' TARIQ SHAMIM, J.---Muhammad Yaseen Imtiaz Butt, Muhammad Nawaz, Faisal Aziz, Jahangir Meo and Ziarat Ali Shah appellants along with six others were tried by the Special Judge Anti-Terrorism Court No,1, Lahore, in case F.I.R. No, 147, dated 29-7-2006 registered under sections 324, 224, 225, 353, 148, 149, 427, 109 P.P.C., sections 127, 128, 13 of Arms Ordinance, 1965 and section 7 of the Anti- Terrorism Act, 1997 with Police Station Railway Police, Lahore and said learned trial Court vide impugned judgment, dated 20-12-2006 convicted the appellants under section 7(h) of Anti- Terrorism Act, 1997 and under sections 427/149, P.P.C. And sentenced them to five years' R.I. Each and fine of Rs,10,000 each and one year each along with fine of Rs,5,000 each respectively.
2. Feeling aggrieved of the impugned judgment Muhammad Yaseenand four other appellants filed Criminal Appeal No, 1928, whereas Ziarat Ali Shah, appellant filed Criminal Appeal No, 66 of 2007.
We propose to decide both the appeals through this single judgment.
3. The brief facts of the case as per complaint Exh.PA lodged on 29-7-2006 by Muhammad Ayub A.S.-I./Incharge Police Post Shandara (P.W.17) on the statement of Muhammad Younis Constable are that on the said day Suleman A.S.-I. Had handed over to him and Muhammad Anwar, Constable Imtiaz Butt accused (in handcuffs) of a complaint regarding snatching of mobile phone of Asif Munir, mobile phone (case property) and police papers signed by the said A.S.-I. The handcuffs of Imtiaz Butt accused was in the hand of Muhammad Anwar Constable and they boarded the train wherein Muhammad Ashraf, Asghar, Arshad and Afzal Constables were also on duty. When train stopped at Mehta Soja Railway Station at about 2035 hours, father of Imtiaz Butt Muhammad Yasin Butt armed with pistol, his brother Muhammad Nawaz Butt armed with pistol, Ishtiaq Butt armed with rifle, Faisal Aziz armed with pistol, Ziarat Shah armed with pistol, brother of Kaka Butt son of Bagga Butt armed with Sota Jahangir Meo, Ziarat Ali Shah armed with pistol and 13, 14 unknown accused arrived there and in order to terrorize the people started firing and boarded the train. The unknown co-accused pelted stones on the train and glasses of windows were broken.
Due to fear the passengers concealed themselves under the seats and the above mentioned accused persons grappled with the Constables and forcibly got released Imtiaz Butt from their custody.
4. After discreet investigation, the appellants along with other co-accused were challaned and put to trial. The learned trial Court after framing of the charge against the accused recorded statements of the 18 prosecution witnesses and that of the accused including the appellants under section 342, Cr.P.C., convicted and sentenced the appellants as stated above. All other co-accused were however, acquitted of the charges.
5. Learned counsel for the appellants contended that during the trial Muhammad Younis Constable complainant/eye-witness who appeared as P.W.9 has neither named the appellants nor any other accused which fact was not considered by the learned trial Court; that the learned trial Court had disbelieved the prosecution evidence to the extent of six acquitted co-accused and on the basis of the same evidence had convicted the appellants which had resulted in grave miscarriage of justice; that Asif Munir from whom mobile phone had allegedly been snatched had not been produced by the prosecution as a witness and thus the best evidence was withheld by the prosecution; that the evidence led by the prosecution was full of material contradictions and in such-like cases conviction could not be based on probabilities; that the prosecution had miserably failed to prove that firing had taken place as neither any empty had been recovered from the place of occurrence nor any damage was shown to have been caused to the railway compartment or other installations of Railways Station; that the recovery of weapons and the handcuffs was of no value as the Investigating Officer had not associated any private person with the recovery proceedings and that from a perusal of the evidence on offence falling under the purview of Anti-Terrorism Act was made out and that the trial Court had not advanced cogent reasons for the decision, hence the appellants were entitled to be acquitted.
6. Conversely, the learned Addl. Prosecutor General representing the State contended that the judgment of the trial Court was well-reasoned and based on proper appreciation of evidence and that the offence under section 7 of the Anti-Terrorism Act 1997 was fully made out from the evidence and therefore, the judgment of the learned trial Court did not call for interference.
7. We have heard the learned counsel and have also gone through the record with their assistance.
8. Eighteen witnesses were examined by the prosecution at the trial. Muhammad Younis Constable P.W.9 submitted a written complaint Exh.PA on 29-7-2006 at 2310. Hours. At Police Station Shandara where the train from Mehta Sooja Railway Station had arrived after the occurrence had taken place. On the basis of the complaint F.I.R. Exh.PA/1 was lodged at 2350 hours. It is, therefore, evident that the F.I.R. Was lodged with promptitude which eliminates the possibility of fabrication or false implication. Manzoor Masih P.W.1, the driver and Muhammad Younis P.W.2, the fireman of the train testified that on 29-7-2006 the train arrived at Mehta Sooja Railway Station which stopped suddenly due to loss in pressure and while Manzoor remained on the train, Muhammad Younis in order to determine the fault alighted from the engine and witnessed that a fight was taking place.
Pervez lqbal, Assistant Station Master P.W.3, heard sound of gun shots coming from the side of the railway station. Malik Muhammad Jameel, P.W.4 Guard Incharge of the train, deposed that on 29- 7-2006 the train arrived at Mehta Sooja Railway Station at 2033 hours. He was directed by a person carrying a rifle not to move the train. Since there was sudden loss of pressure as such he conducted an inspection and discovered that the hose pipe had been disconnected. He further stated that he had witnessed a large number of persons attacked the train and by show of force had obtained the release of a person from the custody of the police. Muhammad Afzaal P.W.6 has deposed on the same lines as P.W.4. Imtiaz Butt accused-appellant was in custody of Muhammad Younis Constable P.W.9 and Muhammad Anwar Constable P.W.11 who in theirdepositions have provided complete details of the manner in which the accused-appellants, by resorting to aerial firing and creating terror had forcibly snatched Imtiaz Butt appellant from their custody.
Muhammad Arshad P.W.10 stated that when the train arrived at Mehta Sooja Railway Station 30/35 persons armed with weapons arrived there and demanded that Imtiaz Butt be handed over to them and on their refusal. Nawaz Butt, Yaseen Butt, Faisal, Jahangir Meo and Ashtiaq Butt all armed with pistols forcibly snatched Imtiaz Butt from the custody of the P. Ws. By resorting to firing and causing damage to the windows of the train.
9. The account of the occurrence furnished by the eye-witnesses is credible and establishes beyond a doubt that the occurrence had taken place at Mehta Sooja Railway Station on 29-7-2006 at about 8-30 p.m. In the manner stated by the eye-witnesses. It is also in the evidence that at the, time of occurrence a number of passengers were on board the train who on account of firing and fear created by the appellants and others saved their lives by hiding under the seats. The witnesses in their testimony had corroborated each other in all respects and although they were subjected to lengthy cross-examinations, no significant dent was created in their testimony by the defence.
Needless to mention that all the accused including the appellants were duly identified by the eyewitnesses in the trial Court who even otherwise had no enmity with the appellants and their co- accused for falsely implicating them in the case.
10. The argument that Asif Munir from whom the Mobile Phone had been snatched by Imtiaz Butt appellant being a material witness was not produced by the prosecution and thus the best evidence had been withheld by the prosecution, has no merit. Suffice it to say that the occurrence took place after the Mobile Phone had been snatched and, therefore, to the extent of the crime committed by the appellants the evidence of the witness was immaterial. The fact remains that Imtiaz Butt appellant was in police custody who was forcibly removed from the custody of the police by the other appellants and their co-accused.
11 Furthermore acquittal of some accused on the basis of same set of evidence cannot come in the way of conviction of other accused as "falsus in uno falsus in omni bus" has along been discarded by the Courts in this country. Similarly the rule that the integrity of a witness is indivisible cannot be accepted as of universal application. The grain has to be shifted from chaff in each case according to the circumstances.
12. The appellants are further connected with the prosecution case by the evidence of recoveries.
Babo Shamraiz Constable P.W.13 is witness of recovery of pieces of glass P2 and two safety rods of the window of the train P3/1-2 taken into possession vide recovery memo. Exh.P.E. And pistol P4 recovered at the pagination of Faisal Azizappellant from the bushes toward east of the Railway Station. One live bullet P5 was recovered from the pistol. Muhammad Irfan Constable P.W.14 is the witness of recovery of pieces of broken glass, safety rods and pistol P5 used by Ziarat Shah appellant in the occurrence. Muhammad Ramzan Constable P.W.5 witnessed the recovery of pistol P6 and three live bullets P7/1-3 at the pointation of Yaseen appellant taken into possession vide recovery memo Exh.PJ. Ijaz Hussain Constable P.W.16 witnessed the recovery of pistol P8 and 2 live bullets P9/1-2 at the instance and pointation of Muhammad Nawaz Butt appellant as well as the handcuffs P10 at the pointation of Imtiaz Butt appellant from the bushes near the Railway Station.
The recoveries effected from the accused do not appear to be fake or planted. Even otherwise, there is no reason for the police to plant false recoveries against the appellants and their co- accused. Moreover, the evidence of recovery is corroborative in nature which in the instant case is credible and fully supports the eye-witness account. Although the witnesses of recovery are police officials but as has been held by the Hon'ble Supreme Court in the cases of Muhammad Naeem alias Naeema v.The State (1992 PSC (Crl.) 725), Muhammad Khan v. The State (1994 D SCMR 1543), Rashid Mehmood v. Administrator, District Council and others (PLD 1997 Lahore 407), Munawar Shah v. The State (2004 MLD 200), police officials are as good witnesses as any. In the peculiar facts and circumstances of the case and in particular on account of terror and fear created by the appellants in the area, independent witnesses would have been willing to come forward to participate in the recovery proceedings.
13. The investigation in the case was conducted by Muhammad Ayub A.S.-I. P.W.17 who apart from recording the statements of the witnesses is also a witness of recoveries. The investigation conducted by him appears to be honest and transparent which even otherwise was not challenged by the appellants before any forum as being dishonest or based on mala fides. The investigation conducted by this witness was scrutinized by Pervez Akhtar S.-I./S.H.O. P.W.18 who prepared the challan of the case.
14. In view of the evidence adduced at the trial the learned trial Court felt justified in recording the conviction of the appellants. The learned trial Court has properly appreciated the evidence on the record F and the conclusions arrived at by the learned Court have not been found us to be arbitrary, perverse or against the law.
15. For what has been stated above this appeal has no force which is dismissed.