2000 P Cr (PLP)

Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Nobody was named in F.I.R. and no description of accused had been given therein‑‑‑Mere on the statement of wife of deceased that she had identified accused in the Court at time of trial was not enough to maintain conviction against accused on charge of capital punishment‑‑‑No motive whatsoever had been given either by first informant or by prosecution witness either in F.I.R. during investigation or before Trial Court‑‑‑No evidence was on record to show that anybody had seen accused committing murder of deceased‑‑‑Alleged recovery of Chhuri effected after one month and eleven days of occurrence and that too from an abandoned place which was accessible to everybody, could not be believed‑‑‑Witness of extra judicial confession of accused did not say anything that what words were used by accused while making extra judicial confession‑‑‑Mere saying that accused had confessed their guilt was not sufficient to believe same especially when statement of witness in that regard was recorded 7/8 days after occurrence and accused were arrested about one month after alleged extra judicial confession‑‑‑Prosecution had failed to prove its case against accused beyond any shadow of doubt and prosecution case being full of doubt, benefit of same had to go to accused‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and accused were acquitted from the charge against them. 1974 SCMR 175 and PLD 1978 Kar. 541 ref. Abdul Qayyum Anjam for the State. Taqi Ahmad Khan for the Complainant. JUDGMENT This judgment will dispose of Criminal Appeal No. 1175 of 1998 filed by Muhammad Ashraf and Muhammad Latif, appellants who were convicted under section 302/34, P.P.C. and sentenced to imprisonment for life by learned Additional Sessions Judge, Sheikhupura vide his judgment, dated 28‑11‑1998 for committing the Qatl‑e‑Amd of Haji Umar Din.

2. Occurrence in this case had taken place at 3 a.m. (midnight) on 28‑4‑1997 within the revenue estate of Kot Pindi Das which is at a distance of 12 miles from Police Station Factory Area, Sheikhupura while the matter was reported to police at 3‑15 a.m. (midnight) on same night by Muhammad Rafique (P.W.3) through complaint Exh.P.D. and that formal F.I.R. Exh.P.D./1 was recorded by Mukhtar.Ahmad, S.‑I. (P.W.12).

3. Briefly stated facts of the case were that ‑at about 1‑00 p.m. on 28‑4‑1997, the complainant heard shrieks of females from the house of his Phupa, whereupon he alongwith his son Abdul Latif climbed upon the roof of their house and saw Haji Umar Din lying on floor in the pool of blood. His both wives, namely, Sakina Bibi and Siddiquan Bibi were weeping. They then proceeded to the house and saw that Haji Umar Din had sustained cuts with sharp‑edged weapon below his neck and right side of the chest which was profusely bleeding. In injured condition, Haji Umar Din was being taken 'to hospital but in the way, he succumbed to the injuries.

4. After registration of the formal F.I.R. Muhammad Ashiq, S.‑I. (P.W.10) proceeded to Mayo Hospital, prepared the inquest report Exh.P.G. and also injury statement Exh.P.K. He then visited the spot and took into possession the blood‑stained earth vide memo. Exh.P.A. The investigation on 23‑5‑1997 was transferred from him and then was taken over by Abdur Rashid, A. S.‑I. (P.W.11) who arrested the accused Muhammad Ashraf and Muhammad Latif on 5‑6‑1997. Muhammad Latif while in police custody on 9‑6‑1997 led to the recovery of Chhuri P.4 which was taken into possession vide memo. Exh.P.C. After completion of the investigation, both the accused were challaned to face the trial.

5. Prosecution in order to prove its case produced 12 witnesses in all and then the learned Assistant District Attorney tendered in evidence Reports of the Chemical Examiner Exh.P.M. and Exh.P.N. and also Reports of the Serologist Exh.P.O. and Exh.P.P. and closed the prosecution case. After that, statements of the appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial, both the appellants were convicted and sentenced as stated above.

6. Learned counsel for the appellants has read before me the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and submits that there is no eye‑witness in this case; that the accused were neither named in the F.I.R. nor in the statements of the witnesses recorded under section 161, Cr.P.C. and that no identification parade was held in this case. Further, submits that complainant was not an eye‑witness because he came to the spot after occurrence. Learned counsel also attacked on the evidence of Rana Muhammad Younas, P. W.7 and submits that extra judicial confession allegedly made by the appellants is joint one. He explains that occurrence in this case had taken place on 28‑4‑1997 while statement of Rana Muhammad Younas (P.W.7) was recorded on 3‑5‑1997, 7/8 days after the occurrence. Also submits that according to Abdur Rashid, A.S. ‑I. (P.W.11) appellants were arrested on 5‑6‑1997 but Muhammad Younas (P. W.7) in cross‑examination stated that the appellants were arrested on the same day, although there is difference of about one month between the alleged extra judicial confession and arrest of the appellants, as per record. As far as recovery of weapon of offence is concerned, learned counsel submits that the same was allegedly recovered from an abandoned place which was accessible to everybody and that too after one month and 11 days of the occurrence. Learned counsel lastly submits that prosecution has miserably failed to prove its case against the appellants. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that Mst. Sakina (P. W.1) was a natural witness. there is no dispute on the time, place of occurrence and the injuries caused by sharp‑edged weapon. Learned counsel for the complainant has tried to convince me that that Mst. Sakina Bibi being a natural witness, her statement should be believed and that there, was no reason to falsely implicate the appellants. Further submits that there was no need of identification parade as Mst. Sakina Bib!, P. W.1 had identified the appellants at the time of trial. Learned counsel relied on 1974 SCMR 175 and PLD 1978 Kar.

541. He submits that ocular account is corroborated by extra judicial confession made by the appellants and the recovery of blood‑stained Chhuri. I have heard learned counsel for the parties and have gone through the prosecution evidence. In the instant case, nobody was named in the F.I.R. and no description of the accused has also been given in the F.I.R. Statement of Mst. Sakina P. W.1 is very much relevant for the just decision of this case. She was duly confronted by the learned defence counsel with her statement Exh.D.A. where nobody was named. No description of the accused was given, so merely on the statement of Mst. Sakina P. W.1 that she identified the appellants in the Court at the time of trial is not enough to maintain the conviction against the appellants on a charge of capital A punishment. No motive whatsoever has been given either by the first informant or by Sakina, P. W.1 either in the F.I.R., during the investigation or before the trial Court. There is not an iota of evidence on record to show that anybody had seen the appellants committing murder of the deceased. So far as alleged recovery of Chhuri is concerned, that was effected after one month and 11 days of the occurrence and that too from an abandoned place which was accessible to everybody. 1, therefore, do not believe the recovery of Chhuri in the instant case. Muhammad Younas, P.W.7 the witness of extra‑judicial confession did not say anything that what words were used by the appellants while making extra judicial confession in this regard. Mere saying that appellants had confessed their guilt is not sufficient to believe the same. It may also be noted here that occurrence took place on 28‑4‑1997. Muhammad Younas, P.W.7 stated that appellants admitted their guilt on 4‑5‑1997 and also admitted in his cross‑examination that his statement was recorded 7/8 days after the occurrence and the moment the appellants trade the extra‑judicial confession. Police came and arrested them. According to statement of Abdur Rashid, A. S.‑I. (P.W.11) appellants were arrested on 5‑6‑1997, that is, one month after the alleged extra judicial confession. This is irreconcilable and shatters the prosecution case regarding arrest of the appellants and the alleged extra‑judicial confession. The net result of above discussion is that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. The prosecution case is full of doubts, the benefit of which has to go to the accused. So, I accept the appeal filed by the appellants and set aside the conviction and sentence recorded by the trial Court against the appellant and acquit them from the charge. Both the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. H.B.T./M‑200/L Appeal accepted.