' CH. IFTIKHAR HUSSAIN, J.--Ramzan alias Jani, Faisal alias Faisi, Shahbaz alias Shahbazi and Muhammad Idrees alias Idreesi were tried under section 302 read with section 34, P.P.C. And section 7 of Anti-Terrorism Act, 1997 on three counts and section 392, P.P.C. In case F.I.R. No,232 dated 28-6-2000 registered with Police Station Factory Area, Sheikhupura for on the night between 25/26-3-2000 at about 2-00 a.m. At Rana Bhatti Bus Stop within the area of the aforesaid police station, in furtherance of their common intention committing the. Qatl-e-Amd of deceased Muhammad Amin son of Inayat, Muhammad Amin son of Ghulam Muhammad and Habibullah and the Dacoity by taking away the motorcycle of deceased Habibullah and the licensed pistol of Amin son of Inayat.
2. On the conclusion of their trial Ramzan alias Jani, Faisal alias Faisi and Shahbaz alias Shahbazi were found guilty of the said charge, while not Muhammad Idrees alias Idreesi.
3. Ramzan alias Jani, Faisal alias Faisi and Shahbaz alias Shahbazi vide the judgment rendered on 10-4-2003, by Ch. Ghulam Rasool, learned Special Judge, Anti-Terrorism Court No,IV, Lahore were convicted and sentenced as follows:--
(i) 302(b), P.P.C. Read with sections 34 & 7(a) of the Anti-Terrorism Act on three counts for the Qatl- e-Amd of the above-named deceased persons and sentenced to death subject to confirmation by this Court and to pay Rs,1,00,00 as compensation each to the legal heirs of each of the deceased persons.
(ii) Under section 392 read with section 34, P.P.C. For committing the robbery and sentenced to seven years rigorous imprisonment each and to fine Rs,20,000 each and in default thereof to further suffer six months rigorous imprisonment each. They however, were extended the benefit of section 382B, Cr.P.C.
' Muhammad Idrees alias Idreesi was acquitted of the charge.
4. Ramzan alias Jani, Faisal alias Faisi and Shahbaz alias Shahbazi through their above mentioned separate Appeals bearing No,556 of 2003, No,659 of 2003 and No,662 of 2003, respectively have brought the impugned judgment of their conviction and sentence under attack.
5. The learned trial Court has submitted Murder Reference mentioned above (No,14-T of 2003) for confirmation of their sentences of death.
6. As all the four matters have arisen out of one and the same case, hence these are being disposed of by this single judgment.
7. Briefly the facts relevant for the disposal of these matters are that the above said case has been registered on the written application Exh. PC of complainant Muhammad Akbar (P.W.11). The same is to the effect that on the night between 25/26-3-2000, he along with Yasin son of Inayat and Muhammad Sharif son of Charagh went to his relative Gulzar son of Hakim resident of Rana Bhatti Police Station Factory Area for some work. At about 12-30 night Muhammad Amin son of Inayat, Muhammad Amin, his brother and Habib son of Ibrahim on a motorcycle came to them in the house of Gulzar. They said to them that they are going to Al-Saeed Chowk for some work and they should stay there till their return and they will go to the house together. He after waiting for them for an hour came out of the house of Gulzar along with Yasin and Muhammad Sharif. They started waiting for them outside his house. After some time a motorcycle reached Rana Bhatti Sotp from towards Kot Noor Shah. Amin his brother, Muhammad Amin son of Inayat and Habib were riding on that motorcycle. In their view three armed persons came there from the southern side of the road and they stopped all three of them. They started snatching the motorcycle from them. Amin and others grappled with them, who started firing on them as a result whereof they all three were injured and fell down. The accused took the motorcycle of Habibullah and the licensed pistol of Amin and went away after firing. They did not go near them out of fear. They saw their faces in the light at Rana Bhatti Stop and also heard their voices. They after fleeing away of the accused came to the injured persons. Out of them Muhammad Amin son of Inayat and his brother Muhammad Amin had expired. Habib was seriously wounded, who was carried to the hospital at Lahore through Pickup.
8. The appellants and their acquitted co-accused after due investigation were challaned to the Court being involved in the matter.
9. The learned trial Court formally charged them under the abovementioned offences. They did not plead guilty
10. The prosecution at their trial examined it's 29 witnesses in all. They were:-- "Manzoor-ul-Haq (P.W.1), Liaqat Ali (P.W.2), Ijaz Ahmad (P.W.3), Muhammad Ismail (P.W.4), Riaz Ahmad Khan (P.W.5), Muhammad Saleem, S.-I. (P.W.6), Dr. Shaukat Hayat (P.W.7), Muhammad Rafi (P.W.8), Muhammad Ashraf (P.W.9), Muhammad Sharif (P.W . 10), Muhammad Akbar (P.W.11), Dr. Nematullah (P.W.12), Muhammad Yasin (P.W.13), Muhammad Shafique (P. W 14), Muhammad Hanif (P.W.15), Muhammad Din (P. W. 16), Gulzar Ahmad (P. W.17), Muhammad Yasin (P.W.18), Dr. Abdul Jabbar Khan. (P.W .19), Shabir Hussain (P.W.20), Muhammad Ilyas Gill (P.W.21), Muhammad Athar Masood (P.W.22), Muhammad Hanif (P.W.23), Sabir Ali Bhutta, Inspector (P.W.24), Muzaffar Akram, S.-I. (P.W.25), Malik Safdar Ali (P.W.26), Syed Abdul Rahim (P.W.27), Ali Ashraf, S.-I. (P.W.28) and Abdul Hameed, S.-I. ( P. W . 29).
11. The report of Chemical Examiner Exh.PZZ and that of the Serologist Exh.PCCC and of Forensic Laboratory Exh.PAAA, PBBB were tendered in the prosecution evidence.
12. The appellants and their acquitted co-accused denied the allegation against them in the prosecution evidence. They pleaded false implication in the case at the instance of the local police due to enmity.
13. It may be mentioned here that appellant Ramzan alias Jani has specifically stated that his father had filed Petition No,1134-H of 1998 against the S.H.O. Concerned and this Court has disposed of the same. They except Ramzan alias Jani and Muhammad Idrees alias Idreesi have produced Taj Din in their defence (D.W.1). They all, however, did not opt to depose on oath in disproof of the allegation appearing against them in the prosecution evidence.
14. Muhammad Ashraf, S.-I. Was examined as (C.W.1).
15. The learned trial Court after hearing the parties came to the conclusion that the prosecution stood succeeded in proving the charge against the three appellants beyond any shadow of reasonable doubt. It so, has convicted and sentenced them as mentioned above.
16. After hearing the learned counsel for the parties and perusing the record, we have found that the prosecution in this case has mainly relied upon it's ocular testimony, medical evidence, identification parade, the identity of the three appellants in the Court and the recovery of the crime-weapons from them and some articles belonging to the deceased persons.
17. The ocular account of the prosecution has been unfolded by complainant Malik Muhammad Akbar (P.W.11) and Muhammad Yasin (P.W.13). It is the plea of the appellant's side that they in fact did not see the occurrence and they are the made up witnesses being the close relatives of the deceased persons and so were not reliable. As against the same, the stance of the prosecution side is that they were present at the spot and had seen the occurrence; and that they had absolutely no enmity with the appellants to involve them falsely and so were worthy of belief and have rightly been believed. We proceed to analyze these contentions in the light of the evidence on the record.
18. The F.I.R. (Exh.PC) has been lodged by complainant Muhammad Akbar. He is the real brother of one of the deceased persons namely Muhammad Amin son of Ghulam Muhammad. He did not mention any body's name in the F.I.R. As the accused. He even did not give the complete description of the assailants in the same. He simply has mentioned that three armed persons came from the southern side of the road and they stopped the three deceased persons and started snatching the motorcycle from them and on their resistance started firing on them.
19. The fact remains that they did not belong to the place of occurrence. They both were the residents of village Burge Atari. The same is at a distance of about one kilometer from their abode.
According to Malik Muhammad Akbar, the house of his relative Gulzar is at a distance of one Kilometer from his house. The venue of the occurrence is near the house of Gulzar. Yasin P.W. Is also the resident of a place at a similar distance from the place of occurrence. They, thus both were the chance witnesses. They have explained that they along with Sharif had gone to the house of Gulzar.
Muhammad Akbar in F.I.R. Exh.PC did not specifically mention that for what purpose they had gone to the house of Gulzar. He in his Examination-inChief also did not state the purpose of their visit to the house of Gulzar. He in the same has simply mentioned that they had gone to see him. However, P.W. Muhammad Yasin in the Cross-Examination has stated that they had gone to the house of Gulzar as deceased Amin son of Ghulam Muhammad had to marry his son with his daughter. The said deceased, if had to marry his son with the daughter of that person but why the other two deceased and these eye-witnesses and their companion Sharif had gone there is not understandable. So, the explanation offered by him for their having gone there is not convincing. It is also astonishing to note that if one deceased had any such purpose to go to Gulzar, then why he did not accompany the two eye-witnesses and their companion Sharif there for that purpose. The coming of deceased Amin son of Ghulam Muhammad and the other two deceased persons there separately and suddenly is something very strange. It, thus is not appealing- to the reason that they in fact had gone there for that purpose. P.W. Yasin is the brother of deceased Muhammad Amin son of Inayat, while as said above that Muhammad Akbar is the brother of deceased Muhammad Amin son of Ghulam Muhammad. So, we are not convinced that they had any occasion to be A present at the spot at the relevant time. It has appeared that they perhaps had reached the spot after the incident and have been introduced as the witnesses to render account of the occurrence. However, strong independent corroboration is required to their testimony for belief. We will discuss such aspect of the matter at some later stage.
20. It is also interesting to note that in F.I.R. Exh.PC, the complainant has mentioned three persons as the assailants/ Dacoits. He but later on has changed his stance and mentioned four persons in that regard.
21. He is middle pass. He so is not an illiterate person. It is, thus not believable that if he was present at the spot and had seen the occurrence with his own eyes, he did not note the exact number of the assailants. It is further interesting to note that he has stated that a boy had written Exh.PC and wrote the names of three persons in that regard while he had asked him to write the name of four accused . He, if had told the number of the accused as four to the boy then why the boy had not written so and instead mentioned the number as three is not understandable. He also could not tell that who was that boy who had written Exh.PC. It again is surprising that he entrusted the task of writing of his application to a boy, who was not at all known to him. All this story of him is something suspicious. This has shaken our belief that it was actually so. This also shows that he perhaps had not seen the occurrence with his own eyes and that is why he was not sure about the exact number of the accused. It is further interesting to note in this context that he has mentioned that the Thanedar had read over application Exh.PC to him and he had objected that the number of the accused was four and thereupon the Thanedar had told him that he will mention the similar number of accused in F.I.R. But still in F.I.R. Exh.PC, the number of accused remained the three and not four. It is also admitted position that Exh.PC bore his signature. He was a literate person. He at the time of putting his signature at Exh.PC could know that the correct number of the accused had not been mentioned in the same and he could get it corrected but it was not done so This has strengthened our belief that he was not present at the spot and had not seen the occurrence. Had he seen the occurrence, he would have mentioned the exact number of the accused or at least their description, if they were not known to him. Similar is the position of P.W. Yasin. All this story, thus appears to be suspicious. They appear to have become witnesses just due to their relationship with the two deceased persons.
22. It was a night occurrence. It is the stance of these eye-witnesses that they had identified the assailants in the light at Rana Bhatti Stop. It is also their stance that it was a moonlight night and they had identified the assailants in the light of the bulb and the moonlight. It is admitted position on the record that no bulb was taken into possession by the I.O. To show that any bulb in fact was lit at the spot. The learned counsel for the parties have submitted before us that it was 18/19th of Zil Hajj on the day of occurrence. According to Muhammad Akbar, the occurrence had been completed within four to five minutes. According to him, the distance between the bulb and the place of occurrence was 45 feet. Muhammad Yasin has stated that electric light was at a distance of about 10/12 feet from him. He has stated that he was standing at a distance of about 60 feet from the spot at the time of occurrence. In this context, it would also be quite relevant to mention that Sabir Ali Bhutta, I/I.O. (P.W.24) has stated in the cross-examination that electric bulb was about 90 feet away from the place of occurrence and no other source of light was there. In such circumstances, when the bulb light was at such distance from the place of occurrence and the eye-witnesses also and the date of the lunar month was as given above, it could be very difficult to identify the assailants correctly.
23. It may be mentioned here that though no background of enmity between the eye-witnesses and the appellants has been found to be there but mere absence of enmity does not stamp a witness to be truthful unless his evidence may be ringing true or with intrinsic worth. We have not the least hesitation in saying that for the above reasons the evidence of the eye witnesses is devoid of such worth. They, therefore, were not reliable witnesses.
24. Dr. Shaukat Hayat (P.W.7) has conducted the autopsy on the dead body of deceased Habibullah. Dr. Naeemullah (P.W.12) has conducted autopsy on the dead bodies of deceased Muhammad Amin son of Inayat and Muhammad Amin son of Ghulam Muhammad. Their evidence though has proved that the death of these deceased persons had occurred due to the fire-arm injuries sustained by them on their persons and these were of the same duration as is in the eye- witnesses account, this but in no way connects the appellants with the death of the deceased persons. The medical evidence, therefore, is not of much consequence in this case. This has not been of any supportive value to the eye-witnesses account.
25. As regards the identification of the appellants in the test identification parade, the evidence regarding the same has been furnished by the two eye-witnesses besides the two officers, who have supervised the same.
26. Muhammad Ilyas Gill (P.W.21) had conducted the identification parade of Muhammad Ramzan alias Jani and Muhammad Shahbaz alias Shahbazi. According to him, the above named two eye- witnesses and Muhammad Sharif had identified them correctly. Muhammad Athar Masood (P.W.22) has supervised the identification parade of appellant Faisal alias Faisi. According to him, the two eyewitnesses and Muhammad Sharif had correctly picked him up in the same. The evidence of the identification parade but is of no value for the reason that the eyewitnesses and said Muhammad Sharif did not pick up the three appellants by their role in the crime. In this regard reference is made to the cases of Khadim Hussain v. The State (1985 SCM R 721) and Masood Ahmad and 3 others v. The State and another (1995 SCM R 127). The evidence of test identification parade, therefore, was required to be kept out of consideration.
27. As regards the identity of the appellants by the two eye-witnesses in the trial Court, the same also can not be attached much weight to for the reason that the evidence of (P.W.11) and (P.W.13) was recorded much after the arrest of the appellants in the case and their appearance before the learned trial Court and prior to that much events had taken place. It, thus was quite possible that these witnesses had seen them prior to the recording of their evidence in the Court. It is also worth mentioning here that the appellants before their identification by these eye-witnesses at the test identification parade had stated before the respective Magistrates that they were shown to the witnesses many a times prior to the same. Such identification of the appellants by the eye- witnesses, therefore, was required to be kept out of consideration.
As regards the recovery of carbine P.21 from appellant Shahbaz alias Shahbazi and .12 bore gun P.29 from appellant Ramzan alias Jani and pistol P.26 from appellant Faisal alias Faisi, the same was of no consequence in this case as no matching report was available to the prosecution to say that these weapons were in fact used in the commission of the crime. The report Exh.PAAA of the Forensic Science Laboratory is simply to the effect that the shot pistol and double barrel shot gun of .12 bore were in working order. Similar is the position of report of Exh.PBBB of the said laboratory in respect of .30 bore pistol. The recovery of these weapons, therefore, was inconsequential.
28. As regards the recovery of license P.8 of deceased Amin son of Inayat and his National Identity Card P.6 from appellant Ramzan alias Jani, the same is not worth any consideration because it is not believable that the said appellant had kept these articles with him safely in his house while these were of no use to him at all. This seems mere a fabrication on the part of the police just to strengthen the prosecution case. Similar is the position of the recovery of an amount of Rs.480 and the copy P.14 of N.I.0 of deceased Muhammad Amin son of Ghulam Muhammad from appellant Shahbaz alias Shahbazi. As regards the recovery of motorcycle P.22 and pistol P.26 from appellant Faisal alias Faisi, the same was also of no value as it has not been shown that these articles in fact belonged to the J deceased persons. No proof of their ownership in respect of the same has been brought on the record. The same, therefore, was required to be kept out of consideration.
29. We, thus from the above discussion are convinced that the prosecution has not been able to prove the charge against the three appellants as well beyond any shadow of reasonable doubt. They too, therefore, were entitled to acquittal.
30. We, therefore, accept their abovementioned respective appeals and set aside the impugned judgment to the extent of their conviction and sentence and acquit them of the charge giving them the benefit of doubt. They are in custody. They be set at liberty forthwith, if not required in any other case. The Murder Reference mentioned above is answered in the negative. The death sentences awarded to them are not confirmed.