' SARDAR MUHAMMAD ASLAM, J.---Muhammad Riaz 26/27, Zulifqar Ali 24/25, both real brothers, and their father Muhammad Suleman 80/85, Liaqat Ali 47/48, and Muhammad Ali, 78, real brothers, Muhammad Yousaf 78/79, and Muhammad Ashraf 35/36, were sent up for trial to the Court of Judge, Anti-Terrorism Court, Faisalabad in case F.I.R. No, 490, dated 24-7-2005 registered under sections 302/324/ 452/337-H (2)/F (2)/F (3)/148/149/109, P.P.C., Article 151 Police Order, 2002 and section 7 Anti-Terrorism Act, 1997 by Police Station, Satiana District Faisalabad.
2. Short background of the prosecution case narrated by Manzoor Ahmad, complainant, a student of 4th year, is that on 24-7-2005, he along with other inmates of the house, Zahoor Ahmad, MuhammadHanif, Muhammad Abbas (deceased), Mst. Parveen Bibi, Zahida Bibi and Abida Bibi all the three female deceased and Asia Bibi, Khalida Bibi and Sabiran Bibi, all the three injured P.Ws.
Were sleeping in the courtyard of residential house of Ahmad Sher (deceased). Muhammad Suleman and Muhammad Yousaf armed with .12 bore guns, Muhammad Ali armed with .303 bore gun, rest all armed with .244 bore rifles except Mumtaz (absconding accused) armed with Klashnikov, wearing police uniform were found present in the courtyard, when awoke on account of noise. They directed all the inmates of the house to stand in line. Mumtaz accused fired burst with his klashnikov while rest of the accused, too, fired with their respective weapons resulting into death of Mst. Parveen Bibi. Mst. Zahida "Bibi, Mst. Abida Bibi, Abbas, and Ahmad Sher while Asia Bibi, Khalida Bibi and Sabiran Bibi were injured. Time of occurrence was 2-30 a.m. And report was lodged to S.-I./In charge Chowki Rodala Road at 330 a.m. Night-time. Motive for the occurrence was enmity on account of murder of Muhammad Nawaz, real brother of Mumtaz whereby two persons on complainant's side were awarded life imprisonment while Abbas and Ahmad Sher were acquitted of the charge.
3. The police rushed to the spot immediately thereafter, sent the dead bodies to the mortuary and got injured medically examined. The Investigating Officer conducted site inspection, recovered 2 crime empties of .12 bore gun and 26 crime empties of Klashnikov.Supplementary statement of complainant was recorded. He changed his first version to the extent of appellants Muhammad Riaz and Zulifqar Ali stating that two of assailants had their resemblance. Investigating Officer effected recovery of rifle .244 bore and gun .12 bore from Muhammad Ashraf and Muhammad Suleman, appellants respectively. He concluded the investigation, finding appellants' non- presence at the time of occurrence.
4. The prosecution examined 19 witnesses. The appellants' statements under section 342, Cr.P.C.
Were recorded. They declined to either appear themselves as their own witness under section 340(2), Cr.P.C. Or produce any defence evidence. The learned Judge, Anti-Terrorism Court convicted and sentenced them, detail of which is given below:-- Name of accused Under section Sentence Muhammad Riaz & Zulifqar Ali302/109, P.P.C.,120-B, P.P.C., 7-ATA, 1997Sentenced to death on five counts and fine of Rs.5/-lac each on five counts, in default of payment of line to undergo 5 years' S.I. each on five counts. They were also fiable to pay compensation of Rs.5/- lac each on 5 counts to the legal heirs of deceased persons as required under section 544-A, Cr.P.C. and in default to further undergo for 6 months S.I. each on 5 counts.
Liaqat Ali, Muhammad Ali, Muhammad Ashraf302-B, P.P,C. & 7 ATA, 1997Sentenced to death on five counts and fine of Rs.5/-Lac each on 5 counts in de Fault thereof to undergo 5 years' S.I, on five counts. They were also liable to pay compensation of Rs.5/- lac Pach on five counts to the legal heirs of the deceased persons as .required under section 544-A, Cr.P.C. in default thereof to further undergo for 6 months' S.I. each on five counts.
Muhammad Yousaf, Muhammad Suleman302-B, P.P.C. 7 ATA, 1997. Sentenced to life imprisonment on five counts and tine of Rs.5- Lac each on five counts, in default thereof to undergo S.I. for 5 years each on tine counts. They were also liable to pay compensation of Rs.5- lac each on 5 counts to the legal heirs of the deceased persons as required under section 544-A, Cr.P.C. in default thereof to further undergo S.I. for 6 months each on five counts.
Muhammad Ali, Muhammad Yousaf, Muhammad Suleman324. P.P.C. ATA, 1997337- L(ii)Sentenced to 10 years' R.I. each and fine of Rs.50,000 each in default thereof to undergo S.-I. for 2 years. Muhammad Ali, accused is further sentenced to 2 years' RI, for causing injuries to Mst. Sabha Bibi P.W.
Muhammad Yousaf is further .sentenced to 3 years' R.I, as Ta'zir and with Daman of Rs.20,000 for causing injuries to Mst. Asiya Bibi.
Muhammad Suleman is further sentenced to 1 year as Tazir and with Daman of Rs.10,000 for causing injuries to Mst.
Khalida P.W.
Liaqat Ali, M. Ali, M. Ashraf, M. Yousaf, M, Suleman.148/149 P.P.C. Sentenced to 3 years' R.I.
Liaqat Ali, M. Ali, Ashraf, M.
Yousaf, M, Suleman452, P.P.C. Sentenced to 3 years' R.I, and fine of Ks.50,000 each, in default thereof to undergo S.I. for six months Sentences awarded to accused persons namely Muhammad Yousaf and Muhammad Suleman shall run concurrently.
Benefit of section 382-B, Cr.P.C. was also extended to them.
5. The appellants have challenged their conviction and sentences. Capital sentence reference was also sent for confirmation.
6. Learned counsel for the appellants raised the following grounds:-
(i) That in a mid night time occurrence, inside residential house of Ahinad Sher deceased, where 5 persons were killed and 3 were injured the complainant as well as the eye-witnesses did not receive even a scratch on their bodies;
(ii) That there is no explanation as to how the complainant and the eye-witnesses were sleeping in the house of Ahmad Sher deceased. Zahoor Ahmad, P. W: 15 , made contradictory statement of sleeping at the rooftop of house of Saeed in Court, while before police stated in the courtyard along with other imnates. Zahoor Ahmad has his own house near the place of occurrence. He had a wife, a grown up daughter and infant child. There was no occasion for him to leave his own house. Thus their presence is doubtful and eliminated by surrounding circumstances.
(iii) That P.W.14 and P.W.15 claims their presence at the spot and when told the assailants of having been recognized, they opened fire on the deceased and injured. Had the P.Ws. Been present they would have been the preferred targets when unarmed helpless women were not spared.
(iv) Credibility of eye-witnesses including the injured have been totally shattered, when categorical statements were made by all of them, that Riaz and Zulifqar appellants were present in Police Uniform at the place of occurrence; they were attributed specific role and specific injury. Later on acquiring knowledge that they were confined in the judicial lock up at Lahore at the time ofincident, P.Ws. Changed their version that out of assailants two resembled like Riaz and Zulifqar. Prosecution conceded that Riaz and Zulifqar were in judicial custody.
(v) That the allegation of conspiracy against the aforementioned Riaz and Zulifqar is, too vague to be relied upon;
(vi) That the number of assailants was highly exaggerated;
(vii) That crime empties of Klashnikov and .12 bore gun were affected only which means that Rifle either of .244 bore or 303 was not used; (viii)Investigating Officer found all the appellants innocent in his investigation, which though is not binding on the Court yet has relevancy.
(7) Learned Additional Prosecutor General argued that appellants were specifically nominated in a promptly lodged F.I.R., eliminating chance of fabrication or false implication.
8. Heard. Record perused.
9. Evaluating the ocular account furnished by P.W.14 and P.W.15, it appears that both of them were not present at the spot. P.W.15 in his statement before police stated that he was sleeping in the courtyard, at A the time of occurrence, which he knowingly changed in his deposition before Court to claim that he was on the rooftop. P.W.14 claimed that he was sleeping in the courtyard while Zahoor and Hanif P.Ws were at the roof.. It was also stated by him that all persons-were asked to stand up in line including Zahoor and Hanif P.Ws. He was very much visible to the assailants but none pointed out the weapon or fired at him. All other inmates of the house were either killed or injured except P.W.14 and P.W.15, who have not even received a scratch on their person. When innocent unarmed women were not spared; the eye-witnesses would have been the preferred targets. Their statements are also not worthy of any reliance, when they implicated Riaz and Zulfiqar as assailants with specific role of causing injuries to the deceased persons. They remained strict to their stand till the preparation of site-plan and inspection note. On acquisition of knowledge that they were in the judicial lock up at the relevant time, they made complete somersault, describing the assailants,.Resembled like them. Both conceded that Riaz and Zulfiqar were not present at the time of occurrence. False involvement of the two appellants speaks loudly, the witnesses' character and respect for truth. Female injured witnesses were not expected to deviate from set up version, taken by first informant.They are always dominated by male members and usually give tutored statement. All the female injured P.Ws. Stated initially that Riaz and Zulfiqar were assailants alongwith other assigning specific role but later on changed their version. Mere stamp of injuries on their person does not hold them as truthful witness.
10. Ocular account is also not compatible with recovery of crime empties. All the five deceased persons and 3 injured received 25-entrance wounds in all on their person. Investigating Officer recovered 26 crime empties of klashnikov from the spot immediately on spot inspection after the occurrence. No crime empty of .244 bore or .303 bore rifle was recovered. Seemingly all the injuries were result of one burst from klashnikov.
11. Each appellant was assigned role to cause injury to one person only, deceased or injured. This conduct is abnormal. Assailants are not expected to fire one shot and retrieve back to give chance to another. It was not a shooting competition. Investigating Officer has also come to the conclusion that the appellants were not present at the spot which finding was not challenged by complainant.
Though such findings do not bind the Court but is relevant to be considered and scrutinized in the light of evidence. Above discussion brings us to the conclusion that Manzoor Ahmad and Zahoor Ahmad, eye-witnesses, were not present at the spot. They have not seen the occurrence. As far injured witnesses are concerned, their statements are not independent and made under active influence of their male members.
12. Recovery of weapons was effected from Muhammad Ashraf and Muhammad Suleman, but was not sent to the Forensic Science Laboratory for matching in absence of crime empties. The recovery is thus, inconsequential.
13. Evidence of abetting the crime was furnished by P.W.9 Khushi Muhammad. He stated that a week before the occurrence he was passing through a Bazar near the Bhaitak and heard Riaz and Zulfiqar, telling their co-appellants to arrange for their defence. Such matters are not talked so loudly that persons in bazaar will hear the conversation. Such discussions are always made secretly. After knowing that both appellants cannot be roped in main case a way was found out trap struck them in the case.
14. Muhammad Nawaz, brother of Mumtaz absconder accused was murdered in the year, 2002.
Noor, brother of P.W.14 was the principal accused. The other accused was Nawazish son of Abbas, one of the deceased in present case. Muhammad Hussain, Abbas deceased in present case and Saeed, father of P.W.14, were accused of abetment. Noor and Nawazish were sentenced to life imprisonment while other were acquitted. Complainant was trying to effect compromise, which was not being agreed to by the appellants. Muhammad Nawaz, Liaqat Ali,Muhammad Ali and Muhammad Yousaf were the witnesses of the said murder case. Their false involvement, thus, cannot be ruled out.
15. A word of appreciation to the learned Additional Prosecutor General who very frankly conceded that on account of change of initial version by the prosecution qua Muhammad Riaz and Zulifqar Ali and their presence in Jail at the relevant time, earns them clean acquittal. H Appellants Muhammad Yousaf and Muhammad Suleman are old-aged persons and were not expected to join hands at that age at midnight. Their physical remand was also not obtained by Investigating Officer on account of their old age and failing health.
16. For what has been discussed above, the prosecution has failed to produce sufficient material to connect the appellants with commission of crime beyond reasonable doubt. We while giving them benefit of doubt, accept the appeal, set aside their conviction and sentence. They shall be released forthwith, if not required in any other case.
' Murder Reference is answered in negative.