' The appellant Walayat through the instant appeal has assailed his conviction and sentence recorded vide the judgment, dated 20-2-2002 by Mian Muhammad Ilyas, the learned Additional District and Sessions Judge/Judge, Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Hafizabad in case F.I.R. No,301, dated 24-7-1998 under sections 302/34/109, P.P.C. Registered at Police Station, Sukheke District Hafizabad.
2. His conviction and sentence is as follows:-- Under section 302(b), P.P.C.To imprisonment for life as Tazir with Compensation of Rs,1, 00,000 payable to the legal heirs of the deceased Khizar Hayat and in default thereof to further undergo six months' S.I.
He was also extended the benefit of section 382-B, Cr.P.C.
3. The detailed facts of the case are incorporated in the impugned judgment. The same may be read as part of this judgment. However, the facts briefly relevant for the disposal of the instant appeal are that the appellant along with two others namely Kiramat Ali and Arshad was tried under sections 302/34/109, P.P.C. In the afore-referred case. The accusations against him was that he while armed with .8 mm rifle along with Mokhee with .8 mm rifle and one Shahadat (absconding) with kalashnikov in furtherance of their common intention had committed the Qatl- e-Amd of Khizar Hayat, deceased by firing at him with their respective weapons. It was as a result of conspiracy hatchet up by Kiramat and Irshad.
' They pleaded not guilty.
4. The prosecution at their trial mainly relied upon the ocular testimony, medical evidence, motive, recovery of crime weapon and evidence regarding conspiracy.
5. The learned trial Court did not believe the ocular account, medical evidence and motive against him but his own version that he has made aerial firing at the complainant party when they had attacked at his house and the recovery of crime weapon .8 mm rifle (P.5) and live bullets (P.6/1-15) and magazine (P.7) from him.
6. It on the basis of such piece of evidence on record and the factum of his absconsion has observed that he has been found linked up with the charge of Qatl-e-Amd of the deceased and with the same convicted and sentenced him as mentioned above.
7. It has been argued on his behalf that the learned trial Court did not believe the ocular account rendered by the prosecution as well as motive set up by it against him and the medical evidence; that in such situation, it had to fall back on his plea in toto which even otherwise was very clear that in fact the complainant party had attacked his house and he in order to scare them off has made aerial firing and during the same has himself received the fire made by somebody and it was not in any admission of his guilt of the murder of the deceased and on this score alone his conviction and sentence is not liable to be sustained; that the evidence of recovery of crime weapon and live bullets from him could at best be used for corroboration to the ocular account which the learned trial Court itself did not believe fully, so such piece of evidence (recovery) could not be used against him and the learned trial Court's approach in using the same in his conviction and sentence was absolutely not in accord with the settled principle relevant in such-like matters; and that in such situation, his alleged absconsion could also not be used against him. He has requested that the appeal may be accepted and the impugned judgment of his conviction and sentence set aside and he may be acquitted of the charge.
8. As against the same, the learned counsel for the State has supported the impugned judgment saying that the learned trial Court was right in taking his own statement under section 342, Cr.P.C.
And the factum of recovery of crime weapon Rifle P.5 and live bullets (P.6/1-15) and magazine (P.7) to be sufficient evidence to base his conviction and sentence.
9. I have carefully considered the submissions made from both the sides with the help of available record.
10. As said above, that the prosecution in respect of the charge against him has relied upon the above-mentioned pieces of evidence and out of these ocular account, medical evidence, and motive have not been relied upon by the learned trial Court. It has only used his own statement recorded under section 342, Cr.P.C. And the evidence of recovery of above indicated. Crime weapon .8 mm rifle (P.5) and live bullets (P.6/1-15) and magazine (P.7) and the factum of his absconsion against him in his conviction and sentence. These according to it, have sufficiently connected him with the charge against him. So these were the main reasons with it in his conviction and sentence.
11. The contention raised on his behalf that when the learned trial Court did not believe the eye- witness account against him then it had to fall back on his own plea/version in toto and accept it but not to use the same against him to convict him is with force. Although he has admitted the happening of the incident but it was in some other way and not in the way it has been taken.
12. But before entering into discussion on the same, I would like to reproduce hereinbelow the plea of the appellant in his statement under section 342, Cr.P.C. He in reply to the question that why the case against him and why the P. Ws. Have deposed against him has stated as under:-- "I have been falsely involved in this case due to enmity. The real facts of the case are that prior to the occurrence Noor son of Sarang abducted Shehnaz, a sister of Arshad my co-accused who is Phuphizad of Karamat co-accused. A case of her abduction and Zina was registered against Noor and Khizar Hayat deceased and some others, Said Shehnaz Bibi was restored to her parents vide orders of High Court, Lahore. In the said case of abduction I helped the parents of Shehnaz, due to this grudge Noor son of Sarang developed enmity with me. Said Noor is a big landlord who again wanted to abduct said Shehnaz. He is a man of bad character and did not tolerate any person to help the parents of Shahnaz. On the day of occurrence when I was present in my house Noor son of Sarang along with his bodyguard Khizar Hayat and 20/30 other companions resorted to firing on my house. Some persons were known to me and their names were Mazhar Hussain armed with KK Aslam armed with .8 mm Khizar Hayat deceased armed with .222 bore rifle, Faisal, Abbas armed with .12 bore gun while the other persons were also 'armed with various type of fire-arms like .7 mm rifle etc. By the firing of the complainant party the bullet hit on the outer door of my house and also on the northern wall of my house, some fire shots also hit upon my Packa Mangers of the Haveli of Ahmed Khan situated near to my house. I felt myself and my family unsafe in my home due to the firing of complainant party I came near to peter engine of Shaukat Ghoraya. Complainant party fired at me I hid myself behind the delivery pipe of said peter engine. At that time I was armed with my licensed rifle and I tried to save myself and-fired in the air in rebuttal during the occurrence. I received fire shot injury at the hand of Mazhar Hussain. In fact. The complainant party was aggressor who was firing relentlessly indiscriminity recklessly in which Khizar Hayat deceased received a fire shot at the hand of his companions. I was brought to Sangla Hill Hospital by my relative and then to Allied Hospital Faisalabad. We got registered a case against complainant party with Police Station Sangla Hill under sections 324/148/149, P.P.C. During investigation of this case it was declared by all the I.Os. That the complainant party was in fact aggressive and had opened fire at me, at my house and this was my first version even before the police, which has been confirmed during investigation. I did not cause any injury to the deceased and it was not my intention to cause any injury to any person. I only fired in the air to create fear to the complainant party in order to save my life and that of my inmates and to prevent myself from the aggression of the complainant party. I have committed no offence."
13. The above position has clearly shown that he has simply pleaded that on the relevant day he was present in his house when Noor Muhammad son of Sarang along with 20/30 persons had resorted to indiscriminate firing on the same. The bullet had hit the northern wall there and also the Pacca Manger of Haveli of one Ahmad Khan, which is close to his house. He felt himself and his family unsafe due to the firing of those persons and hence in return had made firing on them with his rifle. He received fire shot at him by Mazhar Hussain and thus, the complainant party was aggressor and the deceased had received fire shot at the hands of his companions.
14. It has clearly shown that he did not admit that he had directly fired at the deceased. It according to him was made in the air.
15. He, therefore, in no way, could be said to have admitted the killing of the deceased due to firing at him by him.
16. Therefore, the learned trial Court could not use his statement in believing his guilt in the murder of the deceased. Although it has done so yet it was absolutely a perverse approach.
17. As regards the evidence of recovery of crime weapon, its magazine and the live bullets from him, the same could not be used against him in his conviction and the sentence, as there was no other incriminating evidence on record against him to use the same for its corroboration.
18. It is needless to mention here that the recovery of incriminating articles could only be used to corroborate the ocular evidence or any other incriminating circumstance in the evidence against him. The same alone itself could not be used to base his conviction.
19. Even otherwise, the evidentiary value of such evidence, if may be scrutinized, is nothing because the recovery of rifle P.5 and the live bullets and magazine mentioned above had taken place on 21- 44999 while the incident as per the evidence on record had taken place on 24-7-1998. It thus, was more than 8 months after the same. No sane person would keep with him crime weapon for such long time to be recovered by the police, whenever it may be so needed. So, this story of recovery of these arms from him after 8 months of the incident is hardly acceptable on the face of it. So on that count too, the evidence of recovery of these arms is not believable and could not be used against him as said above.
20. Now again I revert to the contention of the appellant's side that the ocular account furnished by the prosecution when was not believed by the learned trial Court then it had to fall back on his plea in toto. The same is tenable as his plea was in fact that the complainant party had initiated aggression and not at all that he had directly fired at the deceased. It means that he never admitted the happening of incident as has appeared in the eye-witness account. It according to him was absolutely in some different way. This actually was so as appears from his statement. He as per his showing had also brought cross-version against the complainant party. The learned trial Court, therefore, could not validly infer that he has admitted the occurrence as appeared in the prosecution story. It, therefore, has erred in holding that he had admitted the killing of the deceased by having made fire on him. This approach of the learned trial Court too was absolutely perverse.
21. In such circumstances, it when had not believed the ocular version of the prosecution, then it had to accept the appellant's above plea in toto.
22. Had it been the position that the learned trial Court had accepted his plea in toto, then he really deserved acquittal in the case and not at all conviction and sentence.
23. There when was no other incriminating evidence on the record against him, then mere his alleged absconsion, even if it had been so, could not be used as corroborative circumstance against him.
24. I therefore find that the learned trial Court has not acted in right manner or legal way in convicting and sentencing him in the above situation/position of the case. The impugned_ judgment of his conviction and sentence, therefore, is not liable to be sustained.
26. His appeal, therefore, is accepted, the impugned judgment of his conviction and sentence set aside and he is acquitted of the charge giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not wanted in any other case.