' IJAZ AHMAD CHAUDHRY, J.--Through this single judgment we intend to dispose of Criminal Appeal No,664/2007, filed by Tanveer alias Teroo, Gulzar alias, Gulzari, Criminal Appeal No,655/2007, filed by Mujahid alias Mujahidi, Shahid alias Shadi alias Mocha and Criminal Appeal No,234-J/2007 filed by the aforesaid appellants including Mohsin alias Mohsini as all of them have arisen out of the same judgment dated 23-4-2007 passed by the learned Judge, Anti Terrorism Court No,1, Lahore, in case F.I.R. No,137/2005 dated 16-5-2005, registered under sections 302/ 324/ 353/186/148/149/109 P.P.C. And section 7 ATA, 1997 at Police Station Khangah Dogran, whereby he convicted all the appellants under sections 302/149 P.P.C. And sentenced them to imprisonment for life each. They were also convicted under section 7(a) of the ATA, 1997 and sentenced to imprisonment for life each with a fine of Rs,25,000 each. They were further convicted under section 148 P.P.C. And sentenced to three years each. They were also convicted under section 186/149, P.P.C. And sentenced to imprisonment for three months each, under section 7 (h) of ATA, 1997 imprisonment for five years each under section 7(c) of ATA 1997 imprisonment for fourteen years and under section 324/149, P.P.C. Ten years R.I. Each. All the sentences were ordered to run concurrently with benefit under section 382-B, Cr.P.C. They were also directed to pay Rs,5,00,000 each separately to the legal heirs of Shaukat Ali deceased as compensation.
2. Briefly the prosecution case is that Saeed Inspector/S.H.O. Police Station Khangah Dogran had lodged the complaint Exh.PB on 16-5-2005 at 5-15 p.m. Alleging therein that on the above said day he along with Zafar Ullah S.-I. Armed with G-3 rifle, Shah Ali A,S.-I armed with G-3 rifle, Bashir Ahmad, A.S.-I armed with G-3 rifle. Ghulam Mustafa A.S.-I. Armed with rifle, Abdul Hameed A.S.-I armed with rifle, Muhammad Arif/HC armed with rifle, Muhammad Akram armed with rifle, Ali Ahmad armed with rifle, Babar Zaman armed with rifle, Dilawar Hussain armed with rifle, Imtiaz Ahmad armed with rifle, Saeed Akhtar armed with rifle, Mushtaq Ahmad armed with rifle, Mujahid Inayat armed with rifle, Iftikhar Ahmad armed with rifle, Shaukat Ali armed with rifle and Naeem Ahmad armed with rifle were present for patrolling and for arrest of proclaimed offenders where he received a spy information that accused Shahid alias Mocha armed with 44 bore rifle, Tanveer alias Teroo armed with 222 bore rifle, Sarwar alias Sari armed with 44 bore rifle, Jamshed armed with 44 bore rifle, Mujahid alias Mujahidi armed with pump-action gun, Sarfraz armed with 7-MM rifle, Gulzar alias Gulzari armed with pump action, Mohsin alias Mohsini and 5/6 unknown accused armed with firearms were present at the house of Shahid alias Mocha and if raid is conducted they can be arrested. On this information a raiding party was constituted who conducted the raid whereupon the accused started firing towards the police. The police took shelter with the walls and fired in self-defence Naeem Ahmad constable received fire-short injuries on his right side and Shaukat Ali constable received fire-shot injury on his chest and they fell down. The accused persons while firing fled away.
3. After usual investigation the challan was submitted before the learned trial Court where all the accused were charge sheeted to which they did not plead guilty and the prosecution in order to establish their guilt examined as many as 17 witnesses out of whom Basharat Ali appeared as PW-1 and deposed that he had identified the dead body of Shaukat Ali deceased at the time of post- mortem examination. Muhammad Arif PW-2 escorted the dead body of the deceased Shaukat Ali deceased from Mayo Hospital, Lahore to the mortuary at Sheikhupura for autopsy. Mubarik Ali PW-3 transmitted the sealed parcels containing rifle and blood stained earth to the office of Chemical Examiner and F.S. Laboratory. He was also entrusted with the warrants of arrest of Sarwar, Sarfraz, Mohsin, Arif, Ashiq, Manzoor Exh. PM to Exh.PT for execution and also got published proclamations Exh.PU to Exh. PAA according to law. Muhammad Ashraf Sub-Inspector P.W.4 chalked out formal F.I.R. Exh. PB/1 on the basis of complainant Exh. P.B. And on 15-12-2006 he arrested Sarwar and Mohsin accused. Sarwar accused got recovered 9-mm pistol from near Hafizabad Chowk which was taken into his possession vide memo Ex.PB/2, Mohsin accused got recovered revolver vide memo Exh.P.C., Muhammad Ar shad Mehmood P. W.5 prepared site plans Exh.PD and Exh.PD/1.
Nasrullah P.W. 6 is a witness of recovery of pistol and .32 bore pistol on the pointation of Sarwar and Mohsin accused respectively vide memo. Exh.PB/2 and Exh. PC. Muhammad Akram P. W.7 deposed that on 16-5-2005 he alongwith Dilawar Hussain went towards village Salar Bhattian for execution of summons he saw Shahid alias Mocha, Tanveer Hussain alias Teroo along with Arif sitting at Dera and were talking with each other that if the police comes to village they will not allow them to go.
He also witnessed the recovery of 244 bore rifle on the pointation of Shahid and rifle on the pointation of Tanveer alias Tero taken into his possession by the Investigating Officer vide memo Exh.PE and Exh.PF respectively. Ali Ahmad PW-8 witnessed the recovery of .12 bore gun from Gulzar vide memo. Exh.PG. Dr. Mubasher Ahmad who conducted post mortem examination on the dead body of the deceased appeared as P.W.9 and found one injury on his person which was sufficient to cause death in the ordinary course of nature. Dr. Farooq Anwar Chaudhary who medically examined Shaukat Ali along with other doctors appeared as PW-i and found one injury on his person. Dilawar Hussain P.W.11 narrated the same story as narrated by Muhammad Akram PW-7, Naeem Ahmad P.W.12, Zafar Ullah P.W.13 and Nishan Ali P.W.14 furnished ocular account of the occurrence. Muhammad Akram PW-15 partly investigated the matter and on the disclosure made by Gulzar accused he took into his possession 12 bore gun vide memo Exh.P.S. Muhammad Aslam P.W. 16 also partly investigated the matter and arrested Mujahid, Tanveer and Shahid accused. He also took into his possession rifle vide memo. Exh.PE on the disclosure made by Shahid and also took into possession rifle on the disclosure of Tanveer vide memos Exh.PE and Exh.PF respectively.
Muhammad Javed P.W.17 identified the handwriting and signatures of Saeed Inspector/complainant who had died. Learned PP after tendering in evidence reports of Chemical Examiner Exh.PBB, Serologist Exh.PCC, Forensic Science Laboratory Exh.PDD and Exh.PEE closed the prosecution evidence whereafter the statements of the accused under section 342 Cr.P.C. Were recorded wherein they took the stand that they have falsely been implicated in the case. After conclusion of the trial, the learned trial Court while acquitting Muhammad Sarwar alias Sari convicted the appellants as stated above. Hence the present appeal.
4. Learned counsel for the appellants contends that the F.I.R. Was not recorded with such a promptitude as claimed by the prosecution as it has been mentioned in the F.I.R. That both the injured were got admitted in D.H.Q. Hospital Sheikhupura at 5-15 p.m. But according to the medico legal reports of Shaukat Ali and Naeem they were admitted in the hospital at 8-30 p.m. This fact negates the prosecution story and the registration of the case within the given time. It is further contended that all the three witnesses in their statements before the Court and before the police have not mentioned that the appellants were those who had fired and only their names have been mentioned in the statement that their names have been told by Saeed Inspector that the accused were present in the house of Shahid accused and when they reached the said house the firing was started and in such circumstances the ocular account furnished through the statements of three P.Ws. Has not been able to prove the case against the accused. It is also contended that the site plans also negate the prosecution story. It is also contended that P.W.14 admitted during cross- examination that all the police officials were armed with fire-arms and had resorted to firing but nobody had received injury from the accused side. The police also did not try to apprehend the accused who were firing. It lastly contended that since the prosecution has badly failed to prove case against the appellants, therefore, they may be acquitted.
5. Learned DPG while supporting the impugned judgment contends that there is sufficient evidence available on record to connect the appellants with the commission of the offence. All the appellants are nominated in the promptly lodged F.I.R. And they were specifically nominated by the witnesses in their statement before the police as well as before the trial Court and the learned trial Court has rightly convicted and sentenced them, as such, their appeals may be dismissed.
6. We have heard the learned counsel for the parties and also perused the record. Incident in the instant case allegedly took place on 16-5-2005 at 5-15 p.m. In the house of Shahid accused.
Muhammad Saeed Inspector/S.H.O. Prepared the complaint Exh.PB at 5-15 p.m. And the F.I.R. Was recorded at 5-35 p.m. And the story narrated in the F.I.R. Shows that the complaint was drafted before 5-30 p.m. And subsequently F.I.R. Was recorded at the given time but in the F.I.R. It has specifically been stated that both the injured Shaukat Ali and Naeem had been admitted in D.H.Q.
Hospital, Sheikhupura but Shaukat Ali injured was referred to Mayo Hospital, Lahore as his condition was serious. After the perusal of their M.L.Rs, it is found, that they were admitted in the D.H.Q.
Hospital Sheikhupura at 8-30 p.m. And before that Shaukat was not referred to the Mayo Hospital as per record and the M.L.R. So F.I.R. Was recorded after 9-00 p.m. With an unexplained delay and recording of the F.I.R. With promptitude has been falsified by the documents.
7. In order to prove the ocular account the prosecution produced Naeem Ahmad injured P.W.12, Zafar Ullah P.W.13 and Nishan Ali A.S.-I. P.W.14. None of the eye-witnesses have deposed that they knew the accused and they had seen them firing at the relevant time. Only they have made their statements to the extent of their presence with Muhammad Saeed Inspector/S.H.O. Who had received an information that the appellants were present in the house of Shahid and when they reached the house of Shahid the firing was started. They had not claimed that the accused persons present in the Court had actually fired at the police party. Vague statements have been made by the eyewitnesses as P.Ws. And in such circumstances, it cannot be said that the prosecution has been able to prove case against the accused through ocular account.
8. The recovery of crime weapons is legally inconsequential and immaterial as there is no report of the Forensic Science Laboratory on record whether the weapons recovered from the appellants had matched with the empties which were collected from the place of occurrence. It has not been proved that which weapon has been used by them during the incident.
9. It is settled law that to convict a person on capital charge, evidence should be of high quality and good standard which is not available in the present case as the prosecution was supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, A convincing and coherent evidence for purpose of awarding conviction but here in this case the prosecution evidence is not of such a character as stated above to sustain conviction of the appellants.
10. The upshot of the above discussion is that we are persuaded that the appellants have made out a case for their acquittal. In such circumstances, we allow all these appeals, set aside the impugned judgment and acquit all the appellants from all the charges. They shall be released forthwith if not required in any other criminal case.