1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 1953 of 2004 filed by Zulfiqar Ahmad, Ramzan, Yousaf, Safdar, Naseer and Haq Nawaz appellants. They were convicted and sentenced by learned Judge Anti-Terrorism Court, Faisalabad, vide judgment dated 29-11-2004 as under:- Zulfiqar Ahmad, Haq Nawaz, Muhammad Yousaf and Muhammad Rarnzan, appellants.
2. ' Death and to pay compensation to the tune of Rs,Qne lac in default four months' S.I. Each on two counts, in default six months' S.I. Under section 302(b), P.P.C. For committing the Qatl-e-Amd of Muhammad Ashraf and Muhammad Sharif.
3. ' Two years' R.I. Each under sections 148 and 149, P.P.C. Two years' R.I. Each under section 353, P.P.C.
4. Two years' R.I. Each under section 224, P.P.C. Two years' R.I. Each under section 225, P.P.C.
5. 'Death and to pay a fine of Rs,one lac each on two counts in default five years' S.I. Under section 7 of the Anti-Terrorism Act.
6. Safdar and Naseer appellants ' Five years'. R.I. And to pay a fine of Rs,10,000 in default six months' S.I. Under section 324, P.P.C.
7. ' Two years' R.I. And to pay a Daman of Rs,10,000 under section 337A(I), P.P.C. Two years' R.I. Each under sections 148 and 149, P.P.C., Two years' R.I. Under section 353 P.P.C. Two years' R.I. Under section 224, P.P.C. Two years' R.I. Under section 225, P.P.C. Five years' R.I. And to pay a fine of Rs,10,000 each in default six months' S.I. Under, section 7 of Anti-Terrorism Act, 1997.
8. ' C.S. No,26/T of 2004 for confirmation or otherwise of death sentence of four convict appellants shall also be replied through this single judgment.
4. Briefly stated the facts of the case as disclosed in the F.I.R. Exh.P.L. Are that Rehmat Ullah C/1348 was posted in Police Station Missan. On spy information, it was revealed that Ijaz alias Papu accused of case F.I.R. No,183 of 1999 under section 411, P.P.C. Was present at the Dera of Zulfiqar and if raid is conducted, the accused could be apprehended. Upon this information, Muhammad Ashraf, S.-I. Along with Muhammad Iqbal, Ghulam Yasin and Haq Nawaz, FCs., on official Vehicle JGA/4670 raided at the said Dera and Ijaz accused was apprehended but he raised hue and cry and on his hue and cry, Muhammad Sharif, Zulfiqar, armed with rifle, Hakim armed with pistol, Ramzan armed with hatchet, Yousaf armed with hatchet, Ajmal Khan, Safdar and Naseer armed with Sotas came there and grappled with Muhammad Ashraf, S.-I. It was alleged in the F.I.R. That Zulfiqar and Hakim started indiscriminate firing and a shot hit on the head towards left of Muhammad Ashraf S.-I. While the fire shot made by Hakim hit Muhammad Sharif on his waist towards right. Both the injured fell down and thereafter Muhammad Yousaf gave a hatchet blow on the head and face of Muhammad Ashraf, S.-I. It was also alleged in the F.I.R. That Muhammad Ramzan gave a hatchet blow, which landed into abdomen of Muhammad Ashraf, S.-I. According to F.I.R., Ghulam Yasin FC stepped forward to save Muhammad Ashraf, S.-I. But Safdar and Naseer assaulted him with Sotas on the head. The accused were alleged to have got released Ijaz alias Papu while Muhammad Ashraf, S.-I succumbed to his injuries at the spot.
5. Inspector Alam Sher P.W.14 investigated the case at initial stages. The injury statements of both the deceased are Exh.P.D. And Exh.P.G. While the injury statement of Ghulam Yasin FC is Exh.P.B..
9. Blood stained earth was taken into possession from the place where Muhammad Ashraf, S.-I. Died vide memo. Exh.P.N. And Exh.P.N./1 is the memo. Through which the blood stained earth was secured from the place where Muhammad Sharif expired. Six crime-empties of rifle G-3, 8 of .30 bore pistol and six of 7 mm rifle were secured vide memos. Exh.P.Q. And Exh.P.P. On 18-8-1999 statement of Ghulam Yasin FC was recorded. It was on 6-9-1999 that accused Zulfiqar, Ramzan, Muhammad Yousaf, Ajmal Khan, Safdar and Naseer were arrested. During physical remand, Muhammad Ramzan, got recovered hatchet P.7 (blood-stained) was secured vide memo. Exh.P.R. On the same day, Muhammad Yousaf got recovered hatchet P.8 secured vide memo. Exh.P.S. Similarly Sota P.10 got recovered by Safdar accused was taken into possession vide memo. Exh.P.U.. Sota P.11 recovered on the pointation of Naseer, accused was secured vide memo. Exh.P.V. After completion of the formal investigation, all the seven accused were sent to face the trial.
6. At the trial, prosecution in order to prove its case produced 14 witnesses in all. The learned Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.Z., report of the Serologist Exh.P.AA. And closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. Pleaded false implication and after conclusion of the trial, all, the accused were convicted and sentenced as stated above.
7. Mr. Sher Zaheer Ahmad, learned counsel for the appellants submits that the story put in the F.I.R.
10. By the complainant has been contradicted by Malik Mumtaz D.S.P. Who had investigated the case.
11. According to learned counsel, the said D.S.P. Found Yasin FC guilty and not the present appellants.
12. It is further submitted that Yasin FC was not injured at the spot and the injuries on his person are fabricated one in as much as no blood stained clothes of the said injured were taken into possession by the Police and his statement under section 161 Cr.P.C. Was also recorded on 18-8- 1999.
13. ' It is maintained that the story given in the F.I.R. With regard to apprehension of accused Ijaz alias Papu involved in a case under section 411 P.P.C., was concocted and it was so found by D.S.P.
14. Mumtaz. According to learned counsel, Ijaz accused had got his own Pucca house at a distance of two squares from the Dera of Zulfiqar, accused while the Dera of Zulfiqar was not having even boundary walls so there was no reason on the part of Ijaz accused to sleep at the Dera of. Zulfiqar, accused.
15. ' Learned counsel submitted that two injuries attributed to Muhammad Yousaf appellant on the head and face of Muhammad Ashraf S.-I. Are not available. It is added that the injury with hatchet attributed to Muhammad Ramzan, appellant on the abdomen of Muhammad Sharif was in fact an exit wound of a fire-arm, so there is conflict between ocular account and the medical evidence.
16. ' It is next submitted that no firearm was recovered from Zulfiqar and Haq. Nawaz, appellants. From the crime empties taken into possession from the spot by the investigator, six were of G-3 rifle but the prosecution has suppressed this recovery and it was not the case of the prosecution that G-3 rifle was used by the police officials in order to defend themselves. According to learned counsel, G-3 rifle is not a weapon, which is given to the public, but the Police officials only use it and can keep it as an official rifle.
17. ' It is argued that Sotas allegedly recovered from Safdar and Naseer appellants were not found to be stained with human blood. Similarly, the hatchets recovered on the pointation of Yousaf and Ramzan, appellants were not found to be stained with human blood.
18. ' Lastly, the learned counsel submitted that in fact the occurrence had taken place at 3 a.m. And not at 5 a.m. As alleged by the prosecution in as much as Munir Ahmad P.W.4 during cross- examination admitted that he came to know about the occurrence at 3 a.m. And he reached at the spot after 5-10 minutes. According to learned counsel, this witness was neither declared hostile nor was re-examined by the prosecution.
19. ' Mr. Bashir Abbass Khan, Advocate for the appellant submitted that the F.I.R. Was recorded after due deliberation and consultation and that Ghulam Yasin F.C. While appearing in the Court stated that he did not know the accused prior to the occurrence. According to learned counsel, if this was the position, the identification parade was necessary. It is added that though charge under section 7 of Anti-Terrorism Act was not framed but all the appellants were convicted and sentenced under the said section.
20. ' Mr. Naseer-ud-Din Khan Nayyar, Additional Prosecutor General assisted by learned counsel for the State submitted that all the appellants are named in the F.I.R. With their roles; Ghulam Yasin FC being injured is star witness of the prosecution; he has fully supported the prosecution story; hatchets recovered on the pointation of Yousaf and Ramzan appellants were found to be stained with blood; the ocular account is fully corroborated by medical evidence; large number of crime empties were recovered from the spot; Haq Nawaz accused remained absconder;-in fact the occurrence has been admitted by the appellants with little variation of time and that D.S.P. Mumtaz has conducted the investigation with mala fide and under the political pressure.
9. We have heard learned counsel for the parties at length and have gone through the record with their able assistance.
21. ' In the instant case, the occurrence had taken place at 05 AM on 16-8-1999 within the revenue estate of Mauza Sahjowal which is at a distance of six miles from Police Station Missan, District Jhang while the matter was reported to the Police by Rehmat Ullah FC through written complaint Exh.P.L. At 6-45 a.m. The same day and formal F.I.R. Exh.P.L./1 was recorded by Fayyaz Ahmad, Head Constable.
22. ' There are two deceased in this case, one Muhammad Ashraf, S.-I. And other Muhammad Sharif, a companion of the appellants while Ghulam Yasin FC claims to be an injured witness.
23. ' Dr. Muhammad Afzal P.W.2 had conducted postmortem examination on the dead body of Muhammad Ashraf, S.-I. At 1 p.m. On 16-8-1999. He observed two firearms and one incised wound on the person of deceased. The probable duration between death and postmortem was 6-8 hours.
24. This doctor also conducted postmortem examination on the dead body of Muhammad Sharif, deceased and found one firearm and one incised wound on the person of the deceased. The probable duration between death and postmortem was six hours. Ghulam Yasin FC was medically examined by Dr. Muhammad Zafar Iqbal Khan P.W.1 at 2-50 p.m. On 16-8-1999. The duration given by him between injuries and medical examination was 12 hours.
25. ' From the spot, six crime empties of rifle G-3, six of rifle .7 mm and 8 of .30 bore pistols were taken into possession by the investigator. All the accused except' Haq Nawaz were arrested on 6-9-1999.
26. Muhammad Ramzan, Muhammad Yousaf got recovered hatchets. Those were though found to be stained with blood but the report of the Serologist is silent qua the origin of the blood is concerned.
27. Ajmal Khan and Safdar accused got recovered Sotas but those were not blood-stained.
28. ' The motive behind the occurrence was that one, Ijaz alias Papu who was accused in a case under section 411, P.P.C. Registered five days prior to the occurrence, on the basis of spy information, was reported to be sleeping at the Dera of Zulfiqar, accused and the Police contingent raided the Dera of Zulfiqar to apprehend Ijaz alias 'Papu and the accused mentioned in the F.I.R. Namely Zulfigar etc. Grappled with Muhammad Ashraf, S.-I. And also resorted to firing and in this way, they got released the said Ijaz alias Papu accused from the custody of the Police. This F.I.R. Which became the basis of the incident was neither produced nor taken into possession during the course of investigation nor A it was placed on record before the trial Court. There was no warrant of arrest with the Police for the arrest of Ijaz alias Papu accused of offence under section 411, P.P.C.
29. After carefully going through the evidence of the doctors who conducted postmortem examination on the dead bodies of both the deceased, we are not going to believe the story of prosecution that on the exit wounds of both the deceased Muhammad Ashraf, S.-I. And Muhammad Sharif, hatchet injuries were caused by Muhammad Yousaf and Muhammad Ramzan appellants.
30. ' Two injuries with hatchet were attributed to Muhammad Yousaf appellant on the head and face of Muhammad Ashraf, S.-I. But according to post-mortem report; there is no such injury. Similarly, the injury attributed to Muhammad Ramzan, on the person of Muhammad Sharif, deceased is exit wound of injury No,
1. Here we may reproduce some portion from the examination In chief of the doctor who conducted postmortem examination on the dead body of Muhammad Sharif deceased:--- "Injury No,1 was the entry wound with corresponding exit wound described as injury No,2 in case of Muhammad Sharif deceased."
31. ' At this stage, we may also reproduce here reply to question No,6 given by Muhammad Yousaf and Muhammad Ramzan appellants in their statements under section 342, Cr.P.C.:--- "All the P.Ws. Are Government officials and subordinates of Alam Sher Investigating Officer/S.H.O.
32. They had a motive to depose falsely against me. The real facts of the case are that on 16-8-1999 at about 3-00 a.m. Muhammad Ashraf S.-I. Along with other police officials raided upon the house when Muhammad Nawaz son of Mapal and Zulfiqar son of Hashmat Ali were also with them during dark hours of the night. Muhammad Ashraf S.-I. Had apprehended Ijaz alias Pappu who cried "Chor"
33. "Chor" at which I and other persons of the locality attracted. On seeing the arrival of people of vicinity Ghulam Yasin constable who was armed with G-3 rifle made burst which. Hit Muhammad Ashraf S.-I. And Muhammad Sharif, both fell down. Muhammad Ashraf succumbed to the injuries at the spot while Muhammad Sharif remained lying on the place of occurrence in injured condition.
34. Ghulam Yasin constable ran away from the place of occurrence with rifle G-3. The occurrence was reported to Alam Sher, S.H.O. Who had traced Ghulam Yasin constable and to save him from legal punishment caused friendly hands injuries to Ghulam Yasin constable and got him medically examined. After the death of Muhammad Ashraf, S.-I. The police had tampered the fire-arm injuries of Muhammad Ashraf, S.-I. And Muhammad Sharif with incised instrument and involved me and the remaining accused persons in this false case with mala fide and ulterior motive."
35. There is clear conflict between ocular account and the medical evidence so far as Muhammad Yousaf and Muhammad Ramzan, appellants are concerned and the defence version put by the appellants in their statements under section 342, Cr.P.C. Seems to be more, plausible and convincing specially from the fact of recovery of six crime-empties of rifle G-3 from the spot.
36. ' It being so, the case of the prosecution against Muhammad Yousaf and Muhammad Ramzan, appellants is of doubtful nature and while extending the benefit of doubt, appeal to their extent is allowed, conviction and sentence recorded against them by the trial Court vide impugned judgment is set aside and they are acquitted of the charge. The death sentence of both these appellants is NOT confirmed and Murder Reference to their extent is answered in NEGATIVE. Both these appellants are in jail and they shall be released forthwith if not required to be detained in any other case.
37. Now, we take up the case of Safdar and Naseer appellants. They were alleged to have caused- injuries- on the person of Ghulam Yasin, F.C. According to case of the prosecution, the occurrence had taken place 5 a.m. On 16-8-1999 but he was medically examined at 2-50 p.m. On the same day. We have minutely gone through the MLR of Ghulam Yasin F.C. According to it, injured Ghulam Yasin arrived in the hospital at 7-45 a.m. But the doctor did not examine him for about 7 hours. In the relevant column of "Name of friend or relations" and word "police" is written. We are fully convinced that injuries on the person of Ghulam Yasin F.C. Were fabricated in order to make him as an eye-witness of the occurrence. In these circumstances, case against Safdar and Naseer F appellants also seems to be of doubtful nature, so while extending benefit of doubt, both these appellants are acquitted of the charge. Both these appellants are on bail and they shall stand discharged from their bail bonds.
38. ' Next is the case of Zulfiqar and Haq Nawaz, appellants. It is important to mention here that from the spot, six crime-empties of rifle G-3 were taken into possession. To keep this fire-arm no licence is issued to any person from the public and the weapon is only under the use of police officials. It was not the case of prosecution that anyone from the police officials fired at the accused party in order to save them. If they had not fired, from where the six crime-empties of rifle- G-3 came at the spot. No recovery was effected from Haq Nawaz and Zulfiqar I appellants.
39. The complainant who lodged the F.I.R. Admitted before the trial Court that he did not know the accused persons prior to the occurrence. If it was the position, how he came to know about the names of the accused at the time of submitting the written complaint Exh.P.L. It that the F.I.R. Was recorded after due deliberation and consultation.
40. ' In this background we are of the considered view that the case against both these appellants is also of a doubtful nature, so while granting benefit of doubt, we accept the appeal filed by these appellants, I set aside the conviction and sentence recorded against them by the trial Court vide impugned judgment and acquit them of the charge.##TE# The death sentence of both these appellants is NOT confirmed and Murder Reference to their extent is also replied in the NEGATIVE.
41. They are in jail and shall be released forthwith if not required to be detained in any other case.