MUHAMMAD RAFIQ and others vs THE STATE

' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.---This judgmentwilldispose of Criminal Appeal No,353- J/2003 filed by Muhammad Rafiq, Raiz Ahmad and Muhammad Yasin as well as Criminal Appeal No,1291 of 2003 which was separately filed by Riaz Ahmad.

2. Appellants were tried in case F.I.R. No,258, dated 8-10-1999 for the offence under sections 302/324/380/452/34, P.P.C. Registered at Police Station Nishtar Colony, Lahore by the Addl. Sessions Judge, Lahore who vide judgment, dated 2-6-2003 convicted all the appellants under section 302(b)/34, P.P.C. And sentenced each of them to imprisonment for life as Taazir and to pay Rs,10,000 as compensation to the legal heirs of victim or in default whereof to further undergo one year's S.I. Appellants were also convicted under section 452/34, P.P.C. And sentenced to imprisonment for five years' R.I. Each as well as to pay a fine of Rs,5000 each or in default whereof for further suffer six months' S.I. Both these sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellants.

3. The story of the prosecution case as narrated in the F.I.R. Is thaton 8-10-1999 at about 7.45 p.m.

Mst. Ruqqia Bibi P.W.3, wife of Muhammad Aslam deceased was cooking meal whereas her husband was lying on the cot in the room, when all of a sudden three unknown persons entered into the courtyard. The complainant enquired from them as to who they were and why they had entered into the house without permission. Statedly, in the meantime, her husband also came out in the courtyard and all the said persons started firing as a result of which Muhammad Aslam husband of the complainant received injuries and fell down. Son of the complainant namely Muhammad Waqas aged 5 years also received injuries during the occurrence. Thereafter one of the culprits called his co-accused by the name of Yasin asked him to flee away and all the said accused went out of the house when Muhammad Ayub brother of the complainant and Muhammad Faiz her father-in-law saw them coming out of the house. The injured were removed to the hospital where Muhammad Aslam died after almost ten days i.e, on 18-10-1999.

4. On receiving the information about the occurrence Abdul Majeed, S.I. P.W.10 reached General Hospital, Lahore and recorded the statement of Mst. Ruqqia Bibi P.W.3. He also obtained permission from Dr. Muhammad Khalid P.W.9 for recording the statement of injured persons and thus recorded statement Exh. PJ of Muhammad Aslam (who was still alive and conscious). The Investigating Officer during the spot inspection collected blood-stained earth as well as two crime empties and secured these articles vide recovery memo. Exh. PA and PB respectively. He also got prepared site plan and after complying with legal formalities submitted challan before the Trial Court whereprosecution produced fourteen witnesses to prove the charge against the appellant. Trial Court also examined Aman-ul-Haq F.C. (C.W.1) as Court witness who deposed about the service of summons of Syed Imam Bokhari Draftsman.

5. Trial Court also examined all the appellants under section 342, Cr.P.C. Who denied the charges and pleaded that they had been falsely involved in this case. None of the appellants made any statement under section 340(2), Cr.P.C. Nor produced any evidence in defence.

6. Trial Court, after appraisal of evidence available on record, vide judgment, dated 2-6-2003 convicted and sentenced the appellants as narrated earlier.

7. After hearing the learned counsel for the parties at some length and going through the record with their assistance, I have observed that at the time of occurrence appellants were not known to the complainant Mst. Ruqqia Bibi P.W.3 and during the investigation on the basis of statement of deceased which was statedly recorded on the day of occurrence i.e, Exh.PJ, appellants were involved in this case. After their arrest appellants were never put to the test of identification parade to rule out the possibility of their false involvement at the instance of complainant Mst. Ruqqia Bibi.

P.W.3 and the witnesses namely Muhammad Ayub P.W.2 and Muhammad Faiz (given up) who had seen the accused running away from the spot. I have also observed that while deposing before the Trial Court Muhammad Ayub P.W.2 never deposed that accused present in Court were seen by him while running away from the spot. In this regard, complainant of this case namely Mst. Ruqqia Bibi though had stated before the Trial Court that the accused present in Court had committed this offence but in the next breath she admitted that the accused were shown to her in the jail and that after their arrest appellant/accused were never got identified by her in the identification parade.

The statement of this lady was recorded after two years of the occurrence and the identification of the appellants in the Court after such a long time cannot be relied upon. As far the dying declaration (statement Exh.PJ of Muhammad Aslam deceased recorded on the day of occurrence), I have observed that statedly this statement was recorded by Abdul Majeed, S.I. P.W.10 but the police officer never bothered to affix his signatures on the document for the verification of the same nor such document bear the signatures or presence of any doctor who was available at the relevant time. According to the contents of this declaration at the relevant time appellants had caused injuries with firearms to the deceased but contrary to that, Medico-legal Report available on record reveals that along with fire-arm injuries deceased had two incised wounds as well as there is no explanation on the record as to how deceased received these incised wounds. The ocular account along with the evidence of dying declaration stands contradicted by the medical evidence.

' In the said backdrop of the case, it can easily be said that case against the appellants is full of doubts and they are entitled to get the benefit of the same. Accordingly, both these appeals (Criminal. Appeals Nos.353-J of 2003 and 1291/2003) are accepted, conviction and sentence of the appellants are set aside and they stand acquitted of the charges. The appellants shall be released forthwith, if not required in any other case.