MUHAMMAD AMIN and others vs THE STATE

' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of M.R. No,10 of 1999 and Criminal Appeal No,25 of 1999 filed by Muhammad Amin and Zaheer Abbas appellants who were convicted and sentenced by Special Court Anti-Terrorism, Bahawalpur on 28-5-1999 for the murder of Zahid Iqbal deceased. They were convicted and sentenced as under:--- ' Muhammad Amin appellant was sentenced to death under section 302(b), P.P.C., with a fine of compensation of Rs,1,00,000 (one lac) under section 544-A, Cr.P.C., in default one year R.I.

' Muhammad Amin and Zaheer Abbas appellants were convicted under section 392134, P.P.C., to undergo 10 years R.I. With a fine of Rs,25,000 (twenty five thousand) each or in default one year R.I.

Each.

' Both the appellants were convicted under section 411/34, P.P.C., to undergo 3 years R.I. And fine of Rs,10,000 (ten thousand) each. In default six months R.I.

' All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C., was also given to them.

2. The occurrence in this case took place on 21-9-1999 at 6-00 p.m. Within the area of Chak No,28 1 k.m. Away from the concerned Police Station. The report was lodged by Zahid Iqbal deceased himself who was injured at that time, at 8-30 p.m. Which is Exh.P.C., in Civil Hospital Chishtian, and the same was recorded on the same day by Saleh Muhammad Investigating Officer (P.W.12) while formal F.I.R., was recorded at 9-15 p.m. On the same day which is Exh.P.C./1.

3. The facts in brief, as narrated in the F.I.R., lodged by Zahid Iqbal deceased himself, are that he on 19-1-1999 went on his motorcycle to Chak No,44/Fateh to see his father in law. When he reached near the bridge of watercourse within the area of Chak No,128/Murad, two unknown persons of medium height wearing Shalwar Qameez aged about 28/30 years were going on foot. When he reached near them, one of them pushed him from the motorcycle. He fell on the ground. The other asked him to leave the motorcycle, so he left the same. Both the accused sat on the motorcycle and on seeing the light from the bridge, the person who was sitting behind the motorcycle fired at the deceased. Amjad Farooq cousin of the deceased and brother of the deceased Muhammad Sarwar also came there in the meanwhile (sic) occurrence.

4. Saleh Muhammad (P.W.12) Investigating Officer after completing all the necessary formalities reached the spot and collected the blood-stained earths and took the same into possession vide memo. Exh.P.E. The appellants were arrested on 23-3-1999, on the same day on the pointation of Zaheer Abbas appellant he got recovered motorcycle bearing registration No,BNE-4887 from the house of Muhammad Amin appellant which is Exh.P.N. It was taken into possession vide memo.

Exh.P.G. Muhammad Amin appellant got recovered number plate of the above said motorcycle P.10 alongwith 2 glasses P.11/1-2 vide memo. Exh.P.M. Muhammad Amin appellant also got recovered pistol P.7 alongwith two bullets P.8/1-2 which was taken into possession vide memo. Exh.P.F.

5. The prosecution in order to bring home the guilt of the appellants produced as many as 12 witnesses. Amongst them there were two eye-witnesses namely Muhammad Sarwar Javaid the real brother of the deceased P.W.10 and Amjad Farooq P.W.11, cousin of the deceased. In the instant case Dr. Azhar Abbas Anwar (P.W.1) had prepared medico-legal report of Zahid Iqbal deceased on 19-1-1999 at 7-40 p.m. And he had also conducted post-mortem examination on the dead body of Zahid Iqbal on 20-1-1999. Report of Chemical Examiner is Exh.P.M. And that of Serologist is Exh.P.N.

6. Learned counsel for the appellants has read before us the prosecution evidence, statements of the appellants and submitted that nobody was named in the F.I.R., that it was a case of no evidence, that none of the eye-witness had stated before the trial Court that the statement of the deceased was recorded in shape of complaint Exh.P.C., which was later on converted into F.I.R.

Exh.P.C./1 in their presence. No empty cartridge was recovered from the spot, that inspite of the fact nobody was named as accused in the F.I.R., but no identification parade had taken place and also none had identified the motorcycle of the deceased. He further submits that both the eye- witnesses are chance witnesses and are closely related to the deceased, that both the eye- witnesses have not seen the actual occurrence with their own eyes. Learned counsel further submits that Muhammad Amin appellant was arrested by the 1.0., as per his statement, on 23-2- 1999 in case F.I.R. No,28 of 1999 while according to statements of both the eye-witnesses, they had identified both the appellants in the police lock-up on 23-3-1999. He further submits that neither the ages nor their heights correspond with the description given in the F.I.R., and the actual descriptions of the appellants as stated by the P.Ws. He adds that Amjad Farooq P.W. Did not say anything about the arrest of Muhammad Amin appellant.

7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that both the appellants were identified by the P.Ws. In the Police Station after their arrest. That there was no previous background of enmity between the parties, that there was no question of false implication of the appellants in this case, that it was not necessary to have the appellants identified in Jail, that prosecution has proved its case against the appellants beyond any shadow of doubt.

8. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court. In the instant case none of the accused was named in the F.I.R., and no identification parade had taken place which was necessary for the just decision of the case. Both the eyewitnesses produced by the prosecution are closely related to the deceased.

Although mere relationship is no criteria to discard the prosecution evidence but their presence at the spot seems to be doubtful and they can only be termed as chance witnesses, that no empty was recovered from the spot so there was no report of fire-arm expert and no independent corroboration has come on record through an unimpeachable source which can be made basis for conviction of appellants, that both the eye-witnesses namely Muhammad Sarwar Javaid and Amjad Farooq had seen the appellants running from the spot and had not seen them while firing at the deceased in the instant case according to the F.I.R. Moreover, the identification parade of the accused/appellants in the Police Station has no legal basis in the eyes of law and in this regard prosecution has failed to get the appellants identified through proper and legal course i,e,, through a Magistrate in Jail according to High Court Rules and Orders. It may also be noted here that according to the Medico-legal report of Zahid Iqbal, deceased, it was the police, who had brought him to the Hospital for medical examination while according to the F.I.R., lodged by Zahid Iqbal deceased himself, it was the eyewitnesses who had taken him to the Hospital. This also creates dent in the prosecution case. Amjad Farooq P.W. Did not say anything about the arrest of the appellants that how they were arrested.

9. Keeping in view the evidence and submissions made by the learned counsel for the parties, we are of the opinion that defence has been able to create doubts in the prosecution case and prosecution has failed to prove its case against the appellants beyond any shadow of doubt. In this view of the matter we accept this appeal, set aside the conviction and sentence awarded to the appellants by the learned trial Court. Murder Reference is replied in the negative and death sentence awarded to Muhammad Amin appellant is not confirmed. Both the appellants are ordered to be released forthwith from the jail if not required in any other case.