RAO NAEEM HASHIM KHAN, J.---Bashir (42) Sid (7p),, Kazim (26), Sajwara (30), Khawar Shah (25) and Ghias Shah (221 faced till in a criminal case registered against them vide F.I.R. No. 179 of 1992 dated 30-4-1992 at Police Station Hujra Shah Moqeem under segti0n 436/398/149, P.P.C. The Judge, Special Court No.3 of Suppression of Terrorist Activities, Lahore Division, Lahore, vide judgment dated 22-12-1993 acquitted Khawar Shah and Ghias Shah giving them the benefit of doubt, while convicted Bashir, Said, Kazim and Sajawara under section 436, P.P.C. And sentenced triem to 5 years' R.I. Each and fine of Rs.10,000 each under section 436, P.P.C, in default of fine thereof to undergo further one year.
In case of realisation of fiune half of it shall be defrayed to the complainant as a compensation under section 544-A; Cr.P.C. The convicts have appealed through criminal appeal, in hand.
2. The prosecution story in brief as disclosed in F. I. R. (Exh. P. A.) lodged by Karamat Ullah (P.W.2) was to the effect that on 27-4-1992 while he along with his sons Muhammad Amjad and Ajmal Ali and his brother namely, Ghulam Haider and Shaukat was sleeping in the ' Dhari' with their cattle. At about Fajr prayers time, he woke up on hearing the noise of a tractor trolley and saw Ghias Shah, Khawar Shah, Kazim, Sajwara, Said and Bashir accused standing there. Kazim was armed with a gun, Sajwara was empty-handed and remaining accused were armed with rifles. They started firing. The complainant and his companions took shelter in a watercourse nearby. Ghias Shah accused picked out a gallon of petrol from his car and sprinkled it at the ' Chappar' at his Dhari.
Khawar Shah accused set the Chappar/house on fire through a match--stick. The accused then started pulling out the 'toka' gear machine. Kazim accused brought out the tractor-trolley near the gear-machine and placed it at the trolley. The accused also removed his 3 ploughs, Kazim, Sajwara and Bashir accused, took his bicycle, two he-goats by loading these in the tractor-trolley and went away. According to the complainant, the burnt property was valued at Rs.5,000. The motive for the occurrence was the dispute regarding agricultural land pending in the Court for the last 18 years between the complainant and the appellants Said and Bashir who wanted, to take forcible possession of the land.
2. The occurrence took placed on 27-4-1992 at Fajrwela in the area of Sher Garb, 9 kilometres from Police Station Hujra Shah Moqeem. F.I.R. (Exh. P.A.) was lodged by Karamat Ullah (P.W.2) on 30-4- 1991 at 9-30 p.m. Recorded by Muhammad Murtaza, H.C. (Additional Moharrir, P.W.1).
3. Muhammad Aslam, A.S.1. (P.W.8) on 30-4-1992 went to the spot and prepared site plan of the occurrence (Exh. P.C.). He took into possession one tin (P.1) and few pieces of wood (P.2/1-8) vide recovery memo. (Exh. P.D.). He also recorded the statements of Karamat Ullah (P. W.2) and Muhammad Iqbal (P. W. Not produced) pertaining to the aforementioned recovery under section 161, Cr.P.C. Thereafter, the investigation was entrusted to Muhammad Ashraf Inspector (P.W.5) who recorded the statement of Ajmal, Amjad Ali, Shaukat Ali and Ghulam Haider P.Ws. Under section 161, Cr.P.C. On 10-5-1992. Fie also arrested Said and Bashir appellants on 14-5-1992. Khan Muhammad Cheema, S.I. Also conducted the investigation of the case, submitted challan against Said and Bashir on 21-6-1992 and obtained warrants of arrest against the remaining accused and entrusted the same for execution to Muhammad Ashiq, A.S.I. (P.W.4). Muhammad Ashiq, A.S.I. (P.W.4) arrested Sajwara on 29-6-992. Khan Muhammad Cheema, S.I. (P.W.9) arrested Kazim on 3-7-1992, Khawar Shah and Ghias Shah on 8-7-1992, and after completion of investigation submitted the complete challan in the Court on 11-7-1992.
4. The ocular account was furnished by Karamat Ullah complainant (P. W.2), Muhammad Ajmal (P.
W.3) and Shaukat Ali (P. W.7).
5. At the conclusion of prosecution evidence the appellants (Sajwara, Kazim, Said and Bashir Ahmad) were examined without oath. They refuted the prosecution allegation and pleaded innocence. However, they did not appear in their defence under section 340(2), Cr.P.C. But produced D. W.1 Gulzar Sibtain, Muhammad Younas D.W.2 and Muhammad Hanif D.W.3 in their defence during the trial.
6. It is submitted by the learned counsel for the appellants that Karamat Ullah, Muhammad Ajmal and Shaukat Ali. P.Ws. Are closely related inter se, interested witnesses and inimical towards the appellants, and therefore, their evidence is not reliable, that there are material contradictions in the statements of the P.Ws. That there is a considerable delay in the lodging the F.I.R. In this case without any reasonable explanation; that the parties were involved in litigation for about 18 years and ultimately the accused persons were declared to be entitled for the allotment of land; that the investigation of the case was partial, biased and unfair; that there is no evidence brought on the record by prosecution that the articles alleged to have been taken away by the accused were recovered during the investigation of the case; that the P.Ws. Have made false and fabricated statements. In fact no such occurrence has ever taken place and that the appellants are innocent; that the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt, hence they deserve acquittal.
7. The contentions are opposed by the learned counsel for the State.
8. We have heard the learned counsel and gone through the records. The prpsecution in order to establish its case has mainly relied upon ocular account furnished by Karamat Ullah (P.W.2)
Muhammad Ajmal (P.W.3) and Shaukat Ali (P.W.7). All of them had given detailed account of occurrence ascribing specific role to the appellants. Each of them stated that they saw Ghias Shah, Khawar Shah, Kazim, Sajwara, Said and Bashir accused were standing on the ground. Kazim armed with his gun, Sajwara was empty-handed and the remaining accused was armed with rifles. They started firing. We ran and took shelter in a watercourse nearby. At a distance of one killa, Ghias Shah accused picked out a gallon from the car. The accused had also brought the car near the Dhari. He entered the house by opening the window and sprinkled the petrol at the Chhappar/Dhari. Khawar Shah set the Chappar on fire through a match--stick. The accused thereafter started pulling out the gear-machine. Ghias Shah accused fired a shot with rifle at Karamat Ullah (P.W.2) complainant, Kazim accused brought the tractor near the gear-machine and they placed the gear-- machine at the trolley. The accused also removed 3 ploughs and placed those in the same trolley. Kazim, Sajwara,and Bashir accused took two he-goats, one bicycle and loaded the same on tractor-trolley and went away.
The prosecution witnesses are interested, being closely related inter se and inimical towards the accused appellants due to long-standing litigation. A There are material contradictions in the statements of the P.Ws. The recoveries
2. The prosecution story in brief as disclosed in F. I. R. (Exh. P. A.) lodged by Karamat Ullah (P.W.2) was to the effect that on 27-4-1992 while he alongwith his sons Muhammad Amjad and Ajmal Ali and his brother namely, Ghulam Haider and Shaukat was sleeping in the ' Dhari' with their cattle. At about Fajr prayers time, he woke up on hearing the noise of a tractor trolley and saw Ghias Shah, Khawar Shah, Kazim, Sajwara, Said and Bashir accused standing there. Kazim was armed with a gun, Sajwara was empty-handed and remaining accused were armed with rifles. They started firing. The complainant and his companions took shelter in a watercourse nearby. Ghias Shah accused picked out a gallon of petrol from his car and sprinkled it at the ' Chappar' at his Dhari.
Khawar Shah accused set the Chappar/house on fire through a match--stick. The accused then started pulling out the 'toka' gear machine. Kazim accused brought out the tractor-trolley near the gear-machine and placed it at the trolley. The accused also removed his 3 ploughs, Kazim, Sajwara and Bashir accused, took his bicycle, two he-goats by loading these in the tractor-trolley and went away. According to the complainant, the burnt property was valued at Rs.5,000. The motive for the occurrences was the dispute regarding agricultural land pending in the Court for the last 18 years between the complainant and the appellants Said and Bashir who wanted, to take forcible possession of the land.
2. The occurrence took placed on 27-4-1992 at Fajrwela in the area of Sher Garb, 9 kilometres from Police Station Hujra Shah Moqeem. F.I.R. (Exh. P.A.) was lodged by Karamat Ullah (P.W.2) on 30-4- 1991 at 9-30 p.m. Recorded by Muhammad Murtaza, H.C. (Additional Moharrir, P.W.1).
3. Muhammad Aslam, A.S.1. (P.W.8) on 30-4-1992 went to the spot and prepared site plan of the occurrence (Exh. P.C.). He took into possession one tin (P.1) and few pieces of wood (P.2/1-8) vide recovery memo. (Exh. P.D.). He also recorded the statements of Karamat Ullah (P. W.2) and Muhammad Iqbal (P. W. Not produced) pertaining to the aforementioned recovery under section 161, Cr.P.C. Thereafter, the investigation was entrusted to Muhammad Ashraf Inspector (P.W.5) who recorded the statement of Ajmal, Amjad Ali,, Shaukat Ali and Ghulam Haider P.Ws. Under section 161, Cr.P.C. On 10-5-1992. Fie also arrested Said and Bashir appellants on 14-5-1992. Khan Muhammad Cheema, S.I. Also conducted the investigation of the case, submitted challan against Said and Bashir on 21-6-1992 and obtained warrants of arrest against the remaining accused and entrusted the same for execution to Muhammad Ashiq, A.S.I. (P.W.4). Muhammad Ashiq, A.S.I. (P.W.4) arrested Sajwara on 29-6-1992. Khan Muhammad Cheema, S.I. (P.W.9) arrested Kazim on 3-7-1992, Khawar Shah and Ghias Shah on 8-7-1992, and after completion of investigation submitted the complete challan in the Court on 11-7-1992.
4. The ocular account was furnished by Karamat Ullah complainant (P. W.2), Muhammad Ajmal (P.
W.3) and Shaukat Ali (P. W.7).
5. At the conclusion of prosecution evidence the appellants (Sajwara, Kazim, Said and Bashir Ahmad) were examined without oath. They refuted the prosecution allegation and pleaded innocence. However, they did not appear in their defence under section 340(2), Cr.P.C. But produced D. W.1 Gulzar Sibtain, Muhammad Younas D.W.2 and Muhammad Hanif D.W.3 in their defence during the trial.
6. It is submitted by the learned counsel for the appellants that Karamat Ullah, Muhammad Ajmal and Shaukat Ali. P.Ws. Are closely related inter se, interested witnesses and inimical towards the appellants, and therefore, their evidence is not reliable, that there are material contradictions in the statements of the P.Ws. That there is a considerable delay in the lodging the F.I.R. In this case without any reasonable explanation; that the parties were involved in litigation for about 18 years and ultimately the accused persons were declared to be entitled for the allotment of land; that the investigation of the case was partial, biased and unfair; that there is no evidence brought on the record by prosecution that the articles alleged to have been taken away by the accused were recovered during the investigation of the case; that the P.Ws. Have made false and fabricated statements. In fact no such occurrence has ever taken place and that the appellants are innocent; that the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt, hence they deserve acquittal. .
7. The contentions are opposed by the learned counsel for the State.
8. We have heard the learned counsel and gone through the records. The prosecution in order to establish its case, has mainly relied upon ocular account furnished by Karamat Ullah (P.W.2)
Muhammad Ajmal (P.W.3) and Shaukat Ali (P.W.7). All of them had given detailed account of occurrence ascribing specific role to the appellants. Each of them stated that they saw Ghias Shah, Khawar Shah, Kazim, Sajwara, Said and Bashir accused were standing on the ground. Kazim armed with his gun, Sajwara was empty-handed and the remaining accused was armed with rifles. They started firing. We ran and took shelter in a watercourse nearby. At a distance of one killa, Ghias Shah accused picked out a gallon from the car. The accused had also brought the car near the Dhari. He entered the house by opening the window and sprinkled the petrol at the Chhappar/Dhari. Khawar Shah set the Chappar on fire through a match--stick. The accused thereafter started pulling out the gear-machine. Ghias Shah accused fired a shot with rifle at Karamat Ullah (P.W.2) complainant, Kazim accused brought the tractor near the gear-machine and they placed the gear --machine at the trolley. The accused also removed 3 ploughs and placed those in the same trolley. Kazim, Sajwara,and Bashir accused took two he-goats, one bicycle and loaded the same on tractor-trolley and went away.
The prosecution witnesses are interested, being closely related inter se and inimical towards the accused appellants due to long-standing litigation. There are material contradictions in the statements of the P.Ws. The recoveries.
(P.I/1-10) and (P.2/1-8) burnt pieces of wood, not being kept in sealed parcel, therefore, it lost its credibility and became doubtful. There is no independent corroborative or incriminating evidence available .On the file against the appellants. Recording of statements of P.Ws. (Ajmal, Amjad, Shaukat Ali and Ghulam Haider) after 10 days of the alleged occurrence under section 161, Cr.P.C.
Also lost the credibility.
Muhammad Aslam, A.S.I. P.W.8 states in his cross-examination which is reproduced as under:-- "It. Is correct that on 28-4-1992 Karamat Ullah P.W. Submitted a written complaint to me that the accused party intended to take possession of land from him and that on the basis of complaint mentioned above I proceeded against Karamat Ullah and accused party under section 107/151, Cr.P.C. It is also correct that I submitted complaint (Kalandera) against both the parties under section 107/151, Cr.P.C. And sent the same to the Illaqa Magistrate. It is correct that Said and Bashir accused were apprehended by me in the security proceedings on 28-4-1992 and they were produced before the Court on 29-4-1992."
F.I.R. Exh. P.A. Lodged by Karamat Ullah P.W. Disclosed the commission of offence on 27-4-1992 at Fajrwela, recorded by Muhammad Murtaza H.C./Additional Moharrir on 30-4-1992 at 9-30 p.m. If there had been such occurrence, why this was not reported by Karamat Ullah P.W.2 (complainant) at the time of submitting application on 28-4-1992 for fomenting or initiating proceedings under section 107/151, Cr.P.C. Against the appellants (Bashir and Said). Definitely this plan was hatched just after the bailing out of Bashir and Said under section 107/151, Cr.P.C. From the Court on 29-4- 1992, The manner in which the evidence was given does not inspire confidence. It appears that complainant (P.W.2) after losing the case up to the Honourable Supreme Court of Pakistan pertaining the land in question, became desperate and involved the appellants in the false case.
The prosecution has failed to establish the case against the appellant beyond any reasonable doubt. It can safely be held that no such occurrence had taken place.
Khawar Shah and Ghias Shah in spite of the fact that they were attributed active role in the occurrence but were acquitted by the trial Court on C the same evidence.
State even did not bother to file an appeal against their acquittal. It appears that there was some mastermind behind the scene who manoeuvred the involvement of the accused persons nominated in the F.I.R. On account of reasons best known to him.
9. Now the question arises that appellants are languished in jail since their arrest, who is responsible or accountable for their incarceration? Although it is not our job to question this proposition at this stage but we must say that Judges are particularly accountable to their conscious and more than this to the Almighty Allah. It must be in the mind of all the Judges that sovereignty over! The entire universe belongs to Almighty Allah alone and the authority which is being exercised by them is a sacred trust and it should be exercised within the limits prescribed by Him. A crime free society can only be set up if every citizen irrespective of his colour, creed, religion and status, is provided justice and in this respect the Courts can play a vital and major role.
Application of independent judicious mind does not mean that the Courts shall award conviction to innocent persons and acquit the real culprits according to its own wills and whims rather it means to give anxious thought and consideration to the evidence in order to unearth the truth.
10. Keeping in view the panoply of above facts and evidence, we hereby accept the appeal, set aside the conviction and acquit the appellants from the charges against them. Bashir, Kazim and Sajwara shall be released forthwith, if not required in any other case. Said appellant is on bail; his surety bonds shall stand discharged.
11. The above are the detailed reasons in continuation of our short order passed on 4-12-1995.