RAJA FAYYAZ AHMED, J.--- This criminal appeal has been directed against the judgment, dated 16-5-2002 passed by the learned Single Judge in Chambers of the Lahore High Court, Multan Bench, whereby Criminal Appeal No,54 of 1999(ATA) preferred by Shafqat Abbas and Mujahid Hussain against their convictions and sentences awarded to them each under sections 302(b)/324/34, P.P.C. Vide judgment dated 25-10-1999 of the learned Judge, Special Court No,II (Anti-Terrorism), Multan (Special Case No,14 of 1998) in case F.I.R. No,54 of 1995 registered with Police Station Mailsi on 12-2-1995 has been dismissed.
2. The above said appellants along with their co-accused Nazar Abbas, were convicted by the above said learned trial Court under section 302(b), P.P.C. For committing the murder of Hafiz Fayyaz Ahmed, Kaley Khan and Muhammad Ramzan and they were sentenced to suffer imprisonment for life on each count.. Also, the appellants and their above said co-accused were convicted under section 324/34, P.P.C. For causing injuries to Faiz Bukhsh (P.W.6), Ghularn Rasool (P.W.8), Ashiq Hussain (P.W.12) and; to Muhammad Aslam, Zawar Ahmed and Muhammad Rafique (not produced) and sentenced to suffer 10 years' R.I. Each under section 324/34, P.P.C. They were also found liable to pay fine of Rs,20,000 each or in default whereof to further suffer R.I. For six months on each count All the sentences were ordered to run concurrently and; benefit of section 382-B, Cr.P.C. Was extended in their favor.
' Out of these convicts, Nazar Abbas (brother of Shafqat Abbas convict) was on bil. He was taken into custody and sent to the jail to undergo the sentences awarded to him by the learned trial Court.
3. The above said convicts filed Criminal Appeal No,54 of 1999(ATA) before the learned Lahore High Court, Multan Bench, which as above said was dismissed to the extent of the present appellants, whereas; the same to the extent of convict Nazar Abbas was accepted and he was acquitted of the charges by extending benefit of doubt in his favor vide judgment impugned herein.
4. The relevant facts of the case are that the occurrence took place on 12-2-1995 at about 8-30 p.m. Inside the Madrassa Islah-e-Muslimeen within the jurisdiction of Police Station Saddar Mailsi.
On receipt of information about the occurrence, Muhammad Akram S.-I. (P.W.22) reached to the place of occurrence where Qari Muhammad Anwar complainant (P.W.5) reported to the said Police Officer about the incident who recorded his statement and sent Murasila Exh.P.A./1 to the police station for registration of the case, on the basis whereof F.I.R. No,54 of 1995 Exh.P.A. Under sections 302/324/34, P.P.C. Was registered with the above said police station.
' It was stated in the complaint/report that P.W. Qari Muhammad Nawaz (Imam Masjid) of the Madrassa that at about 8-30 p.m. On the above said date his pupil Hafiz Fayyaz Ahmed was leading Namaz-eTaravih when during 9th Rakat a klashnikov burst hit the Namazis in the courtyard of the mosque from their behind, as a result whereof; Hafiz Fayyaz Ahmed, Muhammad Ramzan, Kaley Khan, Faiz Bukhsh, Muhammad Aslam, Zawar Ahmed, Muhammad Rafiq, Ghulam Rasool and Ashiq Hussain suffer fire-arm injuries, out of whom Muhammad Ramzan, Kaley Khan and Hafiz Fayyaz Ahmed were found to be in critical condition, on which Sh. Maqbool Ahmed and Haji Allah Bukhsh (P.W.10) took the injured persons on a bus to the hospital at Vehari, while injured Muhammad Ramzan was taken to the hospital at Mailsi in a car. It was, however, stated that subsequent thereto the sweet-merchant adjoining to the mosque namely; Iltaf informed that three persons, whose descriptions were disclosed to the complainant by the said person came front' towards Mailsi in a white coloured Toyota car. Out of whom two persons came out of the car, while the third person remained present on the driving seat of the car. The beard person remained standing at the main gate of the mosque while the other one entered into the mosque and fired klashnikov bursts at the Namazis. The complainant further stated in his report that Hafiz Fayyaz Ahmed and Kaley Khan succumbed to the injuries on their way to the hospital. The complainant disclosed that they belonged to Fiqah-e-Hanfi (Devband, Ahle-Sunnat) and strongly suspected that their Jawans belonging to Sipah-e-Sahaba have been intentionally done to death and others were injured.
5. On the same date, Muhammad Akram, S.-I. (P.W.22) took into possession pieces of blood-stained mats from the place of occurrence where Muhammad Ramzan, Hafiz Fayyaz Ahmed and Kaley Khan had fallen down through memos. Exhs.P.B., P.C. And P.D., 11 empties of klashnikov were also recovered from the spot and taken into possession vide memo. Exh.P.G. Four leads of bullets P. 1 /1- were also secured from the place of occurrence and taken into possession vide memo. Exh.P.G.
6. Shafqat Abbas appellant was arrested on 26-1-1997, while Mujahid Hussain appellant was arrested on 28-4-1997 by Rab Nawaz Inspector Police (P.W.23). He also arrested Nazar Abbas on 9- 10-1995 (acquitted by the learned High Court), whereas; co-accused Zahid Abbas remained as proclaimed offender and thus, could not be tried.
7. The accused persons facing trial did not plead guilty to the charge. The prosecution in order to substantiate the accusation produced 23 witnesses. Qari Muhammad Nawaz complainant (P.W.5) has supported to his version as contained in his complaint about the occurrence but as regards the involvement of the actual culprits, he was not an eye-witness. Faiz. Bukhsh (P.W.6), Ghulam Rasool (P.W.8) and Ashiq Hussain (P.W.12) appeared as injured witnesses but they did not identify the appellants during the trial as the accused persons. P.W. Faiz Bukhsh (injured) though stated at the trial that he had seen the assailants but stated that none of the assailants was present in the trial Court.
8. Dr. Gulzar Ahmed Nadeem (P.W.4) M.O. D.H.Q. Vehari has examined injured Faiz Bukhsh (P.W.6), Muhammad Aslam, Rab Nawaz, Muhammad Rafique, Ghulam Rasool (P.W.8), Ashiq Hussain (P.W.12) and issued MLRs as Exhs.P.N., P.O., P.P., P.Q. And P.R. Respectively. Their MLRs showed that they had suffered fire-arm injuries on their persons, out of whom injured Muhammad Aslam also suffered injuries caused by blunt weapon as well.
' Dr. Abdul Razzaq (P.W.9) Deputy District Health Officer, Vehari was posted as M.O. T.H.Q. Hospital Mailsi on 13-2-1995 conducted the post-mortem examination of the dead bodies of Hafiz Fayyaz Hussain, Kaley Khan and Muhammad Ramzan. He produced their post-mortem reports respectively as Exhs.P.S., P.V. And P.W., whereas; skia-grams showing seats of fire-arm injures were respectively produced as Exhs.P.S./1, P.V./1, P.W./1. As per his medical opinion, the fire-arm injuries suffered as noted in their postmortem reports were sufficient in the ordinary course of nature to cause their death.
' The post-mortem reports showed that dead body of Fayyaz Ahmed and Kaley Khan deceased were brought to the hospital for postmortem examination by the police and nothing was mentioned in postmortem report of Muhammad Ramzan deceased as to by whom his dead body was brought to the hospital.
9. The ocular account of the occurrence in respect of accused Shafqat Abbas and Mujahid Hussain was furnished by Haji Allah Bukhsh (P.W.10) and Muhammad Sharif (P.W.11), whereas; Sh. Bashir Ahmed (P.W.15) deposed about the involvement of Nazar Abbas accused (acquitted by the learned High Court). Muhammad Yar (P.W.7) appeared as witness of the occurrence. Muhammad Akram S.-I. (P.W.22) and Mehr Rab Nawaz Inspector Police (P.W.23) appeared as Investigating Officers. Lateefullah H.C./Moharrer (P.W.21) stated about the recording of formal F.I.R. And the rest of the P.Ws. Are the formal witnesses.
10. The accused facing trial in their statements recorded under section 342, Cr.P.C. By the learned trial Court denied and disputed the accusation and the incriminating pieces of evidence and claimed their innocence, as well as; false involvement in the case on account of their being Shias by faith. None of them opted to record statement on oath in disproof of the charge under section 340(2), Cr.P.C.
11. The learned Advocate Supreme Court for the appellants contended that the fate of the prosecution case primarily hinges upon the evidence of P.W. Haji Allah Bukhsh, which if be capable of reliance could warrant into the conviction of the appellants coupled with the other circumstantial pieces of evidence, such as; medical evidence, pieces of blood-stained mats taken into possession from the spot by P.W.22/ Investigating Officer, klashnikov empties and bullet leads recovered from the spot and the evidence of injured P.Ws. Faiz Bukhsh, Ghulam Rasool and Ashiq Hussain, as well as; of Muhammad Yar (P.W.7), who deposed about the occurrence but did not implicate the appellants in the instant case. The evidence of Haji Allah Bukhsh (P.W.10) was not worthy of any credence on account of inherent doubts, discrepancies and factual infirmities appearing in his evidence, which could not be in absence of independent corroboration as to the involvement of the appellants, wanting in the case, could be relied upon for the purpose of the conviction of the appellants. The evidence of these witnesses according to the learned counsel, is highly unconvincing, unreliable and incredible and could not be made basis for conviction of the appellants and; for safe administration of criminal justice no implicit reliance on the testimony of said P.W. Believed by the learned trial Court, as well as; by the learned Division Bench of the High Court for maintaining their convictions could be placed. P.W. Haji Allah Bukhsh implicated the appellants in the commission of the alleged crime for the first time after four months of the occurrence without furnishing any plausible explanation about the inordinate delay in stating about the alleged involvement of the appellants in the case, hence; on this score alone the evidence of this eye-witness was liable to be kept out of consideration. Moreover, P.W. Allah Bukhsh did not previously know the appellants nor was aware about their names which statedly were disclosed to him by some son of one Anwar Shah resident of the area and such fact indicated that since no clue about the culprits could be found during the investigation of the case, subsequently, the appellants being Shias by faith were implicated in the case after deliberations and consultations and apparently the said P.W. Appears to have been planted as a witness by the prosecution. According to the learned counsel without any sound and valid basis merely on surmises, conjectures and oblivious of the principles of criminal administration of justice the conviction of the appellants was maintained by the learned Single Judge in the High Court, which could not be sustained.
12. On the other hand, the learned State counsel controverted the submissions put forth on behalf of the appellants and submitted that the statement of P.W. Haji Allah Bukhsh was recorded on the same date at 11-30 p.m. Under section 161, Cr.P.C. Who provided reasonable explanation about his presence very close to the place of occurrence and having seen the appellants which could not be doubted in the circumstances of the case as fake particularly being the local resident of the area, hence; appropriately his evidence was believed by both the learned Courts. The learned counsel for the State submitted that in the circumstances of the case, the evidence of P.W. Allah Bukhsh has rightly been believed and acted upon leaving no room of discarding or doubting the same on any ground which finds support from the other pieces of evidence produced at the trial, hence; conviction of the appellants and the punishment awarded to them each by the trial Court and maintained by the learned Bench of the High Court was unexceptionable.
13. Heard the learned Advocate Supreme Court for the appellants and Mr. Dil Muhammad Tarar, the learned Advocate Supreme Court for the State at length. The entire evidence available on record has been carefully and minutely perused and considered including the impugned judgment and the one passed by the learned trial Court in the light of the contentions raised by the learned counsel for the parties.
14. Admittedly, conviction of the appellants has been based on, the evidence of P.W. Haji Allah Bukhsh, which if found be credible and capable of reliance would necessarily result into the conviction of the appellants on the charges coupled with the evidence of other P.Ws. Mentioned above, which relate to the occurrence, medical evidence etc., hence; the evidence of Haji Allah Bukhsh (P.W.10) Muhammad Sharif (P.W.11) and Muhammad Yar (P.W.7) which related to the occurrence and the evidence of the injured P.Ws. Faiz Bukhsh and Ghulam Rasool need to be scrutinized with great care and caution.
' According to the evidence of P.W. Haji Allah Bukhsh, he along with one Muhammad Yar (not examined) were on their way to Masjid/Madrassa Islah-e-Muslimeen for offering prayers at about 8-15/ 8-30 p.m. 4-1/2 years back for Namaz-e-Taravih but they were a bit late and when they reached near to the mosque they noticed a white coloured car without a number plate parked adjacent to the mosque. Sahafqat Abbas accused present in Court, to whom he identified, was allegedly found sitting on the driving seat of said car and in the meanwhile they heard fire reports from within the mosque on which they heard hue and cry in the mosque and soon thereafter, he saw Mujahid Hussain accused present in Court coming out of the mosque armed with a rifle followed by Zahid Hussain accused, not present in the Court being an absconder, who made firing at the gate of the mosque, whereafter, Mujahid Hussain and Zahid Hussain boarded in the car. The witness stated that he and Muhammad Yar raised alarm and when they entered into the mosque found Hafiz Fayyaz, Kaley Khan, Ramzan, Faiz Bukhsh, Ghulam Rasool Aslam and Ashiq Ali lying in injured condition on account of the firing. He stated that Zawar and Rafique students in the above said Madrassa were also found having suffered fire-arm injuries and that injured person were removed for the hospital but on their way Fayyaz, Kala and Ramzan expired.
15. Muhammad Sharif (P.W.11) deposed at the trial that on the day of occurrence at about 8-15 p.m.
He was sitting on the roadside at Karampur Palace Chowk along with Bashir Ahmed Sheikh (P.W.15) when a white coloured car stopped at a short distance ahead of them. Out of the said two persons namely, Nazar Abbas was identified by the said witness and the other was not known to him, who had covered himself with a Chaddar deboarded from the car. Nazar Abbas, according to the witness was empty-handed, while his above said companion was having klashnikov with him. He, however, stated that three more persons sitting in the car moved ahead and within 4/5 minutes they heard firing, whereupon; there was a hue and cry and alarm, while people were running towards the mosque and coining out of the mosque situated at a distance of 60 yards from the point where he was sitting with his companion Bashir Ahmed Sheikh and; simultaneously the same car along with three persons came back in which Nazar Abbas accused was boarded. The witness stated that as they moved towards the car, one of the occupants of the car made firing so being scared none dared to step forward. The witness added that he rushed to the mosque. He found his son Hafiz Fayyaz Ahmed along with many others lying injured, so he managed a car and took his injured son to the hospital but he succumbed to the injuries on the way to the hospital. According to the witness after the burial of his son and Khatam, he along with Sh. Bashir Ahmed (P.W.15) out of fear of their lives left for Karachi and came back to Karampur after four months, made statements to the police and added in his examination-in-chief that he was called on by the police and was told that accused in the case had been arrested so he should come to identify the culprits. The witless went to the police station and identified Nazar Abbas kept in the lock-up of the police as one of the accused, who allegedly had got down from the car along with another accused carrying klashnikov with him. The witness further stated that in his presence, the Investigating Officer interrogated Nazar Abbas, who disclosed that five persons namely, Zahid Hussain, Shafqat Abbas, Mujahid Hussain and one Sherazi besides himself had committed the Wardat and further that pursuant to the disclosure made by Nazar Abbas, Mujahid Hussain and Sherazi were taken along by the Investigating Officer to the place where the above said accused pointed out the spot where he had deboarded from the car before the occurrence in his presence. He produced pointation memo of the said spot as Exh.P.Y.
16. The evidence of Sh. Bashir Ahmed (P.W.15) in substance is identical to the evidence of. P.W.
Muhammad Sharif. P.Ws. Muhammad Sharif and Sh. Bashir Ahmed had deposed only about accused Nazar Abbas and they even did not identify the appellants namely, Shafqat Abbas and Mujahid Hussain before the trial Court as the culprits involved in the commission of the occurrence.
Nazar Abbas as above mentioned had been acquitted by the learned High Court vide judgment impugned herein.
17. The injured P.Ws. Namely Faiz Bukhsh, Ghulam Rasool and Ashiq, who appeared respectively as P.W.4, P.W.8 and P.W.12 though briefly deposed about the occurrence but did not nominate the appellants nor identified them as the accused persons before the learned trial Court.
18. Haji Allah Bukhsh in cross-examination admitted that his statement was recorded by the police during investigation of the case after four months of the occurrence. He is resident of Karampur, Tehsil Mailsi, District Vehari and stated that he could not recollect the name of Mohallah where he resided. He further stated in cross-examination that he along with his companion Muhammad Yar (not produced) and the complainant Qari Muhammad Nawaz took the injured persons in a bus to the hospital at Vehari and admitted that he and Muhammad Yar did not disclose to the complainant about the accused persons having been identified by them. He admitted that he and Muhammad Yar remained in the hospital with the injured persons for about half an hour and reached back to the place of occurrence at about 10-15/10-30 p.m. He, however, stated that the complainant and the police took the dead bodies to Civil Hospital, Vehari from Karampur and after that the police and the complainant came back to the place of occurrence.
' From the above answers given by the said P.W., it is abundantly clear that the witness had ample opportunities to disclose about the identity or the names of the appellants to the police or at least to the complainant but he did not opt to make any such disclosure about the involvement of the appellants in the occurrence. He further stated in cross-examination that in his presence many persons remained present in the said mosque. He also admitted that he did not disclose to any other person nor after the occurrence about the accused persons as having been identified or known to him. He further stated that his statement was recorded at 11-30 p.m. As regards Shafqat Abbas convict/appellant, he stated that Shafqat Abbas was already known to him because the said accused used to visit the Shia residents of his Mohallah. He admitted that Shafqat Abbas was resident of Vehari and that he had no connection with Shafqat nor ever visited the house of Shafqat Abbas. The said P.W. Stated that Zawar Shah, Iqbal Shah and Anwar Shah are inter se brothers and Shias by faith and Shafqat used to come to the house of Zawar Shah. In response to a defence question, the witness stated that he had asked about Shafqat from the son of Iqbal Shah aged about 12/13 years whose name he did not know. The witness while resiling from his above said deposed fact stated, that he had not mentioned about the son of Iqbal Shah rather; had stated about the son of Anwar Shah. At this juncture, a note was recorded by the learned trial Court that the said P.W. Had changed his version about the said fact.
' It is very interesting to note that P.W. Allah Bukhsh in the cross-examination part of his statement admitted the defence suggestion that as and when he wants to speak truth, he so speaks and tell lies. He further explained that he did not know the name of the son of Iqbal Shah 12/13 years old from whom he had inquired about appellant Shafqat and again said that he had inquired from the young son of Anwar Shah because he suspected appellant Shafqat in his estimation. He also admitted that despite being member of Sipah-e-Sahaba he did not inform the police about the involvement of Shafqat Abbas in the occurrence. The witness admitted that except the name of Shafqat he knows nothing about Shafqat and stated that he had seen Shafqat about 2 months prior the occurrence. The witness further stated that he only had a glance at Shafqat nor had seen Mujahid Hussain and Zahid Hussain prior to the occurrence. He also admitted that except mentioning the names of Mujahid and Zahid Hussain to the police and their descriptions, nothing was stated by him about the said accused persons to the police and even their names were told to him by some son of Anwar Shah. He stated that said car was of blue colour and he had seen the above said two persons while boarding in the said car when he passed from near to the car. He admitted that in his statement before the police he did not mention about the identifying features of the accused persons nor gave their descriptions.
' Although, P.W. Haji Allah Bukhsh stated in his cross-examination that his statement was recorded after four months of the occurrence but it has been established from the evidence of Rana Muhammad Afzal S.-I. (P.W.20) who was posted as S.H.O. Police Station Saddar Mailsi; stated before the trial Court that on receipt of information about the occurrence, he went to the said site at 11-30 p.m. And there he recorded the statement of P.W. Allah Bukhsh under section 161, Cr.P.C. Such a deposed fact was not challenged by the defence, hence; the fact stands proved that the statement of the said P.W. Was recorded on the same night and not after four months of the occurrence, however; the fact remains that the evidence of the said witness referred to above as to the identification of the appellants by their names including their descriptions etc. And the role attributed to them by the said witness in view of the answers given by him in his cross-examination undoubtedly suffered from substantial discrepancies, inconsistencies and material doubts, who categorically stated that he did not disclose about the names of the appellants etc. To the complainant or to the police or to any other person in the hospital where he was present with the injured persons or even thereafter at the place of occurrence to the police who remained present there throughout the night and even A later on to any other person and even to the police, hence; in our considered opinion no implicit reliance on the testimony of P.W. Haji Allah Bukhsh could be placed for the purpose of the conviction of the appellants in absence of corroboration from any other source wanting in the case in view of the well-settled principles of safe administration of criminal justice, inasmuch as; none of the Police Officers who appeared as P.Ws.20, 22 and 23 stated that P.W. Haji Allah Bukhsh disclosed about the names of the appellants or their identification. Appellants Shafqat Abbas and Mujahid Abbas were respectively arrested on 26-1- 1997 and 28-4-1997 and were declared as P.Os. In respect whereof although; no explanation has been given by the said convicts, yet, independently mere abscontion in absence of any other incriminating piece of evidence could not entail penal consequences against them or to B expose them to the criminal liability on which they had been charged. The medical evidence, the eye- witness account furnished by P.W. Haji Allah Bukhsh dealt with hereinabove, evidence of the injured witnesses and Muhammad Yar (P.W.7), which merely related to the occurrence would not provide any corroboration incriminating in nature as against the appellants coupled with recovery of klashnikov empties, bullet leads and the blood-stained pieces of mat secured from the place of Wardat by the Investigating Officer.
' The attributed disclosure made by accused Nazar Abbas before the Investigating Officer in presence of P.W. Muhammad Sharif during interrogation, involving appellants Shafqat Abbas, Mujahid Hussain and others in the commission of the offence, not leading to the discovery of a particular relevant fact or incriminating material is inconsequential and inadmissible, therefore, in view of the above discussion and reasons by extending benefit of doubt in favor of the appellants in the given facts and circumstances of the case, they have been found entitled to earn acquittal.
Resultantly, their convictions and sentences awarded by the learned trial Court under sections 302/324/34, P.P.C. And maintained by the learned High Court in appeal filed by the appellants were set side vide our short order. Accordingly, they have been acquitted of the charges and their appeal accepted.
19. These are the reasons of our short order of even date announced in open Court.