' KHURSHID ANWAR BHINDER, J.--- Muhammad Ashraf alias Kali and Iftikhar. Ahmad alias Khair, appellants were convicted under section 7(a) of Anti-Terrorism Act, 1997 read with section 302, P.P.C. By the learned. Judge, Anti-Terrorism Court No,I, Lahore vide judgment, dated 7-1-2006, in case- F.I.R. No,247, dated 27-7-2004, registered under sections 302/324/353/427/148/149, P.P.C. And section 7, A.T.A., 1997, at Police Station Mangtanwala District Sheikhupura and sentenced to imprisonment of life each with a fine of Rs,25,000 each. They were further directed to pay Rs,2 lacs each as compensation to the legal heirs of the deceased with benefit of section 382-B, Cr.P.C.
2. Briefly the prosecution case is that on 27-7-2004 at about 3-30 a.m. Amjad Ali A.S.-I. Along with Zulfiqar Ali 1840/C, armed with G-3 rifle, Muhammad Tufail 1280/C, armed with semi-automatic rifle were patrolling on Official Vehicle No,677-SAF, driven by Muhammad Saleem 478/C, when they reached at a distance of 1/2 Km. From Sokar Canal, they saw five unknown accused having moderate heights and were wearing Shalwars and Qameezes were looting the vehicles as they had blocked the road with a tractor trolley. As soon as the accused saw the police, started indiscriminate firing. Seven fire shots had hit on the back of chest of Muhammad Tufail constable.
Zulfiqar Ali constable fired five/seven fire shots in self-defence. Accused while firing fled away in the darkness. Muhammad Tufail constable succumbed to the injuries at the spot.
3. After being arrested and usual investigation, both the appellants were sent up for trial before the learned trial Court where they were charge-sheeted to which they did not plead guilty upon which the prosecution examined as many as 15 witnesses to bring home guilt of the appellants. Dr. Mubasher Ahmad, who conducted post-mortem examination on the dead body of Muhammad Tufail deceased appeared as P. W.1 who found the following injuries on his person:---
(1) Two fire-arm wounds of entrance with inverted margins each measuring about 1 c.m. x 1 c.m. On the back of left chest mid part closed to the back midline covering area 6 c.m. x 4 c.m.
(2) Two fire-arm wounds of entry with inverted margins 1 c.m. x 1 c.m. On the back of right chest mid part just closed to the mid line covering area 5 c.m. x 3 c.m.
(3) A fire-arm wound of entry 1 c.m. x 1 c.m. With inverted margins on the back of left abdomen upper part which made an exit wound 2 c.m. x 2 c.m. On the outer back of right abdomen, of upper part.
' According to the doctor all the injuries were ante-mortem and caused with fire-arm. Death occurred due to severe shock, haemorrhage leading to cardio respiratory failure. All the injuries collectively and individually were sufficient to cause death. The time between the death and injuries was immediate and the time between death and post-mortem examination was within 24 hours. Exh.P.A. Is the post-mortem report. Muhammad Aslam P.W.2 recorded formal F.I.R.
Exh.P.B./1 on the basis of complaint Exh.P.B. He also deposed about the safe custody of sealed parcels containing, blood-stained earth, crime-empty, gun and pistol in the Malkhana of the police station. Khadim Hussain P.W.3 escorted the dead body of Muhammad Tufail deceased to Civil Hospital, Sheikhupuia for post-mortem examination. Jaffar Hussain P.W.4 identified the dead body of the deceased at the time of post-mortem examination. Muhammad Boota P.W.5 is the witness of recovery of .30 bore pistol and five bullets from the Dera of Rana Munir on the pointation of Iftikhar Ahmad accused. Suleman P.W.6 deposed that in the month of Sawan of previous year Nazar .Ahmad P.W. Came to his house for purchasing buffalo-es. He along with Nazar Muhammad proceeded towards Gangapur Kalian but they could not purchase buffaloes. At Sham Waila, they went to Dhari of Ghama, where they spent night. At morning time, they proceeded from the said Dhari towards their house. When they reached at some distance near the canal, five persons having fire-arms confronted., them. Three persons among them were having muffled their faces while Iftikhar Ahmad alias Khari accused and Muhammad Ashraf accused present in the Court were not having muffled their faces. He deposed that he identified them then and there. He further deposed that he inquired from them that from where they were coming. Iftikhar accused, replied in angry mood and asked him to get aside as one person was murdered by them. He further deposed that they went to their house. On the said day, at 4-00 p.m. They were informed that Tufail was murdered. He went towards police station, where he identified Tufail deceased. Muhammad Sarwar P.W.7 is the witness of recovery of pump action gun P.1 and six cartridges P.2/1-6 (memo. Exh. P. B.) recovered on the pointation of Muhammad Ashraf accused. Amjad Ali, A.S.-I. P.W.8 is the complainant and an eyewitness of the occurrence. He reiterated the contents of the F.I.R. He also deposed that he collected three empties of .12 bore gun vide memo. Exh. P. E. , prepared injury statement Exh. P. F. , inquest report Exh.P. G. And application Exh.P.H. Muhammad Saleem driver of the vehicle appeared as P.W.9 and corroborated the statement of complainant. Khan' Muhammad P.W.10 deposed that persons from the accused party had approached him to intervene.
Muhammad Ashraf S.-I., P.W.11 conducted investigation in the case. Muhammad Afzal Inspector P.
W.13 deposed that he had arrested Muhammad Ashraf, Iftikhar and Rizwan accused from their house. On 8-8-2004 he obtained their physical remand during which Rizwan accused recovered .12 bore gun from the graveyard Mora Klan. He also took into his possession pistol, five bullets, pump action gun al th six cartridges vide memo. Exh.P.C. And got recovered Iftikhar and Ashraf accused during investigation. Falak Sher, Patwari who prepared site plan Exh.P.F. And Exh.P.F./1 of the place of occurrence appeared as P.W.14. Hamid Raza who transmitted the sealed parcels to the office of Chemical Examiner appeared as P.W.15. The learned Public Prosecutor after tendering in evidence reports of the Chemical Examiner Exh.P.K. And that of the Serologist Exh.P.L., closed the case of prosecution.
4. After conclusion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. Wherein Muhammad Ashraf accused in reply to a question that "why this case against you and why the P.Ws. Have deposed against you?" stated as under:-- "Police had apprehended many persons apart from me regarding this case and after getting money from them, the, police released other persons. While I would not pay money to the police and a police employee was murdered in this occurrence due to that police was to involve in this case some one to finalize the investigation and due to that I was involved in this case falsely."
' Iftikhar accused adopted the aforesaid statement of Muhammad Ashraf accused. Both the accused neither opted to appear as their own witnesses under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
5. Learned counsel for the appellants submits that the prosecutions has miserably failed to prove its case beyond any shadow of reasonable doubt. There is no direct evidence against the appellants and the prosecution has tried to establish its case on the basis of extrajudicial confession which is a weak type of evidence. Even Khan Muhammad P.W.10 has not supported the statement of Suleman P.W.6, the witness of extra-judicial confession. He further submits that the occurrence took place in the dark night, therefore, none of the P.Ws. Had seen the occurrence, as such both the appellants are entitled to acquittal.
6. Learned Deputy Prosecutor-General while supporting the impugned judgment submits that the evidence of Suleman P.W.6 is trustworthy as he had identified both the appellants on the morning of this occurrence when the accused were confronted them where Iftikhar accused said that get aside as one person was murdered by them. He further submits that the prosecution has fully established its case against the appellants and the learned trial Court has rightly convicted them.
7. We have heard the learned counsel for the parties and have also perused the record. It is an admitted fact that the occurrence took place at about 3-30 a.m. In the dark night. The appellants were not nominated in the F.I.R. And there is no direct evidence connecting the appellants with the commission of crime. The only evidence against the appellants is that of Suleman P.W.6 which is of extra-judicial confession of the appellants made before him. His statement was not corroborated by any witness and in such circumstances the statement of P.W.6 cannot be believed for convicting the appellants on a capital charge. The said witness admitted in his statement in the categorical terms that the accused were not having any friendly terms with him. He also admitted that his house or land is not situated in Moza Haft Mother from where the accused belonged. He also admitted that his village is at a distance of 5/7 miles from the village of accused. He also admitted that the accused had not named the deceased at the time of confrontation of the accused with him. Khan Muhammad P.W.10 also admitted in unequivocal terms in his cross- examination that the relatives of accused had never come to him for effecting compromise. Munir and Sarwar had not come to me but they had gone to Hayat and Hayat came to me. He also stated that it is correct that accused, their fathers, Rana Munir and Sarwar had not stated before him that Tufail was murdered by the accused. Neither the complainant nor any other witness identified the accused persons. The recoveries effected from the accused by the police are immaterial for the reason that the police did not send the empties recovered from the spot to the Forensic Science Laboratory for matching as such, no reliance can be placed on the evidence of recovery of weapons from the accused persons. The occurrence took place at dark night, the accused who were five in number were on different places at the time of occurrence. No specific injuries have been attributed to the appellants. From the prosecution evidence it is clear that the prosecution has miserably failed to establish its case beyond any reasonable shadow of doubt and the learned trial Court has erred in convicting the appellants on the basis of evidence of P.W.6.
8. For what has been discussed above, we are of the considered view that the prosecution has failed to established its case against the appellants beyond any reasonable shadow of doubt and the conviction and sentence of the appellants is not sustainable. This appeal is allowed, the impugned judgment is and set aside and both the appellants are acquitted of the charges. They may be released forthwith if not required to be detained in any other case.