MUHAMMAD HUSSAIN and otherss vs THE STATE

' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.59/J of 2000 filed by Muhammad Hussain appellant and Criminal Appeal No.233 of 2000 filed by Mubarak Ali alias Makha appellant who were convicted and sentenced by learned Additional Sessions Judge, Chunian, vide his judgment dated 15-2-2000 as under:-- ' Muhammad Hussain, appellant; Death under section 302(b), P.P.C. With the further direction to pay Rs.10,000 as compensation to the legal heirs of the deceased or in default six months R.I. Under section 458, P.P.C. 10 years' R.I. With a fine of Rs.10,000 or in default six months' R.I.

' Mubarak Ali alias Makha, appellant; Imprisonment for life under section 302(b), P.P.C. With the further direction to pay Rs.10,000 as compensation to the legal heirs of the deceased or in default six months' R.I. Under section 458, P.P.C. Two years' R.I.With a fine of Rs.10,000 or in default six months'

R.I.

' Murder Reference No.92 of 2000 for confirmation of death sentence of Muhammad Hussain appellant or otherwise shall also be disposed of through this single judgment.

2. Brief facts of the case as narrated by Pervaiz Iqbal complainant are that on 20-9-1994 complainant, his brother Javed Iqbal (deceased) Abdul Rashid, Muhammad Shoaib Abid and their father Muhammad Siddique, were asleep in the house along with other family members, at about 3-00 a.m. Two persons armed with fire-arms scaled over the wall of their house but they woke up, the trespassers hastened to open the door to run away when the complainant party chased them.

One of them fired with his gun .12 bore hitting the neck of the complainant's brother Javed Iqbal, who fell down. After this the trespa'sser also fired with his gun on Javed Iqbal hitting his right hand fingers. The complainant, Abdul Rashid and Muhammad Shoaib escaped unhurt. In the meanwhile the neighbourers came over there and the accused fled away. The complainant suspected that some enemies had trespassed into their house and had killed his brother due to some grudge.

3. After registration of the formal F.I.R., the investigation of the case was carried out when it transpired that the accused were the above noted persons, who were so traced by the tracker, arrested and subsequently identified by the eyewitnesses. The weapons of offence were recovered from them and thus, they were challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 17 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.A. 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. Raja Bashir Ahmad Magistrate Ist Class was examined in this case as D.W.1. After conclusion of the trial, both the accused were convicted and sentenced as mentioned above by the learned trial Court.

5. Learned counsel for Muhammad Hussain appellant submits that Identification Parade of Muhammad Hussain appellant took place about 5/6 months after his arrest, so it was impossible for the witnesses to have identified the accused in Jail, that in the F.I.R. No description of any of the accused was mentioned, that only word fire-arm has been used in the F.I.R., that no description of weapon has been given in the F.I.R., that occurrence took place in dark hours of night, that no source of light has been mentioned in the F.I.R. And even in the site-plan, that recovery has been planted on the appellant and that is one year after the occurrence, that both the eye-witnesses are related to the deceased; that there is violation of section 103, Cr.P.C. That statement of the tracker cannot be taken into consideration, that there is no fire-arm report, that no empty was recovered from the spot, that prosecution failed to prove its case against the appellant and he is entitled to acquittal.

6. On the other hand,'^learned counsel for Mubarak Ali alias Makha appellant adds that he was attributed an injury at the hand of the deceased but the doctor during cross-examination admitted that it could be the result of one fire.

7. On the other hand, learned counsel for the State submits that eye-witnesses have no enmity with the appellants, so there was no question of false implication of the appellants in this case. He 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 very carefully. In the instant case, occurrence took place on 20-9-1994 at 3-00 a.m. And the matter was reported to the Police at 7-30 a.m. On the same day at bus stand Chunian by Pervaiz Iqbal through written complaint Exh.P.C. And formal F.I.R. Exh.P.C. /1 was recorded by Muhammad Akbar Head Constable at 7-40 a.m. Though the distance between the place of occurrence and the Police Station was 12 miles. The name of the accused appellants was not mentioned in the F.I.R.

Even no description of the accused was stated in the F.I.R. The source of light was also not stated in the F.I.R. In the month of September at 3 a.m., there is dead dark. During the trial, the complainant September at 3 a.m., there is dead dark. appeared before the trial Court and did not state that it was Muhammad Hussain who fired first shot and the second shot was fired by Mubarak Ali at the deceased. The only statement made by the complainant was that both the accused fired on the person of the deceased. He was star witness of the prosecution being inmate of the house where the occurrence had taken place. On such shaky evidence, conviction cannot either be awarded or maintained.

Muhammad Hussain accused was arrested on 1-10-1994. His identification parade took place on 23-2-1995, that is, five months after the occurrence. After such a long delay, it was not possible for the P. Ws. To have identified the accused when in the F.I.R., no description wad given. Similarly, Mubarak Ali accused was arrested on 14-10-1994. A carbine was alleged to have been recovered from him but no crime empty having been taken into possession from the spot by the Investigating Officer, mere recovery of the fire-arm does not advance the case of prosecution any further. It is also noteworthy that Mubarak Ali accused was arrested on 14-10-1994 but astonishingly the said accused got recovered the carbine on 16-8-1995, that is after more than nine months. It also smacks of mala fide on the part of the prosecution.

The other eye-witness namely Muhammad Shoaib who is first cousin of the complainant could not give any plausible explanation for his being present at the spot at the relevant time when he had his own house in the same vicinity. This witness introduced the story C before the trial Court stating that Muhammad Hussain fired the first shot while the second was made by Mubarak Ali, which hit on the hand of the deceased. We disbelieve his evidence being not resident of the house where the occurrence had taken place.

Having seen the case from all angles, we are of the considered view that the prosecution has miserably failed to prove its case against the appellants beyond any doubtful drought rather case of the prosecution is full of doubts. So while extending the benefit of doubt, we accept both these appeals filed by the appellants. The conviction and sentence recorded against both the appellants are set aside. Death sentence of Muhammad Hussain appellant is not confirmed. Murder reference is replied in negative. Both the appellants are in jail and they shall be released forthwith if not required to detained in any other case.