JAVED IQBAL, J. -- These appeals, with leave of the Court, are directed against the judgments dated 3.7.2002 passed by learned Division Bench of the Lahore High Court, Lahore in Criminal Appeal No, 1033/2001 and Criminal Appeal NO. 1034/2001 whereby the conviction and sentences awarded by the learned Judge, Special Court, Lahore-IV (constituted under the Anti-Terrorism Act, 1997) have been kept intact. T he details of conviction and sentences awarded to the appellants are as under:-- (Case F.I.R. No, 139/2000. dated 20.4.2000. P.S. Goqera, Distt. Okara] ' U/S. 302(2) r/w S. 34, PPC: ' Both sentenced to death.
' U/S. 544-A. Cr.P.C: ' Rs, 100,000/- each as compensation to the legal heirs of deceased, if recovered.
' U.S. 392/34. PPC: 10 years' R.I. each, fine of Rs, 25,000/- each and in default to undergo further R.I. for six months each.
' U/S. 342. PPC: ' One year's R.I. each and fine of Rs, 1000/- each.
Case F.I.R. No, 140/2000. dated 20.4.2000. P.S. Goqera, Distt. Okara)
' U/S. 324, PPC: 10 years' R.I. each., fine of Rs, 25,000/- each and in default to undergo further R.I. for six months each.
' U/S. 353. PPC: 2 years' R.I. each, fine of Rs, 25,000/- each and in default to undergo further R.I. for six months each.
' U/S. 412. PPC: ' Imprisonment for life each, fine of Rs, 50,000/- each and in default to undergo further R.I. for two years each.
Muhammad Ashraf (appellant) has also been convicted u/s. 13 of the Arms Ordinance and sentenced to seven years R.I.
' The sentences awarded have been ordered to run concurrently and the appellants have been allowed the benefit of Section 382-B, Cr.P.C.
2. Since common questions of law and facts are involved, therefore, we propose to dispose of the above captioned appeals by this single judgment.
3. Leave to appeal was granted by means of order dated 29.9.2003 which alongwith order dated 24.4.2003 being part of the same are reproduced herein below in order to appreciate the legal and factual aspects of the case:-- "These petitions came up for hearing on 24.4.2003 when the same were dismissed by announcing verbal order, ln pursuance of detail order of even date petitions are fixed for rehearing for the reasons mentioned in the above-said order.
2. We have heard the learned counsel for the petitioner and have gone through the available record including the impugned judgment carefully. On having gone through the facts and circumstances of the case, which have already been mentioned in the above-said order, we are of th opinion that these cases require further consideration in the interest of justice, therefore, leave to appeal is granted, The order dated 24.4.2003 may be read as the part of this leave granting order".
NOTE FOR PERUSAL OF HON'BLE JUDGES "At the conclusion of the hearing we had orally announced an order of dismissal of both the petitions but before signing the prepared order we had reconsidered the position.
' At the very outset it is to be seen that question for consideration is as to whether petitioners along with co-accused Nasir and Yasin have committed the murder of Muhammad Anwar Shah bank guard, In this behalf PW Muhammad Ashraf Bank Manager testified the contents of F.I.R.
(Ex.PB/1),and proved that accused persons including the petitioners made their entry in the bank on the pretext of depositing money. No longer they Were allowed entry in the bank they raised their weapons and ordered the bank employees to hands up, as such all of them raised their hands up due to fear of death. Accused Yasin snatched pump action gun from bank guard Mazher Ikram.
Meanwhile, other security guard Muhammad Anwar Shah seeing the accused came out of security box on seeing whom Muhammad Ashraf son of Mehanqav Khan present in the bank fired two shots which hit him on his forehead and the next fire hit the hair of head. Security Guard Muhammad Anwar expired at the spot. After this petitioner Muhammad Ashraf along with his accomplice Muhammad Nasir since dead) entered in the cash counter and forcibly collected and put the cash in the bag. Then both of them ordered Uaqat All, Cashier and Muhammad Tufail Second Officer to i open the strong room. Both the bank employees resisted but the accused injured them by hitting pistol butts. Bank employees became frightened and opened the strong room. Petitioner Ashraf and Nasir (since dead) collected the cash from the strong room. Meanwhile the witness pushed bank alarm button due to which people of the village gathered around the bank and the four accused seeing the people ran away in their car along with looted money making aerial firing towards Okara. On-counting the witness found a sum of Rs, 1,67,193/-missing.
' The prosecution case as it has been set up before the Trial Court prima facia reveals that Muhammad Anwar Shah was allegedly murdered by Muhammad Ashraf son of Mehangay Khan as he had fired upon him with a .30 bore pistol recovered from his possession subsequently vide Ex.PH and the empties recovered from inside the. bank wedded with incriminating Pistol Article P-10, therefore, murder of Muhammad Anwar Shah can be attributed to Muhammad Ashraf son of Mehangay Khan. So far as dacoity in the bank is concerned in this behalf as well prosecution has attributed overt-act to Muhammad Ashraf and Muhammad Nasir (since dead). As far as petitioner Riaz Ahmad and co-accused Yasin are concerned no .overt act either in the commission of the murder of Muhammad Anwar Shah or in the dacoity has been attributed to them. Subsequently when an encounter took place at the spot petitioner Muhammad Ashraf son of Mehangay Khan was arrested whereas two persons namely Muhammad Nasir and Yasin were dead. As far. as petitioner Riaz Ahamd is concerned there As no indication that as to under what circumstances from where he was arrested. Perusal qf 'rs;|pveiY t^*i^o:; Ex.PK indicates - that a pump action gift was tepovered fr6m him but perusal of this document indicates that name of Riaz Ahmad was inserted subsequently with different ink. Similarly, Ch. Muhammad Ashraf, I.O. has not deposed about the date of arrest of the accused, lt may be noted that Muhammad Ashraf had disclosed about the names of other co-accused including Riaz, Yasin and Yasir (since dead). Needless to mention here that statement of petitioner Muhammad Ashraf before the police is not admissible under the provisions of Article 46 of Qanoon-e-Shahadat Order. lt would also be seen that PWs Uaqat Ali and Muhammad Tufail in their statements have not stated that petitioner Riaz Ahmad fired upon the police party. According to their version petitioner Riaz Ahamd was lying semi- conscious, lt is also alleged that - both Ashraf and Riaz Ahmad received injuries, as such they were sent to hospital for treatment but neither any medical evidence has been produced nor PW Dr. Fayyaz Ahmad Qaisar has deposed in this behalf. On the other hand impugned judgment of the High Court reveals that Muhammad Ashraf and Riaz were arrested on May 2000 and 28th June, 2000 respectively after their discharge from the hospital, ln this behalf Ch. Muhammad Ashraf, Inspector/I.O. has only stated that he sent both the injured accused for first aid treatment under the escort of the police officials, ln cross-examination he has also shown arrest of Muhammad Ashraf son of Mehangay Khan after his discharge from D.H.Q. Hospital Okara. As far as petitioner Riaz Ahmad, is concerned his arrest was shown on 28th June 2000. The statement so made by him seems to be incorrect because if he had arrested Muhammad Ashraf and Riaz Ahmad immediately after the encounter he would have shown their arrest as injured accused but showing their arrest particularly of petitioner Riaz Ahmad on 28.5.2000 gives rise to some suspicion because the defence case is that he was lifted from his house and falsely involved in the commission of the offence. Therefore, it would be appropriate if the case of both the petitioners is enlisted in Court for re-hearing with notice to learned counsel for petitioners as well as Advocate General, Punjab. Order accordingly".
4. Mr. Abdul Rashid Awan, learned ASC entered appearance on behalf of the appellants and contended vehemently that legal and factual aspects and the evidence which has come on record have not been appreciated in its true perspective which resulted in serious miscarriage of justice, lt is also contended that there are material contradictions in the statements of Liaqat Ali (P.W.10) and Muhammad Tufail (P.W.12) which went unnoticed by the learned Division Bench of the High Court causing serious prejudice against the appellants and more so it has been ignored completely that medical evidence does not support the eye account and on this score alone the statements of eye-witnesses namely jiaqat Ali1 (P.W.10) and Muhammad Tufail (P.W.12) could have been discarded, lt is argued that the defence version has not been kept in juxtaposition which ought to have been examined in-depth but could not be done for the reasons best known to the learned High Court, lt is also contended that the identification parade was never got conducted and identification of the appellants is doubtful and benefit whereof should have been given to the appellants, lt is also pointed out that no case could have been registered under Section 7 of the Anti-Terrorism Act, 1997 as it could not have been made applicable in view of the dictum laid down in case titled Basharat v. Special Judge, Anti- Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199).
5. Mian Asif Mumtaz, teamed Deputy Prosecutor General entered appearance for the State and strenuously controverted the view-point as portraited on behalf of the appellants by Mr. Abdul Rashid Awan, learned ASC with the submission that prosecution has proved the guilt to the hilt while producing cogent and concrete evidence which has rightly been considered by the learned Trial and Appellate Courts, ln this regard the statements of Liaqat Ali (P.W-10) and Muhammad Tufail (P.W.12) have been referred by whom all the details of the alleged incident were furnished in a comprehensive manner and they stood firm to the test cross-examination and nothing beneficial could be Textracted rendering any help to the appellants, lt is further argued that in view of the factum of recovery, lodging of F.I.R, with promptitude and un rebutted eye account duly supported by medical evidence, the prosecution has established its case and no interference whatsoever is required in the judgment impugned being unexceptionable.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in 1 the light of the relevant previsions of law and record of the case. The judgments of learned Trial and Appellate Courts have been perused with care and caution. A careful scrutiny of the prosecution evidence by keeping the defence version in juxtaposition would reveal that prosecution has established the case beyond shadow of doubt against Muhammad Ashraf (appellant). We intend to deal with the case of Riaz Ahmad (appellant separately, In so far as Muhammad Ashraf (appellant) is concerned, a pivotal and key role has been attributed to him in the commission of alleged offence. An in- depth scrutiny of the statement of Uaqat Ali (P.W.10) would reveal that he identify Yasin who snatched the Pump Action Gun from Mazhar Ikrajrn, Bank Guard arid when Muhammad Anwar Shah (SMS Guard) came out from the Security Box duly armed with gun, Muhammad Ashraf son' of Mehangay Khan (appellant) fired with his pistol which hit Muhammad Anwar Shah at his forehead who succor be to the injuries instantaneously. Uaqat Ali (P.W.10) has further pointed out that Muhammad Ashraf (appellant) approached the cash counter along with co-accused namely /Nasir (who subsequently died in an encounter) and snatched cash available on gun point by putting the same in the bag. It is also stated by Uaqat Ali (P.W.10) that Muhammad Ashraf (appellant) and Nasir (since dead) directed Muhammad Tufail (Second Officer of the Bank) to open the strong room and on his resistance, Muhammad Ashraf (appellant) hit him with the butt of his pistol which hit on the back side of his head and also hit Muhammad' Tufail (P.W.12) on his forehead near the eye and due to fear, the strong room of the Bank was opened and Muhammad Ashraf (appellant) and Nasir (since dead) have collected the cash amount of Rs, 1,50,000/- from the safe placed in the strong room on gun point. Uaqat Ali (P.W.10); has also mentioned all the details regarding apprehension of the appellants as a result of encounter, ln the same wake of events, we have also scrutinized the statement of Muhammad Tufail (P.W.12) who has supported Liaqat Ali (P.W.10) on all material particulars. He has made it abundant clear that Muhammad Yasin snatched the gun from Mazhar Ikram (Security Guard) and on arrival of Muhammad Anwar Shah (Security Guard), Muhammad Ashraf (appellant) fired which hit on his forehead which resulted into his instant death, lt is alsp stated by Muhammad Tufail (P.W.12), that Muhammad Ashraf (appellant) along with co-accused Nasir (deceased), forcibly took the cash from the cash counter at gun point got opened the strong room and on resistance, hit him and Liaqat Ali (P.W.10) with buff of the pistol and took cash from the safe after getting it unlocked which was put into a bag. Muhammad Tufail (P.W.12) has furnished all the details qua encounter and apprehension of the appellants in his statement. On careful scrutiny of the statements of Liaqat Ali (P.W.10) and Muhammad Tufaii (PW-12) we are of the considered opinion that no role whatsoever has been attributed to Riaz Ahmad (appellant) either for the commission of murder of Muhammad Anwar Shah (Security Guard) or the commission of dacoity, It has been made abundant clear by Muhammad Tufail (P.W.12) that the looted amount was put in his bag by Muhammad Ashraf (appellant) who got opened the strong room on gun point. The alleged looted amount was not recovered from Riaz Ahmad (appellant). The evidence which has come against Riaz Ahmad (appellant) is not sufficient to award conviction being vague and sketchy, In fact it remained shrouded in mystery that how Riaz Ahmad (appellant) was arrested and as to whether he was got medically examined or otherwise? No doubt that according to the prosecution, Riaz Ahmad (appellant) was found lying semi-conscious in an injured condition but the statement of Dr. Fayyaz (P.W.6) is silent regarding the injuries of Riaz Ahmad (appellant) allegedly received as a result of encounter. The statement of Ch. Muhammad Ashraf, Inspector/I.O. (PW.14) is also silent about certain important details qua Riaz Ahmad (appellant) regarding his arrest and the nature of injuries who has confined his statement only to the fact that Riaz Ahmad (appellant) was found in an injured condition and apprehended along with Muhammad Ashraf (appellant), It is amazing that the arrest of Riaz Ahmad (appellant) had been shown on 28.6.2000 which does not find support from the evidence which has come on record, according to which the arrest was made immediately after the encounter. The perusal of recovery memo. (Ex.PK) is indicative of the fact that Pump Action Gun was recovered from Riaz Ahmad (appellant), however, the genuineness and authenticity of the recovery memo, is not aboveboard as his name appears to have been inserted subsequently with different ink. We are conscious of the fact that Liaqat Ali (P.W. 10) has mentioned that Riaz Ahmad (appellant) was carrying a bag when he entered the Bank but no evidence has come on record as to whether it was ever utilized or otherwise because Muhammad Tufail (P.W. 12) has made it clear that the looted amount was put in a bag by Muhammad Ashraf (appellant) and no mention whatsoever has been made about Riaz Ahmad (appellant), In the light of above- mentioned discussion the only inescapable conclusion would be that case of Riaz Ahmad appellant is distinguishable from the case of Muhammad Ashraf (appellant) against whom convincing and forthright evidence has come on record connecting, him with the commission of alleged offence, In view of serious doubts as expressed herein above, benefit of the same can safely be given to Riaz Ahmad (appellant).
7. The prosecution has established the guilt of Muhammad Ashraf (appellant) to the hilt by producing worthy of credence eye account, factum recovery, lodging of F.I.R, with promptitude, medical evidence, report of Chemical Examiner (Ex.PU), report of Serologist (Sx.PU/1) and report of FSL (Ex.PV). The incriminating evidence has been scrutinized properly by the learned Trial Court, determination whereof has been upheld by the learned High Court which being unexceptionable does not call for any interference. Let we mention here at this juncture that the prime contention of learned ASC on behalf of appellants is that no charge could have been framed against the appellants under Section 7 of the Anti-Terrorism Act, 1997 which, according to him, cannot be made applicable in view of the peculiar circumstances of the case, In support of the above contention the learned ASC has referred the judgment passed by learned Division Bench of Lahore High Court, Lahore in case titled Basharat v. Special Judge, Anti-Terrorism Court Gujranwala (PLD 2004 Lahore 199) in oblivion of the fact that the said judgment was set aside by this Court while deciding the case of Mirza Shaukat Baig v. Shahid Jamil (PLD 2005 SC 530).- The attention of learned counsel when invited to the case of Shaukat Baig (supra) he did not press the above-mentioned contention.
8. In the light of what has been discussed herein above we are of the considered opinion that prosecution has established the guilt to the hilt qua Muhammad Ashraf (appellant), and the appeals to his extent are dismissed.
9. The case of Riaz Ahmad (appellant) as discussed herein above being distinguishable could not be proved by the prosecution and by extending benefit of doubt in his favour, the appeals to his extent are accepted and the judgments impugned as well as the conviction and sentences awarded to him are set aside. Riaz Ahmad (appellant) be released forthwith if net required in any other case.