' MALIK HAMID SAEED, J.--This order will dispose of Criminal Appeal No,66 of 1996, titled Ghulam Shabir etc. v. Tht State, Criminal Appeal No,76 of 1996, titled Sayed Munawar Hussain Shah v. Aulad Russian etc. And criminal Revision No,12 of 1996, titled Syed Munawar Hussian Shah, v. Chulam Shabir Shah as all these are the outcome of one and the same judgment dated 24-6-1996 passed by the learned Special Judge, D.I.Khan.
' The convict-appellants along with others were tried on the charge under sections 324/148/149, P.P.C. Read with section 3 of the Explosive Substances Act. The learned trial Judge while acquitting their co-accused, Ghulam Shabir and Nazakat Hussian Shah were found guilty of the offences charged with and on conviction sentenced them as follows:-- "(1) Under section 3 of the Explosive Substances Act to life imprisonment each with forfeiture of their whole property under section 5-A thereof.
(2) Under section 337-F(iii), P.P.C. To Rs,1,000 each as 'Daman'.
(3) Under section 337-D, P.P.C. To Rs,67,641.25 each as 'Arch'.
(4) Under section 337-F(iii), P.P.C. To Rs,1,000 each as 'Danian'.
(5) Under section 337-T, P.P.C. To pay Rs,20,292.37 each.
(6) Under section 337-F(iii), P.P.C. To pay Rs,1,000 each per injury as 'Daman'.
' It was further ordered that till recovery of the abovementioned amount 'the convict-appellants should not be released and be kept in jail as sentenced to simple imprisonment.
3. Report of the occurrence was made by P.W./2 Munawar Hussian Shah and was recorded by P.W.5 Bazamir, H.C. On 27-3-1996 at 2-00 a.m. At Civil Hospital, D.I. Khan. Formal F.I.R. Was registered on the same day by P.W.1 Muhammad Ashraf, H.C. According to F.I.R. Sayed Munawar Hussian Shah the complainant and his two brothers Riaz Hussain Shah, Sajjad Hussain Shah along with other family members were sleeping in the rooms of their house, when at .1-00 a.m. i,e, midnight he awoke up on hearing the sound of blast of rocket launcher. His two brothers named above also got up and came to him and enquired about his (complainant) safety. All the three brothers then went to the main gate of the house. The moment they stepped out of the gate after opening it, one hand grenade exploded in-between them causing injuries to all the three. At that time firing also started from different directions at them. However, in the light of an electric bulb, the complainant saw the present accused appellants firing at them with klashnikovs. The complainant charged the present accused-appellants and other unknown accused for firing at them, causing injuries to them with hand grenade. Motive for the occurrence was stated to be previous blood feud enmity. After the required investigation challan of the case was submitted before Judge Special Court, D.I. Khan.
4. During trial N4uhammad Ashraf, H.C. Appeared as P.W.1 who registered the case vide F.I.R. Exh. PA on receipt of Murasila Exh.PA/1. Munawar Hussian Shah complainant appeared as P.W.2 and fully corroborated the F.I.R. And further verified the contents of his supplementary statement wherein he has charged the acquitted accused. Aulad Hussian and Saddaqat Hussain. Riaz Hussian Shah and Sajjad Hussian Shah who appeared as P.W.3 and P.W.4 respectively, fully corroborated the narration made by P.W.2 the complainant. P.W.5 Bazamir recorded the Murasila on the report of P.W.2 at D.H.Q. Hospital D.I. Khan and sent the same for registration of the case. Prepared the injury sheets Exh.B., Exh.PC and Exh.PD of Sayed Munawar Hussian Shah, P.W.2, Sayed Riaz Hussain Shah and Sajjad Hussain Shah respectively. Ahmad Gul, A.S.I. P.W.6 is a marginal witness to recovery memo. Exh.PF vide which blood-stained earth was taken into .Possession by the I.O. From the places where the said three injured were laying after sustaining the injuries. He is also a marginal witness to Exh.P.F./1 and PF/2 about the taking possession of one Ceiling Fan, one bullet of rocket launcher, empty shell of rocket launcher, one cover of cartridge of rocket launcher, 2 covers of rocket- launcher and one bulb of 200 volts, ten pieces of bomb with its 54 pellets, one cover of bomb, one rope along with cardboard and wire of copper, one chappal of injured Sajjad Hussain Shah, 25 empties of 7.62 bore, and two empties of 303 bore.
5. Bashir Hussian Shah (P.W.7) on hearing the sound of blast and thereafter of firing came out of his house and when going towards .The house of complainant had seen the appellants armed with klashnikovs in the light of bulb which was lighting on the wall of the mosque. The Investigating Officer had prepared the site plan at the instance of said P.W. Similar is the version of P.W.8 while P.W.9 has stated that he was irrigating his lands when he heard the reports of two blasts and firing on which he started towards his house and had seen a Datsun coming out of the house of Aulad Hussain and acquitted accused Liaqat Hussian was driving the Datsun.
6. Doctor Muhammad Hanif had appeared as P.W.10 and on examining the three injured had found the following:-- MUNAWAR HUSSIAN SHAH: ' Two entry wounds (penetrating) over right buttock. Circular 1/4" x 1/4" in Dia.
' The nature of injury was kept under observation and duration of injury was opined as 1 to 2 hours.
' Kind of weapon used: Blast injury. RIAZ HUSSAIN SHAH:
(1) Two penetrating wounds over left axillary area.
(2) Two penetrating wounds over left side abdomen.
(3) Three penetrating wounds over left side abdomen below !Umbilicus.
(4) Penetrating wounds over left thigh.
' The nature of injury was kept under observation and duration of injury was opined as 1 to 2 hours.
' Kind of weapon used: Blast injury. SAJJAD HUSSAIN SHAH:
(1) Multiple penetrating wounds 1/4" x 1/4" in Dia ovet (left) knee-joints.
(2) Multiple penetrating wounds over left leg anteriorly.
(3) Crush four fingers left foot.
(4) Two wounds right buttocks.
(5) Wounds right hand.
(6) Penetrating wound right knee joint.
(7) Penetrating wounds right foot.
' The nature of injury was kept under observation and duration of injury was opined as 1 to 2 hours.
' Kind of weapon used: Blast injury.
' P.W.11 Abdul Rahim Khan, S.H.O. Has conducted the entire investigation of the case and after completion of the investigation has submitted the complete challan to the Court. P.W.12 Jehangir Ali Shah, H.C., P.W.13 Iqbal Hussain Shah, H.C. Are the marginal witnesses to memos. Exh.P.W.11/2 and P.W.11/1 while P.W.14 Muhammad Nawaz presented the three injured to the Doctor. Along with injury sheets and delivered the medico-legal reports of the injured to the I.O.
6. The appellants when examined under section 342, Cr.P.C. Denied the prosecution case and claimed innocence.
7. The learned counsel for the appellants after going through the entire prosecution evidence, criticized the impugned judgment on the following four grounds:--
(i) That evidence of inimical witnesses must get strongest corroboration from independent sources.
(ii) Identification of accused at night time in absence of visual identification of good quality such as sufficient light, unobstructed view of the offender brings the evidence in the category of suspected evidence.
(iii) If an offence is committed in a planned manner like in this case and dark hours of night are selected for commission of offence, the assailants would take all possible precautions to conceal their identity.
(iv) Whether offences fall under sections 337(iii)-D, P.P.C. 337-F(iii) and 337-T, P.P.C. Being not scheduled offences are triable by the Judge Special Court.
8. Learned counsel for the convict-appellants vehemently contended that clue to blood-feud enmity, there was a long-standing enmity between the parties and so the conviction cannot he maintained on statements of such inimical witness. He argued that mere presence of injured witnesses on the spot would not be sufficient to presume that they had made true statements unless supported by a strong independent corroboration, which is lacking in the present case.
9. The place of occurrence is the outer-gate of the house of the complainant, who along with his other two brothers were asleep in their respective rooms of the house when they heard the sound of a Rocket-Launcher lire. They awoke-up and rushed to the outer-gate and on its opening a hand-grenade was exploded in-between them, injuring them and when lying on the ground in injured condition, claim to have seen/identified the appellants tiring at them with klashnikovs in the light of a bulb.
10. The prosecution's case is that a hand-grenade was tied with the handle of the gate of the house which was stringed with a copper wire with the pin of the hand-grenade and thus when the door was opened, the hand-grenade exploded. In such state of affair, when in such a manner, the commission of offence was arranged, it does not appeal to the common sense that appellants who have selected dark hours of night for commission of the offence would not take all possible precautions to conceal their identity and expose themselves to the witnesses by standing close to the electric bulb. Weight of evidence depends upon rules of common sense which negates the version put-forth by the prosecution evidence in this case.
11. The record of the case shows that there was previous hostility between the parties who admitted the same. The role attributed to the present appellants by P.W.2 Munawar Hussain Shah, P.W.3 Riaz Hussain Shah and P.W.4 Sajjad Hussain Shah is that at the relevant time, they were seen by them firing at them with klashnikovs and had also fired the Rocket-Launcher and hand-grenade and had caused the injuries to them by means of it. In the given circumstances, the evidence of said injured witnesses needed independent corroboration. Admittedly, the women folk were present in the house at the time of occurrence but none of them was cited or examined as witness against the appellants.
12. Complainant in the F.I.R. Has specifically mentioned that he awoke-up on hearing the blast sound of rocket launcher, the question arises that a man who is not an Expert in Explosives, how can differentiate on hearing a sound of Explosive about its kind and description and such a specific reference about the description of weapon used give rise to the suspicion that the report was not promptly lodged but lodged after preliminary investigation.
13. Besides the conviction and sentences passed under the Explosive Substances Act, the learned trial Judge also convicted and sentenced the appellants under section 337-F(iii), 337-D and 337-T, P.P.C. And had awarded various sentences in shape of Arsh and Daman as narrated. Above. The said sections of law are not included in the Schedule appended to the Suppression of Terrorist Activities (Special Courts) Act (Act XV of 1975) and, therefore, cannot be termed as scheduled offences. Under section 4 of the said Act, jurisdiction of the Special Court has been given which is as under:-- "JURISDICTION OF SPECIAL COURT:
(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court.
(2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence."
Thus it is crystal clear from the provisions of this section that the jurisdiction of the Special Courts constituted under the Act extended only to the trial of the offences mentioned in the Schedule.
Suppression of Terrorist Activities (Special Courts) Act is a special law conferring exclusive jurisdiction on the Special Courts constituted under the said Act to try only those cases which are mentioned in the Schedule. The offences under sections 337-F(iii), 337-D and 337-T, P.P.C. Are not included in the Schedule, therefore, the learned Judge has exceeded his jurisdiction while dealing with the said sections of law.
14. Learned counsel for the State while criticizing the impugned judgment too was of the firm view that in the situation put forth by the prosecution, identification of the accused/appellants was not at all possible because due to the explosion of hand-grenade there must a cloud of dust and smoke. He further contended that the injured eye-witnesses had stated in their statements that appellants were firing at them with their kalashnikovs but not a single spent bullet of 7.62 bore was recovered from the spot and further contended that even the trial has not believed the factum of firing by the appellant and if this aspect of firing by the appellants is removed from the prosecution case, then in that case, there was no occasion of identifying the appellants by the injured witnesses who were lying on the ground in injured condition.
15. Learned counsel for the complainant, however, strongly supported the impugned judgment by arguing that motive in the case has not been denied. Place of occurrence was admitted and circumstantial evidence in the shape of recoveries supported the prosecution case and medical evidence is also in line with the prosecution version.
16. Having regard to the above circumstances, we are of the view that the case against the appellants is not free from doubt. The benefit of doubt is, therefore, extended to them and they are acquitted from the charge. The convict-appellants be released forthwith if not wanted in any other cause. Their appeal is accordingly accepted, while Criminal Appeal No,76 of 1996 and Criminal Revision No,12 of 1996 fails and stands dismissed accordingly.