrepant. Abdul Rehman P.W.3 and Ghulam Hussain P.W.8 failed to identify Muhammad Hussain accused by his role during the identification parade and no description was given by the complainant in the F.I.R. Of the accused who was accompanying Sajawal. They merely picked out him as accused in the occurrence, therefore, the prosecution case has not been proved against Muhammad Hussain alias Hussaini appellant beyond doubt and the benefit of doubt is being extended in his favor. The appeal to his extent is allowed. His conviction and sentence is set aside. He is directed to be released forthwith if not required in any other case.
26. ' Murder Reference No,448-T of 1998 to the extent of Muhammad Hussain alias Hussaini is answered in the negative while to hie extent of Sajawal appellant is answered in the affirmative. Judgment accordingly.