2006 P Cr (PLP)

SYED SAJJAD HUSSAIN Shah, J.

Appellants Sajid alias Saju and Muhammad Ashraf through the instant appeal filed under section 41.0, Cr.P.C. have challenged the judgment dated 31-7-2002 passed by Mr. Mustafa Tanvir Sufwat, learned Additional Sessions Judge, Lahore whereby he convicted and sentenced the appellants under section 302/34, P.P.C. to imprisonment for life and to -pay a compensation of Rs.50,000 each to the legal heirs of the deceased and in default thereof to undergo simple imprisonment for six months in case F.I.R. No.24 of 2000 dated 6-2-2000 under section 302/34, P.P.C. registered with ;Police Station Nishtar.Colony, Lahore.

2. Briefly the prosecution case as per F.I.R. is that Nazir Hussain complainant lodged complaint Exh.P.A. on 6-2-2000 wherein he stated that he is resident of village Bhullar and is working in a private textile factory. After leaving the factory on the same day at about 7-00 p.m. he was standing at Bhullar Morr to go to his village. Where, Muhammad Rafique, Haji Muhammad Hayat and Sabir Hussain Bhatti came from Lahore side. In the meanwhile, his brother Abdul Rashid, who ran a tea stall, also came there and crossed them on cycle, when he reached near an under construction factory, a crack of fire was heard where they attracted and found Abdul Rashid in pool of blood and saw three unknown persons running towards the fields in the east. Thereafter Rashid succumbed to his injury of fire-shot on his head at the spot. The motive behind the occurrence was that a few days ago at the tea shop of the deceased an altercation took place between the deceased and some unknown person.

3. The police investigated the case and found the appellants guilty and challaned them to face trial.

4. The learned trial Court formally charged the appellants on 16-7-2001 to which they pleaded not guilty and claimed trial.

5. The prosecution examined 12 witnesses namely Nasir Ali, A.S.-I. (P.W.1) who recorded the formal F.I.R., Khalid laved, S.-I. (P.W.2) the Investigating Officer of this case, Muhammad Rafique (P.W.3) an eye-witness, Muhammad Sadiq (P.W.4) the witness of last? seen, evidence, Munir Ahmad (P.W.5) recovery witness of .7 mm rifle Exh.P.C., Shaukat Ali C. No.10603 witness of sealed parcel containing blood-stained earth (P.W.6), Nazir Ahmad complainant (P.W.7), Muhammad Aslam H.C. No.7399 who escorted the dead body to the mortuary (P.W.8), Muhammad Arif witness of motive (P.W.9), Muhammad Ikram Gil S.-I. (R) another Investigating Officer (P. W,10), Dr. Muhammad Khalid Hussain who conducted the post-mortem (P.W.11) and Hamid-ud-Din Chishti Draftsman (P.W.12) to support its case in addition to the documentary evidence.

6. The appellants in their statements recorded under section 342, Cr.P.C. pleaded that they knew nothing about the occurrence and they -have falsely been implicated in this case. However, they did not opt to make their own statements as required under section 340(2), Cr.P.C. The appellants produced two witnesses namely Muhammad Akbar (D. W.1) and Baba Riaz in their defence.

7. The learned trial Court after concluding the trial, convicted and sentenced the appellants as mentioned above.

8. Learned counsel for the appellants contends that the impugned judgment is against the law and facts, the learned Court below has erred in passing the impugned judgment', no motive is attributed to the accused, it is blind occurrence, no specific role has been attributed to any of the appellants, there are contradiction in the statements of the P.Ws. the P.Ws. are interested witnesses and the case of the appellants fall under section 4(3) of the Juvenile Justice System Ordinance, 2000.

9. On the other hand, learned counsel for the State has argued that the F.I.R. was promptly lodged with true facts and there is no exaggeration, the statements of the P.Ws. are in chain which strongly corroborate the prosecution version as the appellants were identified by the P.Ws. while leaving the spot, they have confessed their guilt before the police, the recovery of .7 mm rifle from appellant, Ashraf connect them with the offence, both the appellants are held liable for vicarious liability, the ocular account corroborates the medical evidence and the prosecution has fully established the case against the appellant beyond any shadow of doubt.

10. I have heard the learned counsel for the appellants as well as the State and perused the record carefully.

11. The P.Ws. were not present at the time of occurrence. After hearing the fire-shot, they rushed towards the spot. According to them, while they were moving towards the spot, they saw three persons running towards the east. No description of the running persons was given by the P.Ws. the incident took place at about 7-15 p.m. after 1 and 1/2 hours of the sun set on 6-2-2000. The weather report tendered in evidence as Exh.D.A. and Exh.D.A./1 shows that at the relevant time in those days was fog. Analyzing the situation logically, one could easily conclude that seeing a person from a distance of 300 ft. in dense fog, at that time, it was quite difficult let alone the identification.

12. Muhammad Sadiq (P.W.4) stated that while he was present in his fields, he saw three persons running towards eastern side out of them he identified Sajid, accused. This witness even did not try to know who was hit by the fire, he told this fact to the complainant on the next day when he visited the house of Nazir and learnt that his brother namely Abdul Rashid was murdered. In the cross-examination, he was unable to give time, date and year of the incident. It leads a question mark in mind of a man who analyzing the situation that in spite of knowledge about the murder, he did not visit the house of the deceased nor he informed the complainant or the police. All the P.Ws. had not alleged that the persons seen by them were having arms or not.

13. It was imperative duty of the Investigating Officer to have conducted identification parade of the accused, as they were not known to the eye-witnesses earlier but no step in this direction was taken. This fact alone proves fatal to the prosecution case as test identification parade was absolutely necessary when the appellants were not known to the eye-witnesses before.

14. Muhammad Ikram (P. W.10) in his examination-in-chief stated that during the investigation of case F.I.R. No.282 of 2002 under section 457/380, P.P.C. Sajid accused had disclosed that he had committed murder of Abdul Rashid along with Muhammad Ashraf and Muhammad Siddique accused but during cross-examination, he admitted that said case belongs to Police Station Nishtar Colony, Lahore, and he had not investigated that case and he was unable to state whether Sajid was an accused in that case or not.

15. Muhammad Ashraf P.W. who deposed regarding altercation with deceased had not even identified the appellants before the trial Court as the person with whom the deceased had altercation on the price of tea. During the course of cross-examination, this P.W. has also admitted that the appellants were not previously known to him.

16. In the circumstances when the accused were not previously known to the P.Ws. their description have not been given in the F.I.R. the prosecution did not make any attempt to get them identified through an identification parade or any other source, the P.Ws. did not exactly specify that out of the three accused who was the one who fired shot at the deceased, the failure of Investigating Officer to produce any details D of the case in which appellant Sajid was arrested neither he was able to give the detail of the case in which the appellant Sajid made confession regarding present occurrence, to bring home the guilt to the accused legal evidence is required to be of incriminating nature to connect them with the commission of crime beyond shadow of reasonable doubt. All the pieces of evidence produced by the prosecution are defective. The prosecution has miserably failed to substantiate its case against appellants Sajid and Ashraf beyond shadow of doubt.

17. This appeal is allowed, the appellants, are acquitted of the charges by giving them benefit of doubt. They be released forthwith, if not required in any other case. H.B.T./S-65/L????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.