' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellants namely Muhammad Qaisar and Shamim Zia alias Muhammad Saleem alias Chheeman were tried in case F.I.R. No,300 of 2001, dated 22-5-2001 registered under sections 302/ 324/134, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 at Police Station Ghulam Muhammad Abad, Faisalabad by Special Judge, Anti-Terrorism Court, Faisalabad, who vide judgment dated 3-8-2002 convicted both the appellants under section 302(b)/34, P.P.C. And sentenced each of them to death. They were also directed to pay Rupees One lac as compensation to the legal heirs -of the deceased as required under section 544-A, Cr.P.C.
Or. In default whereof to undergo six months' S.I. Both the appellants were also convicted under section 7(a) of Anti-Terrorism Act, 1997 and sentenced each of them to death as well as to pay a fine of Rupees one lac or in default whereof to undergo S.I. For five years. Both the appellants were further convicted under section 324/34, P.P.C. On three counts i.e, for attempt to commit the murder of Muhammad Arshad (P.W.12), Muhammad Bashir P.W. 13 and Muhammad Rafiq (given up) and were sentenced to four years' R.I. Each and to pay a fine of Rs,20,000 each or 'in default whereof to further undergo one years S.I. Qaisar alias Billa appellant was also convicted under section 7(h) of the ibid Act for demanding and receiving of Jagga Tax (Bhatta) and sentenced to five years' R.I. As well as to pay a fine of Rs,20,000 or in default whereof to undergo one years' S.I.
2. Challenging their conviction and sentence both the appellants filed Criminal Appeal No,128-.1 of 2003 while the trial Court has made a reference (M.R. 78-T of 2002) seeking confirmation of death sentence awarded to the appellants. Both these matters are being disposed of together by this judgment.
3. This occurrence took place near the Qutab Chowk falling within the jurisdiction of Police Station Ghulam Muhammad Abad, Faisalabad and the matter was reported to the police by Zulfiqar Ali P.W.11.
4. The facts of the prosecution case as narrated in the F.I.R. Are that on 22-5-2001 at about 7-30 p.m. Complainant along with his brother Muhammad Arshad, Rafiq and Bashir was sitting and gossiping in front of the house of said Muhammad Arshad when all of a sudden Qaisar alias Billa armed with .12 bore gun (repeater), along with Shamim Zia alias Muhammad Saleem alias Chheeman and Shahid both armed with .30 bore pistol also came there while riding on motorcycle.
They were previously known to them. Appellant Qaisar alias Billa while raising Lalkara that they had come to teach a lesson to Muhammad Arshad P.W.12 for not paying the Jagga tax (Bhatta), fired at Muhammad Shafiq hitting him on the right side of the chest. The second fire made by him hit Muhammad Shafiq on the right flank and the third fire hit Muhammad Shafiq on the upper arm.
Thereafter Shamim Zia alias Muhammad Saleem fired from his pistol which hit Muhammad Arshad on the left shin. Then Qaisar alias Billa once again fired which hit Muhammad Arshad on the right buttock. Shamim Zia alias Muhammad Saleem once again repeated fire which hit on left shoulder of Muhammad Rafiq. Allegedly, Shahid accused also fired from his .30 bore pistol which hit Bashir on the left thigh. On receiving injuries all the said injured person fell down and the accused fled away 'from the place of occurrence. The injured were removed to the hospital but Muhammad Shafiq died on the way whereas the rest of the injured witnesses were admitted in the hospital.
' The motive behind the occurrence as narrated in the F.I.R. Was that prior to the occurrence Qaisar alias Billa had demanded Rs,10,000 as Jagga Tax (Bhatta) from Muhammad Arshad in the presence of deceased who declined to make the payment and even snatched the weapon and moorcycie from Qaisar appellant and fled away from the place of occurrence. Statedly in order to wreack the vegeances Qaisar alias Billa appellant along with other co-accused in furtherance of their common intention had committed the murder of Muhammad Shafiq and caused injuries to rest of the witnesses and that their act had spread terror in the area.
' The police on coming to know about the said occurrence reached at emergency ward, Allied Hospital, Faisalabad where complainant made statement at 8-50 p.m. Before Ali Asghar S.-I. P.W:16 and formal F.I.R. Was registered at police station at 9-25 p.m. The agency during the investigation of this case also collected four empties of .30 bore pistol from the spot. During the investigation statedly the whereabout of the appellants were not knows, thus the Investigating Officer got issued their proclamation and ultimately arrested Qaisar on 12-8-2001 who was already under arrest in another case F.I.R. No,159 of 2001 registered at Police Station Kotwali. Statedly during the investigation of the said case the Investigation Agency had already recovered crime weapon at his instance. The record of this case also reveals that on the next day of occurrence on the basis of supplementary statement of the complainant, the name of 'Shahid' was deleted and one Muhammad Younis was inducted in this case.
5. After complying with the legal formalities challan in this case was submitted before the trial Court where prosecution produced sixteen witnesses including Zulfiqar Ali P.W.11, Muhammad Arshad P.W.12 and Muhammad Bashir P.W.13 the eye-witnesses of the occurrence as well as Dr. Naeem Ullah Khan P.W.14 who medically examined the injured witnesses and Dr. Arshad Masood P.W.15 who conducted the post-mortem examination of the dead body of Shafiq deceased.
' The trial Court also examined Muhammad Nawaz, S.-I. As Court witnesses who deposed about the recovery of .12 bore gun P.4 at the instance of Qaisar alias Billa appellant. Both the appellants while making statement under section 342, Cr.P.C. And answering to the question, why this case against you and why the P.Ws. Made statement to involve you? Made the same reply which read as under:- - "The complainant Zulfiqar Ali has already registered a Case No,478/97 against the accused family and other P.W. Arshad is also the witness in this case against us. Zulfiqar complainant deals in the purchase of prize bonds. The police raided him and his shop but the matter was then diluted some how Zulfiqar suspected that behind this raid I informed the police and as such he got me booked in this case fictitiously. I had no enmity with Shafique whatsoever it was the talk of the area that deceased Shafiq had illicit connection with the wife of Arshad who himself killed Shafiq and made me scapegoat in this case. There were also cross-firing between Shafique and his friend and Arshad. The P.Ws. Are closely related inter se and have made false statement against me. Ali Asghar investigating the case dishonestly even he was suspended."
' None of the appellants made any statement under section 340(2), Cr.P.C. However, produced Ghulam Abbas Aslam D.W.1 and Muhammad Shehzad D.W.2 in support of their defence plea. The crux of the statements of defence witnesses is that on the day of occurrence Muhammad Arshad along with his brother Nadeem on one side and Shafiq along with an unknown person on the other side were firing at each other. Statedly the fire made by Muhammad Arshad hit Shafiq on the chest whereas the fire made by Nadeem hit Shafiq on the right flank and that the appellant were not present at the time of occurrence.
6. Trial Court after evaluating the evidence available on record, vide judgment dated 3-8-2002 convicted and sentenced the appellants as narrated earlier.
7. Learned counsel for the appellants in support of this appeal submitted that both the appellants were not present at the spot at the relevant time and they were involved in this case because of their previous enmity with the complainant party. While reiterating the defence plea as narrated by the defence witnesses learned counsel argued that in fact cross-firing was made between Muhammad Arshad along with his brother, Nadeem on one side and Shafiq and unknown person on the other side and during the said occurrence Muhammad Shafiq received injuries by the fire made by Muhammad Arshad and thereafter while concocting a false story had involved the appellant in this case. Learned counsel further submitted that the F.I.R. Was got registered after consultation and deliberation and in support of its case prosecution had relied upon the evidence of closely related eye-witnesses whereas this occurrence took place near the inhabited house and independent. Witnesses were available but the same were deliberately withheld by the prosecution. Argued that according to the prosecution's own case the appellant had the grudge against Arshad P.W.12 but at the time of occurrence the target of the appellant was Muhammad Shafiq and that this fact itself is sufficient to doubt the credibility of the prosecution case. It was further argued that the medical evidence contradicts the ocular account and thus it could easily be said that whatsoever had been stated by the witnesses was not the gospel truth. Learned counsel further argued that Dr. Arshad Masood P. W.15 had conducted post-mortem examination on the dead body of a person aged about 26 years but according to Anwar-ul-Haq P.W.5 at the post-mortem examination he had identified the dead body of a young boy aged 13/14 years. In the light of these facts it was argued that prosecution had failed to establish that the post-mortem examination conducted by Dr. Arshad Masood P.W.15 was that of deceased namely Shafiq. Also argued that from the spot investigating agency collected four empties of pistol but the pistol recovered at the instance of Shamim Zia alias Muhammad Saleem was never sent to the Forensic Science Laboratory for comparison and that the recovery of crime weapon at the instance of said appellant would be of no value. That the eye-witnesses were not trustworthy because of their enmity with the appellant. It was submitted that at the time of lodging the F.I.R. Stand of the prosecution was that the appellants along with one Shahid had participated in the occurrence but later on while changing its stand one Muhammad Younis was introduced as one of the assailants who had participated in the occurrence along with other accused. Shahid was never put to trial whereas said Muhammad Younis was tried in a separate trial in which prosecution witnesses had not uttered a single word against him and he was acquitted. Learned counsel in support of her arguments also relied on 2005 SCM R 1128 and 2005 SCMR 154. On the contrary learned counsel for the State while supporting the impugned judgment, vehemently opposed the arguments raised by the learned counsel for the appellants.
8. With the able assistance of the learned counsel for the parties, we have minutely gone through the record of this case.
' Muhammad Shafiq, was done to death on 22-5-2001 at about 7-30 p.m. Near Qutub Chowk Faisalabad outside the house of Arshad P.W.12. During this occurrence Arshad P.W.12 himself along with Bashir P.W.13 and Rafiq (given up P.W.) received fire-arm injuries. The matter was reported to the police at 8-50 and formal F.I.R. Was registered at 9-25 p.m. At the police station. Before the trial Court Arshad P.W.12, Bashir P.W.13 along with complainant of this case namely Zulfiqar P.W.11 while supporting the prosecution case have deposed that at the relevant time Qaisar appellant armed with gun along with Shamim Zia appellant armed with .30 bore pistol and his co-accused had made indiscriminate firing as a result of which Muhammad Shafiq and the witnesses received injuries. We have observed that in the F.I.R. The stand of the prosecution was that one Shahid had also participated in the occurrence along with the appellant but later on while changing the stand one Muhammad Younis was inducted instead of Shahid who allegedly had caused fire-arm injury to Bashir P.W.13. We have also observed that at the time of occurrence both the injured witnesses not know the assailants especially Muhammad Saleem appellant and they came to know about his identity, upon the information which was conveyed to them by the inmates of the area. Arshad P.W.12 during the cross-examination had admitted that before the occurrence he had not heard or seen Muhammad Saleem nor he ever demanded any Bhatta from him and that the Mohallah fellows told him about the name of Muhammad Saleem. This witness was not in a position to disclose the name of Mohallandars (residents of the area) who had disclosed the identity of Muhammad Saleem to him. Similarly according to Bashir P.W.13 at the time of occurrence there erupted an uproar about the names of these accused and he identified the accused in Court. In this eventuality to rule out the possibility of the false involvement of Muhammad Saleem appellant the identification parade qua Muhammad Saleem appellant was very essential. The fact that all the accused/assailants were not known even to the complainant also stands established from the fact that while lodging the F.I.R. The (complainant) named one Shahid as the third assailant but on the next day he made a supplementary statement replacing Shahid with one Muhammad Younis.
Similarly Muhammad Arshad P.W.12 took the stand that third person along with the appellants were unknown. We have also observed that according to the prosecution case. Qaisar appellant who was armed with .12 bore gun had made several fires at the spot and one of the fire hit Arshad on the right buttock. The medical evidence to this extent corroborates the ocular account. This firing was made from a distance of 22 feet and in the scenarios of occurrence the possibility that one stray pellet from the firing made by Qaisar appellant had hit the witnesses on his leg as well while leaving a grazing wound, as it is apparent from the medical report prepared by Dr. Naeem Ullah Khan P.W.14, could not be ruled out. We have also observed that during the investigation four empties of .30 bore pistol were recovered from the spot and according to the prosecution case appellant Saleem also led to the recovery of pistol during the investigation but admittedly these articles were never sent to the office of Forensic Science Laboratory for comparison. The possibility that the investigating agency deliberately never obtained the said report only to cover up the lacunae of the case could not be ruled out. Allegedly, Muhammad Saleem appellant had also caused fire-arm injury to another prosecution witness namely Muhammad Rafiq but this witness was never produced before the trial Court in support of the prosecution case. In our view said lacunae are sufficient to doubt the credibility of the prosecution case qua the involvement of Muhammad Saleem alias Shamim Zia Chheeman appellant.
' As far Qaisar appellant we have observed that his participation stands established from the statement of all the said eye-witnesses whose presence at the spot is free of doubt. The previous enmity of this appellant is also established from the data available on record. We have also observed that he is related to the complainant party. Muhammad Arshad P.W.12 while answering to the question in this regard at the fag end of the cross-examination has admitted that Qaisar appellant is remotely related to him and thus there was no question of mistaken identity qua this appellant. The ocular account to his extent also finds support from the medical evidence. The location, duration and nature of injuries as stated by the eye-witnesses finds support from the medical report prepared by Dr. Naeem Ullah Khan P.W.14 and Dr. Arshad Masood P.W.15.
' The defence plea of the appellant before the trial Court was that in fact there was cross-firing in- between the deceased on one side and Muhammad Arshad P.W.12 along with his brother Nadeem on the other side and the fire made by Muhammad Arshad P.W.12 had hit Muhammad Shafiq as a result of which he died but we have observed that both the defence witnesses namely Ghulam Abbas Aslam D.W.1 and Muhammad Shahzad D.W.2 for the first time had deposed in this regard before the trial Court. They never bothered to come forward in support of the defence plea during the investigation. The statements of these mitnesses are silent with regard to the injuries on the person of injured witnesses who also had received injuries during this occurrence. Both of them though claimed to be the residents of the same area but there is no data available on record in support of the said stand. Admittedly Ghulam Abbas D.W.1 was a shopkeeper, his shop was about 3/4 furlongs away from the place of occurrence and he used to sit at his shop till 6-00 p.m.
Statedly, Muhammad Shahzad D.W.2 was also a shopkeeper and his shop was 50/60 yards away from the spot but the site-plan is absolutely silent about the existence of his shop near the place of occurrence. Similarly, during the cross-examination learned counsel for the defence never put any question to the draftsman about the existence of the residential houses of the said witnesses near the place of occurrence. The defence plea raised before the trial Court is nothing but an afterthought and not trustworthy.
' The result of the above discussion is that case against Shamim Zia alias Muhammad Saleem alias Chheeman appellant is full of doubts and he is entitled to get the benefit of the same. Accordingly, the instant appeal to his extent is accepted, his conviction and sentence is set aside and he stands acquitted of the charge. He shall be released forthwith if not required in any other case. His death is not confirmed and murder reference to his extent is answered in the negative.
' As far Qaisar appellant, we see no force in the instant, appeal, accordingly, the instant appeal to his extent stands dismissed.
' Death sentence awarded to Qaisar alias Billa (appellant) is confirmed and the murder reference to his extent in answered in the affirmative.