SHAHID HAMEED DAR, J.---Tallat alias Arshad-appellant was tried for the charge of murder of three police-officials, namely, Salamat Ali 2293/C, Niaz Ali 2437/C and Abbas Khan, ASI, by the learned Judge, Anti-Terrorism Court No,II, Gujranwala, who vide judgment dated 19-8-2010, held him guilty under sections 396/149, 302(b)/149, 353/149, 224/149, 148, P.P.C. And sections 7(a),7(h), 21-L of the Anti- Terrorism Act, 1997 read with section 149, P.P.C. And sentenced him as under:--
(i) Under sections 396/149, P.P.C.: To death on three counts with fine of its 3,00,000 on each count or in default of payment thereof to undergo simple imprisonment for one year on each count.
(ii) Under sections 302(b)/149, P.P.C.: To death on three counts with further direction to pay Rs, 3,00,000 to the legal heirs of each deceased as compensation under section 544-A, Cr.P.C. Or in default to pay it, to undergo simple imprisonment for six months on each count.
(iii) Under section 7(a), A.T.A. Read with section 149, P.P.C.: To death on three counts with fine of Rs, 3,00,000 on each count or in default to pay it, to undergo simple imprisonment for one year on each count.
(iv) Under sections 353/149, P.P.C.: To undergo rigorous imprisonment for two years with fine of Rs,10,000 or in default to pay it, to undergo simple imprisonment for three months.
(v) Under sections 224/149, P.P.C.: To undergo rigorous imprisonment for two years with fine of Rs,10,000 or in default of its payment, to undergo simple imprisonment for three months.
(vi) Under section 7(h), A.T.A., 1997 read with section 149, P.P.C.: To undergo rigorous imprisonment for five years with fine of Rs,20,000 or in default of its payment, to undergo simple imprisonment for three months.
(vii) Under section 21-L, A.T.A., 1997: To undergo rigorous imprisonment for ten years with fine of Rs,20,000 or in default to pay it, to undergo simple imprisonment for six months.
(viii) Under section 148, P.P.C.: To undergo rigorous imprisonment for three years.
2. The condemned prisoner appealed and the case is also before us on reference under section 374, Cr.P.C. For confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference.
3. The prosecution story in brief as unfolded by Arshad Ali 564/C (complainant/P.W.6) in complaint (Exh.PD), is that, at 8-00 a.m. On 26-4-2007, he along with Abbas Khan ASI, Nasir Ali 336/C and Niaz Ali 2437/C, boarded prisoners van, bearing registration No,GAK/6101, driven by Salamat Ali 2293/C, along with nine under-trial prisoners, namely, Azadar Hussain son of Manzoor, accused in case F.I.R.
No,165/04, under sections 392/411, P.P.C., Police Station Saddar Wazirabad, Irfan son of Ghulam Qadir, accused in case F.I.R. No,282/06, under sections 392/411, P.P.C., Police Station Wandhu, Waqas son of Shafi, accused in case F.I.R. No,319/02, under sections 399/402, P.P.C., Police Station Peoples Colony, Jahangir son of Nazeer, accused in case F.I.R. No,324/04, under sections 324/452, Police Station Alipur Chatha, Mansha son of Sadiq, accused in case F.I.R. No,14/02, under sections 7/21/91, Police Station Sohdra, Mazhar Iqbal son of Shah Nawaz, accused in case-F.I.R. No,165/04, under sections 392/411, P.P.C., Police Station Saddar Wazirabad, Mubashar son of Manzoor, accused in case F.I.R. No,123/02, under sections 392/412. P.P.C., registered at Police Station City Wazirabad, Tallat alias Arshad (appellant) son of Raushan, accused in case F.I.R. No,222/03, under section 392, P.P.C., Police Station Ladhewala, Sajjad alias Munshi son of Nawaz, accused in case F.I.R. No,164/04, under sections 392/411, P.P.C., Police Station Saddar Wazirabad, for producing the UTPs before different courts at Wazirabad and Gujranwala; after having done so, while on their way back to Sialkot, when they reached near Nandipur canal bridge, at about 1-30 p.m., suddenly, a golden colour car ridden by three/four unknown armed men opened straight firing at the van; Salamat Ali 2293/C-driver stopped the van near a bridge; one of the accused in prisoners-van fell from the seat; his co-riders demanded water for him; the door of the van was opened to deliver a bottle of water to the accused, who within flash of a second pounced upon Nasir constable and Niaz constable and snatched from them their loaded official rifles; they also snatched keys of the handcuffs from Arshad Ali, constable (complainant) and jumped down from the prisoners-van; the police officials resisted whereon they started firing at them by means of official rifles, as a result of which driver Salamat Ali 2293/C, Niaz Ali 2437/C and Abbas Khan ASI got badly wounded; the accused sprinted towards embankment of the canal while raising lalkaras and making firing; he (complainant) attempted to catch one of the accused, who chewed his right index finger with his teeth; he immediately informed the control through wireless about the occurrence; on return to the vehicle, he found Niaz Ali 2437/C and Salamat Ali 2293/C-driver dead, whereas Abbas Khan ASI was in precarious condition, who was shifted to the hospital for treatment; he along with co-police officials belonging to the patrolling post started chasing the accused; in the meanwhile reinforcement reached there and they all besieged the entire area to haul-up the accused; the accused and the police clashed with each other near bridge of Nandipur canal, close to the embankment; in sequel to the exchange of firing seven of the accused were killed and other two absconded; Arif Mehmood, Inspector/SHO (P.W.17) scribed complaint (Exh.PD) on the statement of Arshad All 564/C (P.W.6), at 7-40 p.m., on 26-4-2007 and despatched it to the Police Station Aroop (Gujranwala) through Shahid lqbal 1166/C, on the basis whereof formal F.I.R. (Exh.PD/1) was drawn up by Maqsood Baig, ASI/DO (P.W.3), at 8-00 p.m., the same day.
4. After registration of the case, its investigation was entrusted to Zahoor Shaheen Inspector (P.W.14), who on receipt of information about the occurrence reached the venue of crime along with other police-officials, where police-encounter took place; when the firing stopped, Aril Mehmood Inspector (P.W.17) reduced into writing complaint (Exh.PD) on the statement of Arshad Ali 564/C (P.W.6), on the basis of which the formal F.I.R. (Exh.PD/1) was scribed; he (P.W.14) on receipt of copy of the F.I.R. Reached the place where police-encounter took place and prepared the visual- site-plan (Exh.PZZZ) thereof; he found the dead body of Azadar Hussain-accused with an SMG-rifle (P24) in its right hand; he found another SMG-rifle (P25) lying close to the dead body of Irfan- accused; five pistols (P26 to P30) were also found, one each lying near the dead bodies of the accused, Jahangir, Waqas, Muhammad Mansha, Mazhar Iqbal and Mubashar; he secured the said weapons vide separate recovery memos. Exh.PZ to Exh.PFF, duly attested by Muhammad Azam SI (P.W.12) and Imtiaz Hussain ASI P.W. (not produced); thereafter he took into possession the official- van No,6101/GAK, searched it, which resulted in recovery of eight handcuffs (P31/1-8) and one fitter (P32), which were seized vide memo. Exh.PQQ; during spot inspection, he collected blood stained earth from the places, where the dead bodies of Salamat Ali 2293/C and Niaz Ali 2437/C were lying and secured it vide separate recovery memos. Exh.PRR and Exh.PSS, respectively; he also collected blood stained earth from the place where Abbas Khan ASI received firearm injuries, vide recovery memo. Exh.PTT; he examined the dead bodies, nine in number, prepared their injury(ies) statements, inquest reports and applications for their postmortem examination (Exh.PUU to Exh.PXXX) respectively and despatched them to the mortuary for autopsy; on 30-4-2007, he received information about the expiry of Abbas Khan, ASI in Mayo Hospital, Lahore, so he went to the hospital, inspected the dead body, prepared its injury statement (Exh.PAAAA), inquest report (Exh.PBBBB), application for its postmortem examination (Exh.PCCCC) and despatched it to the mortuary for autopsy under the escort of Ali Ahmad 793/C (P.W.15), which was accordingly done the same day; he got prepared the site plans in scale Exh.PX and Exh.PY by Masood Ahmad Bhatti, draftsman (P.W.11). He searched for the accused but to no avail. Saif Ullah SI/I.O. (P.W.5) completed the procedure, for declaring the appellant and his run-away co-accused Sajjad alias Munshi the absconders under section 87, Cr.P.C.; On 3-7-2010, Ali Akbar SI (P.W.13) arrested Tallat alias Arshad (appellant), who during the course of interrogation led to the recovery of handcuff (P1) vide recovery memo. Exh.PC; On completion of the investigation, challan against the accused-appellant was submitted before the court for his trial in accordance with law.
5. The appellant on indictment pleaded not guilty and claimed a trial. The prosecution, in order to prove its case, produced nineteen witnesses, namely, Muhammad Iqbal 1242/C (P.W.1), Muhammad Anwar 647/C (P.W.2), Maqsood Baig, ASI (P.W.3), Waheedullah ASI (P.W.4), Saifullah, SI (P.W.5), Arshad Ali 564/C-complainant (P.W.6), Dr. Capt. Nisar Ahmad (P.W.7), Muhammad Bashir 379/C (P.W.8), Salamat Ali 547/C (P.W.9), Muhammad Iqbal (P.W.10), Masood Ahmad Bhatti, Draftsman (P.W.11), Muhammad Azam, SI (P.W.12), Ali Akbar, SI (P.W.13), Zahoor Shaheen Inspector (P.W.14), Ali Ahmad 793/C (P.W.15), Muhammad Shahbaz ASI (P.W.16), Arif Mehmood Inspector/SHO (P.W.17), Dr. Shabbir Hussain (P.W.18) and Dr. Ghulam Shabbir Tahir (P.W.19). Thereafter, the appellant was examined under section 342, Cr.P.C., whereby he professed his innocence in the matter and denied the allegations levelled against him. He did not opt to depose under section 340(2), Cr.P.C. Nor he opted to adduce evidence in defence. The contention adopted by him in reply to question as to why this case against him and why the P.Ws. Deposed against him, read as under:-- "I have falsely been involved in this case against the actual facts and circumstances. On the day of occurrence. I was produced in the Court in Gujranwala in connection with case F.I.R. No,222/03, under section 392, P.P.C., registered in P.S. Ladhaywala Warraich, Gujranwala. After producing me in the Court of learned Area Magistrate, when police van reached near Nandi Pur, Check Post and was stopped for fetching water to one of the accused present inside the van and when we were took in the patrolling post far fetching water, in the meanwhile unknown accused persons attacked on official prison van; due to heavy firing, I tried to escape to save my life from the check post. Neither, I was present in prisoner van nor I participated in the occurrence. Nothing was recovered from me during the investigation. I am innocent."
On conclusion of the trial, the learned trial Judge held him guilty of the offences charged and sentenced him as mentioned herein above.
6. After minutely perusing the record with the able assistance of learned counsel for the parties and hearing them all, it is painfully noted that ten (10) persons died in this case. As per prosecution's case, three police-officials, namely, driver Salamat Ali 2293/C, Niaz Ali 2437/C and Abbas Khan ASI lost their lives during the occurrence at the hands of the run-away accused, Azadar Hussain son of Manzoor, Irfan son of Ghulam Qadir, Waqas son of. Shafi, Jahangir son of Nazir, Mansha son of Sadiq, Mazhar Iqbal son of Shah Nawaz, Mubashar son of Manzoor, Tallat alias Arshad son of Raushan (appellant) and Sajjad alias Munshi son of Nawaz, seven out of whom were killed in an encounter with the police, at a place not far off from the place of murder of the police- officials and two including the appellant and Sajjad alias Munshi succeeded to flee the spot. All the deceased on the accused side as well as the run-away accused were under trial prisoners, who had been transported from District Jail, Sialkot in an official van, GAK-6101, Salamat Ali 2293/C (deceased) being its driver and Arshad Ali 564/C (complainant/P.W.6), Abbas Khan ASI (deceased), Niaz Ali 2437/C (deceased) being guards etc. For appearance before different courts at Wazirabad and Gujranwala. All the under trial prisoners after their appearance before the courts concerned were being driven back to District Jail Sialkot by the said official van, when it was fired at near Nandipur canal bridge at about 1-30 p.m. By three/four unknown armed car-riders, due to which driver Salamat Ali 2293/C stopped the vehicle near the bridge; the under trial prisoners demanded water for one of their fallen companion, on which the door of the van was opened to give them a bottle of water and then in a jiffy, all the prisoners attacked Nasir Ali constable, Niaz Ali constable and snatched from them their loaded rifles besides snatching keys of the handcuffs from Arshad Ali 564/C (complainant). They jumped from the vehicles and opened firing through official rifles at the police-party, killing above-said three police officials. One of the accused almost chewed the right index-finger of the complainant-police-official with his teeth. On arrival of the reinforcement, a hot-chase of the run-away accused started, which led to an encounter between the police and the accused near a bridge of Nandipur canal, Bhambowali, as a result of which seven of the accused were killed and two, one of them being the appellant, absconded.
7. Insofar as registration of F.I.R. (Exh.PD/1) is concerned, it was recorded by Maqsood Baig ASI/DO (P.W.3) at 8-00 p.m. On 26-4-2007, almost six and a half hours after the occurrence. The column No.4 of the formal F.I.R. Shows the distance of the police, station Aroop (Gujranwala) from the place of occurrence as eight kilometers. The prisoners-van was fired at by the unknown accused at 1-30 p.m. When did encounter between the police and the accused take place, it has not been mentioned by the complainant in complaint (Exh.PD). It has, however, been mentioned in police proceedings (Exh.PD/3) that the firing between the accused and the police-party continued for one and a half hour. The police proceedings appeared to have been scribed by the Inspector/SHO at 7- 40 p.m., the same day. The complainant Arshad Ali 564/C (P.W.6) has mentioned some glaring facts in his testimony by contending that his statement regarding the occurrence was recorded at 1-45 p.m. By Arif Mehmood, Inspector/SHO (P.W.17), who did so at a place, where prisoners-van was parked. He reiterated his stance that police remained present for about fifteen/twenty minutes at the place, where prisoners-van was stopped and it was the place where his statement was recorded, whereafter search of the accused by the police started. He further contended that it came to his knowledge later on that seven accused persons had been killed. He showed the obliviousness about the fact that run-away accused Sajjad alias Munshi had been killed in a police-encounter later on. He further contended that he remained present in the prisoner's van during "whole firing". Muhammad Azam SI (P.W.12) did not mention in his testimony as to when he along with other police officials reached the place of occurrence and when they spotted the run- away accused, before start of the police-encounter. He, however, maintained that the encounter with the accused continued for about one and half hour. Zahoor Shaheen, Inspector (P.W.14) introduced some surprising facts in his testimony as regards the time, when he got knowledge about the occurrence, being posted as Incharge Investigation at Police Station Aroop Gujranwala, which he mentioned as 7-00 p.m. And on receipt of this information he along with a heavy contingent of the police reached. Nandipur canal, where he found one prisoner-van, GAK-6101 parked. There he learnt that the escaped accused were present in the area of Bhambowali. He along with his co-police-officials reached there, where after police encounter took place with the accused. He has further contended, when firing stopped, Arif Khan Inspector/SHO (P.W.17) recorded the statement of Arshad Ali 564/C (complainant/ P.W.6). He in the same breath claimed that he received the copy of formal F.I.R. At 8-00 p.m. In cross-examination, he said that he reached the place where police-officials were murdered at about 7-15 p.m. And he chased the accused for about fifteen minutes. He surprised everyone by contending that cross-firing between the accused and the police continued for about fifteen minutes. According to this prosecution witness, the clash between the accused and the police may have started in between 7-15 p.m. To 7-30 p.m. Arif Mehmood Inspector/SHO (P.W.17) has deposed about receipt of wireless message at about 3- 00/4-00 p.m. About revolt and attack of the under trial prisoners on some police officials boarding the prisoners-van, whereon he reached the place of occurrence and recorded the statement of Arshad Ali 564/C (complainant/P.W.6), which was read over to him, who signed it in token of its correctness. The police proceedings (Exh.PD/3) recorded by this witness categorically show that the encounter between the accused and the police-party continued for 1/1-1/2 hours. If we keep in juxtaposition the depositions of Arshad Ali 564/C (complainant/P.W.6), Muhammad Azam SI (P.W.12), Zahoor Shaheen Inspector (P.W.14) and Arif Mehmood Inspector/SHO (P.W.17), it may be assessed that the time of registration of FIR (Exh.PD/1) as shown on its tenor is not precisely correct and some hanky-panky had been made by the police. If we believe the statement of P.W.16 and that of P.W.17 as regards the start of clash between the police and the accused and duration thereof, the said encounter may have finished around 9-15 p.m. To 9-30 p.m. The formal F.I.R. May not have been recorded earlier than 9-45 p.m. To 10-00 p.m. Some doubtful goings-on in this regard Cannot be ruled out.
8. Insofar as the ocular account furnished by Arshad Ali 564/C (complainant/P.W.6), Muhammad Azam, SI (P.W.12), Zahoor Shaheen, Inspector (P.W.14) and Arif Mehmood Inspector/SHO (P.W.17) is concerned, one thing is commonly available that seven of the run-away accused were killed in the police-encounter. So far as the run-away accused are concerned, they included Sajjad alias Munshi son of Nawaz and Tallat alias Arshad (appellant). It has been so mentioned in the paragraph 22 of the impugned judgment that Sajjad alias Munshi accused had been murdered in a police encounter later on. In this way, the appellant is the lone survivor of the entire episode. None of the witnesses forming the ocular account has attributed any specific role to the appellant nor can he be assumed to have fired at the police-party near the official-van or during the police encounter. The testimony rendered by Arshad Ali 564/C (P.W.6) does not divulge in any sense that the appellant had any link with the car-riders, who fired at the prisoners-van. He did not ask for a glass of water for any of his co-riders in the prisoners-van nor it was he who snatched the keys of the handcuffs from the complainant-police official, who was well aware of the identity of all the under trial prisoners and who mentioned in detail their particulars in his statement (Exh.PD), recorded by Arif Mehmood, Inspector/SHO (P.W.17). It is "discernible from the testimony of the complainant that the firing at the police party was made by the accused with the official-rifles, which were snatched from Nasir Ali constable P.W. (not produced) and Niaz Ali constable (deceased). When we look at the police proceedings (Exh.PD/3), scribed by Arif Mehmood, Inspector/SHO (P.W.17), we find that the official-rifles, both SMGs (Sub-machine-guns) were in the grip of right hands of the dead bodies of Azadar Hussain accused and Irfan accused. The police found five pistols of .30-bore each near or underneath or in the grip of the other dead bodies. None of the eyewitnesses has claimed that they saw the appellant engaged in an encounter with the police, which took place near a bridge of Nandipur canal, close to its embankment.
9. According to their testimonies, the eye-witnesses have claimed that the occurrence lasted for about 1-1/2 hours. None of them has said that it was only the police party, which fired at the hidden-accused rather they have categorically contended in their testimonies that the firing between the parties continued for 1/1-1/2 hour. If so, the police should have recovered hundreds of crime empties from the place of occurrence, but astonishingly the Investigating Officer failed to collect any such piece of evidence during spot inspection. Isn't it glaringly incredible? The accused must have eaten up the spent bullets, is it so? The place of occurrence was a deserted place, hence, no probability existed that due to rush of the people, the crime empties might have been lost. Should it be believed that all the accused after having been overpowered were done to death by the police? We find no report from the Ballistic Expert (Forensic Science Laboratory) on the record as to the weapon held and used by the deceased-accused and it is only because of the fact that no crime empty could be found during spot inspection by the Investigating Officer. The tenor of the occurrence as narrated by the eye-witnesses establishes the fact that attack on the police-party may have been spearheaded by Azadar Hussain-accused (deceased) and Irfan- accused (deceased), who most probably snatched the rifles (SMGs) from the said police-officials and keys of the handcuffs from the complainant. The story of police-encounter as narrated by the eye-witnesses does not disclose that the appellant accompanied those, who perished in the D encounter otherwise his fate must not have been different than that of the killed co-accused. The subsequent killing of Sajjad alias Munshi-accused in yet another police-encounter is an ample proof of it. The testimonies made by the eye-witnesses certainly established the factum of killing of three police-officials and seven run-away accused during the occurrence but it does not establish at all that the accused/appellant had community of intention with his disposed of co-accused or he did anything during the entire occurrence, which could render him culpable for the crime committed except for the fact that he slipped away in a situation of pandemonium, terror and sheer chaos. He has categorically contended under section 342, Cr.P.C. That due to firing all around he whisked away to save his life from the police-check-post and that he did not participate in the occurrence in any manner. The learned trial Court has observed in the impugned judgment that Tallat alias Arshad (appellant) and Sajjad alias Munshi-accused snatched keys from the complainant, Arshad Ali 564/C (P.W.6) and resorted to firing at the police, killed three of them and also participated in the encounter with the police before he made good his escape. The learned Deputy Prosecutor-General Punjab when put a query by the court as to the aforesaid finding of the learned trial court failed to collect any such evidence on the record, which might substantiate the said observation of the court. The ocular account in its present form does not connect the appellant with the commission of offence, hence, it cannot be trusted or relied on for sustaining his conviction and sentence.
10. So far as the evidence of abscondence of the accused/appellant rendered by. Muhammad Iqbal 1242/C (P.W.1), Saifullah SI (P.W.5) and Muhammad Shahbaz ASI (P.W.16) is concerned, it goes to show that Saifullah, SI (P.W.5) submitted an application (Exh.PE) for obtaining non-bailable warrants of arrest of accused Sajjad alias Munshi (since murdered) and that of Tallat alias Arshad (appellant), Exh.PF and Exh.PG, respectively and on obtainment entrusted them to Muhammad Shahbaz ASI (P.W.16) for execution, who, as per his testimony, went to the abodes of the accused and made reports on the back of warrants of arrest as Exh.PF/1 and Exh.PG/1. The process-server (P.W.16) admitted in his testimony that the reports prepared by him were not testified by any local inhabitant. He also admitted that "cutting, overwriting and manipulation are visible on the back side of warrants of arrest of accused". He also admitted not to have mentioned the date of submission of his report Exh.PG/I. Saifullah SI (P.W.5) there after submitted an application (Exh.PH) for obtaining proclamations of the accused, Tallat alias Arshad (appellant) and Sajjad alias Munshi (since murdered) and on obtainment entrusted them (Exh.PA and Exh.PB, respectively) to Muhammad Iqbal 1242/C (P.W.1) for execution, who executed the said proclamations vide his reports Exhs.PA/1 and Exh.PB/1. He admitted in his testimony that the reports made by him were not testified by any person of the locality. He showed unawareness as to who lived on the left or right side of the houses of the accused. Saifullah SI (P.W.5) admitted in his testimony as correct all the faults including cuttings, over-writings and manipulations in the reports made on the reverse of the non-bailable warrants of the accused. He also admitted as correct that he could not "give any reason for none signing the proclamations mentioned above". He replied in affirmative to suggestion that initially name of some other police-official was written on the back side of the warrants of arrest of the accused and after erasing it, the name of Shahbaz Ali ASI (P.W.16) had been mentioned. He again answered in affirmative that someone else than Shahbaz Ali ASI (P.W.6) had signed the reports on the back of non-bailable warrants of arrest. The evidence rendered by the above-said witnesses carries no value in the eyes of law nor can it be relied upon by any reason. Hence, brushed-aside.
11. So far as the medical evidence tendered by Dr. Capt. Nisar Ahmad (P.W.7), Dr. Shabbir Hussain (P.W.18) and Dr. Ghulam Shabbir Tahir (P.W.19) is concerned, it hardly needs any discussion as the learned defence counsel preferred not to cross-examine anyone of them and rightly so. Even if the entire evidence is believed to be true, which in fact is true, it cannot identify the author(s) of the injuries sustained by the deceased. There cannot be two opinions about the fact that the medical evidence may divulge every necessary detail as to the kind and nature of bodily injuries received by a living or a dead-person and the weapon used for infliction of such injuries, but who had done so, is not the subject of the medical evidence.#
12. So far as the recovery of official sub-machine-guns/rifles and five pistols of .30-bore each from the place of occurrence, where the dead bodies stood grounded, is concerned it is a factor which hardly connects the appellant with the commission of offence. These weapons had not been despatched to the office of Forensic Science Laboratory for comparison, as Investigating Officer failed to collect any crime empty from the spot. All the users of the said weapons were killed in the police-encounter, immediately after they escaped from police-custody. The Investigating Officer's failure to find any crime empty from the place of occurrence is, however, a startling factor, which has not been explained by the prosecution through any evidence. There is another item, a handcuff (P1), the recovery whereof has been attributed to the appellant. He got it recovered from the bushes, grown on embankment of Nandipur canal, on 6-7-2010 i,e, almost 3-1/4 years after the occurrence. This item was taken into possession by the Investigating Officer vide recovery memo.
(Exh.PC), which was attested by Muhammad Anwar 647/C (P.W.2) and Muhammad Saleem 1328/C P.W. (not produced). It was Ali Akbar SI (P.W.13), who acted as the Investigating Officer on 6-7-2010.
He (P.W.13) admitted in cross-examination that the handcuff (P1) was without chain and he did not prepare any parcel of it. He admitted it as correct that the handcuff (P1) was a commonly available item and it bore no number or name of the accused, it was meant for. He also admitted in his testimony that the place of recovery of the handcuff was an open place, which was accessible to all and sundry. He mentioned a crucial fact in his testimony that the handcuff (P1) was not rustic.
The last deposition made by this witness as to the handcuff being not rustic, speaks volumes about the fabrication of a false piece of evidence by the prosecution. The handcuff being a metalled- item, remained exposed to ever changing weather-conditions for over three years, still it did not catch the rust. Doesn't it look strange, certainly yes. Muhammad Anwar 647/C (P.W.2) also admitted as correct all that, having been admitted so by the Investigating Officer (P.W.13). This piece of evidence has apparently been manoeuvred by the prosecution to strengthen its case against the appellant. Being inconsequential, it means nothing.
13. So far as the defence plea of the appellant adopted by him in his statement under section 342, Cr.P.C. Is concerned, he has categorically contended that due to heavy firing at the spot, he escaped from the check-post, Nandipur for saving his life. He further contended that he did not participate in the occurrence and he was innocent. As observed earlier, while discussing the ocular account in the preceding paragraphs, it can safely be held that the fears of the appellant as to his own safety, were not uncalled for, because his co-runner Sajjad alias Munshi, who also survived the turmoil, was later on killed by the police in an encounter, which fact finds mentioned in paragraph 22 of the impugned judgment. The appellant may also have met with a similar end, had he fallen into the hands of the police at the time of occurrence. It was a psychological calculation of the appellant as a human being to save himself, which time proved correct. The defence plea of the appellant that the fear motivated him to runaway for his life cannot be undermined I by merely looking at the dead bodies fallen here and there on both the sides, certainly for none of the fault of the appellant. Even a brave of the bravest would have slipped away from such a horrendous scene and appellant did no wrong, when he also did so, despite being not the bravest.
14. The nutshell of the discussion made herein above categorically leads to believe that the prosecution has badly failed to prove all the charges against the appellant, he had been indicted for, beyond reasonable shadows of doubt. The impugned judgment has been passed merely on conjectures and surmises without having any respect and care for the evidence available on the record or for the basic principles of administration of criminal justice. The reasons recorded by the trial court in recording conviction and sentence of the appellant are not sustainable, rather to be ignored and written-off straightaway. No other option is left but to accept this appeal, which is accordingly done. The conviction/ sentence of the appellant is set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case.
15. The death sentence awarded to the appellant is NOT confirmed and Capital Sentence Reference is answered in the negative.