' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Crl. Appeal No,2147 of 2002 and Murder Reference 94/T of 2002 (submitted for confirmation or otherwise) directed against the judgment dated 9-12-2002, passed by the learned Judge ATC-III, Lahore, whereby he convicted the appellant under section 7(a), ATA, 1997 and sentenced him to undergo death sentence on two counts with fine of Rs.50,000 (each count), compensation under section 544-A, Cr.P.C. Rs.5,00,000 (each count) or in default six months' S.I. Was also awarded to the appellant.
2. Brief facts of the case as narrated in the F.I.R. By the complainant are that on 20-10-1998 at about 12-30 (noon) the appellant alongwith Zaigham Abbas (murdered in police encounter) came on Utility Store, Barkat Market while armed with deadly weapons with the intention to commit dacoity.
On the arrival of the police both the accused ran towards the road and boarded wagon. The police official followed the wagon on which both the accused fired shots hitting Ghulam Murtaza and Munir Ahmad who died in the hospital.
3. After the occurrence, the necessary proceedings were completed by the police and the investigation of the case was handed over to Zulfiqar Ali Inspector who alongwith his subordinate proceeded to the spot from where he collected the blood-stained earth vide memo. Exh.P.W.1/5 and P.W.1/6. Last-worn clothes were also taken into possession by him vide memo. Exh.P.W.1/10 and P.W.1/11. He also prepared inquest reports vide memo. Exh.P.W.1/12 and Exh. P W 1/13 respectively.
Vide memos. Exh. P . W . 1/14 and. Exh.P.W.1/15 the injury statements of both the deceased were prepared by him. The accused/ appellant was arrested by Muhammad Feroze, Inspector who after completing the process of identification parade, challaned the accused.
4. The prosecution in order to prove its case has produced as many as 16 witnesses including doctor, Investigating Officers, eye-witnesses and other formal witnessed. After tendering in evidence reports of Chemical Examiner Exh.P.P./1, Exh.P.P./2 and reports of Serologist Exh.P.P./3 and Exh.P.P./4, learned P.P. Closed the prosecution evidence. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded his innocence. Learned trial Court after taking into consideration the every aspect of the case and hearing both the parties, convicted and sentenced the appellant as mentioned above. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submits that, the accused were not named in the F.I.R., no identification parade was held. As far as identification parade of the accused/appellant is concerned, that has not been established on the record as the accused were shown to the P.Ws. In the P.S. Before the identification parade, that it is a case of no evidence, that no role was mentioned by the eyewitnesses during the identification parade of the accused person, that during the identification parade 7 dummies were mixed with the accused which is against the High Court Rules and Orders. Learned counsel for the appellant adds that as far as description given by the eye-witness that the accused were wearing pent shirts is concerned, that is no description in the eye. Of law, that in the site plan without scale no witness was mentioned to the effect that they had identified the accused person. Learned counsel further submits that as far as site plan with scale is concerned, one Khurram Inspector was introduced as an eye-witness who had identified the accused person but he was not produced. He submits that no weapon of offence was recovered from the appellant during the course of investigation and there is no report of Fire- arm Expert to the effect that the 'empties recovered from the spot matched with the pistol recovered on the pointation of the appellant. He has relied upon 1985 SCM R 721 and PLD 1995 SC 1.
He lastly submits that the prosecution had failed to prove its case against the appellant and the appellant is entitled to acquittal.
6. Learned State Counsel on the other hand submits that statement made by the eye-witnesses to the effect that they were shown in the P.S. Before the identification parade, it was made as a concessional statement and under the fear of the accused person although, the eye-witnesses had identified the accused in the Court as well as in the jail during the identification parade and they have deposed so in their examination-inchief.
7. We have heard the learned counsel for the parties. In the instant case nobody was named in the F.I.R., no detailed description i,e, about the features of the appellant was mentioned in the F.I.R.
Jawad Khaliq P.W.5 has stated before the learned trial Court that he had identified the accused from their back and from the back no accused or any person can be identified so the said statement is ruled out of consideration. Then there is another witness Muhammad Ilyas, who is Manager of Utility Store. He had not gone to the place of occurrence and he was shown the accused person in the P.S. Before the identification parade. Then there is Muhammad Ismaeel P.W.2, the Rickshaw Driver. He was not named in the F.I.R. He was forced to sit in the P.S. For 10 days.
He was asked to depose against the accused person or he would be challaned in the instant case.
Then there is another witness Hakim Ali, Wagon Driver, who stated that he was forced to identify the accused person in the jail. Amjad Ali conductor was given up. No recovery of any fire-arm was effected from the appellant in the instant case, so the recovery of crime-empties from the spot is no avail to the prosecution. In fact the identification of the accused person is very doubtful in the instant case and there is not a single witness who had stated in clear terms before the learned trial Court that he had identified the accused person in the jail without being shown to him in the P.S. Before the identification parade.
8.After having heard the learned counsel for the parties and going through the evidence available on the record, we are of the opinion that the case against the appellant is of highly doubtful nature so while granting benefit of doubt this appeal is accepted and the conviction and sentence awarded to the appellant is set aside. Death sentence is not confirmed. Murder Reference is replied in the negative. The appellant is behind the bars. He shall be released forthwith if he is not required in any other case.
' Death sentence awarded to the appellant is not confirmed.