1. M.A. Shahid Siddiqui, J.--Zubair Ahmad appellant and Nasrullah alias Nasru (since acquitted) were tried by a learned Judge, Special Court, Gujranwala (constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975) in case F.I.R. No, 209, dated 1.6.1995 Police Station Noshera Virkan, District Gujranwala. The trial ended on 31.5.2001. The appellant was convicted under Section 302(b), read with Section 34, P.P.C. and sentenced to death. He was also directed to pay Rs, 1,00,000 as compensation to the legal heirs of the deceased.
2. 2.The occurrence took place on 1-6-1995 at about 9-00 a.m. on the bridge of Sem Nala in which Riasat Ali brother of Muhammad Yaqoob complainant, Sabir Hussain and Akhtar Ali alias Bao had been shot dead by the appellant and six others. As per F.I.R., Muhammad Yaqoob complainant accompanied by his brother Riasat Ali deceased, Sabir Hussain, Muhammad Ryas (P.W.4), Azam (given up P.W.) and Akhtar Ali alias Bao (deceased) went to Police Station Noshera Virkan on motorcycles to see the S.H.O. Riasat Ali and Sabir Hussain (deceased) went inside the police station and came out after a short while. They proceeded back towards their village. Sabir Hussain, Riasat Ali and Akhtar (deceased) were on one-motorcycle, while Muhammad Yaqoob complainant, Ilyas and Azam (P.Ws.) were on the other motorcycle. At about 9-00 a.m. when they reached the mettled road on the bridge of Sem Na'la they found a white car and a Yamaha motorcycle parked on the left side of the road and Saif Ullah armed with a kalashnikov, his brother Nasrullah armed with a .44 bore litre, Iftikhar Ahmad armed with a .7 mm rifle, Shahbaz armed with a .223 bore rifle, Afzal armed with a .12 bore, gun, Qayyum and Zubair Ahmad appellant armed with .222 bore rifles standing there. Allegedly Saif Ullah opened the fire with his kalashnikov hitting a burst to Sabir Hussain, who was driving the motorcycle. All the three fell on the ground-upon which the aforementioned seven accused resorted to indiscriminate firing with their respective weapons. As a result of which Riasat Ali, Sabir Hussain and Akhtar Hussain died at the spot. The accused then left the spot on their car and motorcycle and went towards Hyderi Chowk. Muhammad Yagoob complainant was on his way to the police station when he met Mazhar Hussain, S.-I. near Chungi and made his statement (Exh.P.G.). Muhammad Yaqoob, in his statement, implicated Muhammad Munsha son of Muhammad Din and Muhammad Riaz for having conspired for the offence. He further maintained that the occurrence was the result of previous enmity because of a murder.
3. 3.After recording the statement of Muhammad Yaqoob, Mazhar Hussain, S.-I. (P.W.19) rushed to the spot and completed the formalities. He prepared injury statements and inquest reports of the three deceased persons and collected blood-stained earth from the spot. He also seized as many as 67 crime-empties of different type of weapons besides a Motorcycle bearing Registration No, GAH- 1088 having marks of bullets on it. On 11.1.1996, he obtained the proclamations of Nasrullah and Zubair appellant and also the warrants of arrest which he entrusted to Muhammad Afzal, Constable for service. Muhammad Yaqoob, S.-I. (P.W.14) had arrested Muhammad Ashraf accused on 20-9-1995. He recovered a .222 bore rifle (P.18) at the instance of Muhammad Ashraf and then got transferred Abdul Qayyum accused from District Jail, Faisalabad to District Jail, Gujranwala. A .222 bore rifle was recovered by him on 3-10-1995. Asmat Ullah (P.W.11) had recovered a .222 bore rifle from the residential room of Zubair appellant on 20-7-1998. During the investigation of the case conducted by different Police Officers, Saif Ullah, who was the first to hit Sabir Hussain with his Kalashnikov and five others which included Iftikhar Ahmad, Shahbaz, Afzal, Muhammad Munsha and Muhammad Riaz were found innocent. Through a supplementary statement dated 3-6-1995 the complainant had implicated one Muhammad Ashraf son of Muhammad Din, caste Arain.
4. Accordingly the S.H.O. concerned, in his report under Section 173, Cr.P.C. arraigned the appellant and three others namely, Nasrullah alias Nasru, Muhammad Ashraf and Abdul Qayyum as accused.
5. 4.The learned trial Court, after going through the report under Section 173, Cr.P.C. formally charge- sheeted the appellant alongwith Nasrullah alias Nasru and Abdul Qayyum accused on 13-5-2000 under Section 302 read with Section 34, P.P.C. on three counts. They pleaded not guilty and claimed trial. The prosecution examined as many-as 20 witnesses in order to bring home the charge against the accused. Muhammad Yaqoob (P.W.3) and Muhammad Ilyas (P.W.4) furnished the ocular account of the occurrence. The medical evidence has been furnished by Dr. Zahid Pervaiz (P.W.2) and Dr. Muhammad Sarwar (P.W.15). Asmat Ullah, S.-I. (P.W.11) and Falak Sher (P.W.10) deposed about the recovery of .222 bore rifle (P 12) from the house of the appellant. There is another piece of evidence which shows that Zubair Ahmad appellant had become fugitive from law despite being issuance of proclamations (Exh.P.K. and Exh.P.L ) Mazhar Hussain, . S.-I. (P.W.19) and Muhammad Afzal, Constable (P.W.8) have deposed about the execution of the proclamation and the warrant of arrest. The learned trial Court, after taking into consideration the entire material brought on record, came to the conclusion that the prosecution had established its case against the appellant alone to the hilt. Accordingly the appellant was convicted and sentenced to death.
6. Hence, this appeal.
7. 5.Learned counsel for the appellant, while assailing the conviction and sentence, argued that the prosecution version was Sound to be false during the investigation of the case to the extent of not only Saif Ullah, the principal accused, who opened the fire and hit Sabir Hussain deceased but also to the extent of Iftikhar Ahmad, Shahbaz and Afzal accused, who, as per F.I.R., had participated in the occurrence alongwith the appellant, therefore, the statements of those very witnesses cannot be relied upon against the appellant as well. Learned counsel contended that the appellant had absolutely no motive whatsoever to participate in the occurrence and that his disappearance after occurrence was due to fear of unjustified arrest and 'humiliation.
8. 6.On the other hand, learned counsel for the State has supported the judgment mainly on the ground that the P.Ws. have specifically attributed a role to the appellant.
9. 7.We have made reappraisal of the entire evidence in the light of the arguments advanced from both the sides. The appellant was nominated by the complainant in the F.I.R. alongwith six others but no specific role was ascribed to him. We have noticed that the complainant had implicated as many, as seven accused which included Saif Ullah, his brother Nasrullah, Iftikhar Shahbaz and Afzal, who were all Jat by caste. Admittedly, during the investigation of the case the P.Ws. accepted the plea of innocence raised by these accused. It is surprising to note that the P.Ws. made another improvement during the investigation of the case . and implicated Muhammad Ashraf, who is also Arain by caste. Muhammad Yaqoob (P.W 3) and Muhammad Ilyas (P.W.4) are admittedly related to the deceased. Initially, they had implicated a large number of persons but during the investigation of the case, it transpired that they had not reported the matter truly. They have given a clean chit to all those, who are Jat by caste but have deposed only against those, who are not Jat by caste. Their testimony cannot be relied upon especially in a case involving capital punishment. The recovery of .222 bore rifle (P. 12), after a period of more than three years, is of no consequence, especially because it had never been sent to the Forensic Science Laboratory for comparison with the empties recovered from the spot. In the absence of the report of Forensic Science. Laboratory in this regard the recovery of rifle is held to be inconsequential. The complainant, in his examination-in-chief, deliberately omitted to mention the name of Nasrullah, the brother of Saif Ullah accused. During cross-examination, it has transpired that Riasat Ali deceased had enmity with other persons as well but the prosecution has not been able to show as to why Muhammad Zubair appellant participated in the occurrence. Lastly, the fugitiveness of the appellant alone is not sufficient to sustain the conviction.
8. As a sequel to the above discussion we are of the view that the prosecution had miserably failed to bring home the charge against the appellant. Consequently, we accept this appeal, set aside the impugned judgment dated 31.5.2001. The appellant is acquitted. He shall be set at liberty forthwith if not required in any other case.