' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,184-T of 1999 and Criminal Appeal No,340 of 1999 filed by Muhammad Amir, Umar Hayat, Shanna, Mukhtar.
Muhammad Nawaz and Khizar Hayat appellants. They were convicted and sentenced by learned Special Judge Anti-Terrorism, Sargodha Division, Sargodha on 2-4-1999 as under:
1. Umar Hayat and Mukhtar appellants, under section 302/149, P.P.C. To death and fine of Rs,one the each or in default ten years' R.I. Each.
' Under section 148, P.P.C. To undergo three years' R.I. Each and a fine of Rs, five thousand each or in default two months' R.I. Each.
' Under section 324/149, P.P.C. To undergo 10 years' R.I. Each and a fine of Rs,10,000 each in default five months' R.I.
' Under section 353/149, P.P.C. To undergo two years' R.I. Each and fine of Rs, five thousand each or in default two months' R.I. Each.
2. Muhammad Amir, Shanna, Muhammad Nawaz and Khizar Hayat, appellants, under section 302/ 149, P.P.C. To undergo life imprisonment each with a fine of Rs,50,000 or in default five years' R.I.
Each.
' Under section 148, P.P.C. To undergo 3 years' R.I. Each and a fine of Rs,5,000 each or in default five months' R.I. Each.
' Under section 324/149, P.P.C. To undergo ten years' R.I. And a fine of Rs,10,000 each or in default five months' R.I. Each.
' Under section 353/149, P.P.C. To undergo two years' R.I. Each and a fine of Rs, five thousands each or in default two months' R.I. Each.
' All the sentences were ordered to run concurrently and they were also granted the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case took place on 6-8-1997 at 7-20 p.m. Within the revenue estate of Mausa Dodha at a distance of 24 K.Ms. Away from Police Station Midh Ranjha while the matter was reported to the police by Iftikhar Ahmad, S.-I. Of P.S., Baghtanwala, P.W.4 through complaint Exh.P.A and the formal F.I.R. Exh.P.A/1 was recorded by Mukhtar Ahmad, H.C., P.W.2 on the same day.
3. Brief facts of the case are that police party of P.S. Baghtanwala raided the Dera of Umar Hayat to arrest him in case F.I.R. No,182/97, under section 392, P.P.C. The appellants resorted to indiscriminate firing upon them, as a result of which Allah Bakhsh, F.C. Died at the spot.
4. After registration of formal F.I.R. Exh. P .A/1, Muhammad Masood P.W.9 reached at the place of occurrence, prepared injury statement Exh.P.E and inquest report Exh.P.F., collected blood-stained earth and took the same into possession vide memo. Exh.P.M, also took into possession eight empty cartridges from the spot P.15/1-8 vide memo. Exh.P.N and six empty cartridges of semiautomatic rifle P.16/1-6 vide memo. Exh.P.O Saima appellant was arrested on 18-9-1997, who while in police custody on 21-9-1997 got recovered gun P.1 alongwith live cartridges P.2/1-5 and took the same into possession vide memo. Exh.P.B. Mukhtar appellant was arrested on 21-7-1997 and he on 25-9-1997 got recovered gun P.3 and four live cartridges P.4/1-4, which were taken into possession vide memo. Exh.P.C. Similarly, Umar Hayat appellant arrested on 28-9-1997, led to the recovery of gun P.9 along with cartridges P.10/1-4 which were taken into possession vide memo. Exh.P.H. Incomplete challan was submitted on 30-9-1997 and thereafter on 7-10-1997 Amir appellant was arrested. He led to the recovery of 7-MM Rifle P.7 with bullets P.8/1-4, which were taken into possession vide memo. Exh.P.I. Supplementary challan was submitted on 2-10-1997 and then the case was investigated by Aamir Masood, Inspector. After completion of the investigation and other legal formalities all the appellants were challenged to face the trial.
5. Prosecution in order to prove its case produced 11 witnesses in all, thereafter, prosecution tendered in evidence reports of Chemical Examiner Exh.P.S Serologist Exh.P.T and that of Forensic Science Laboratory Exh.P.U, then the statements of the appellants were recorded under section 342, Cr.P.C., in which they pleaded innocence ar4 claimed false implication in the instant case.
6. After reading the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellants submits that there is a clear conflict between ocular account and medical evidence. Elaborating his arguments, he submits that all the fires hit on the back of Allah Bakhsh deceased, that there are blackening on the wounds and that can only be caused within 3/10 feet while according to site plan Exh.PH the distance between the deceased and the assailants was 14 Karams. He further elaborating the dimension of injuries suggests that these were caused with bullet and not by pellet as stated by the P.Ws. He further submits that occurrence took place in dark hours of night, no identification parade had taken place in the instant case which was necessary as parties were not known to each other. He further submits that six empty cartridges of semiautomatic rifle were taken into possession by the police but those were not sent to fire-arm expert for the reasons that police party also fired at the time of occurrence and the possibility that the deceased might have died due to the firing made by the police itself cannot be ruled out. He also submits that no person from the locality was produced by the prosecution before the learned trial Court, that Muhammad Amir appellant is father of three other appellants namely Umar Hayat, Mukhtar and Shanna and they have been falsely implicated in this case. He submits that recovery of gun and rifle from the appellants have been planted. He further submits that no independent witness even in this regard has been produced. He lastly submits that no case is made out against the appellants.
7. On the other hand, learned counsel for the State is not in a position to rebut the submissions made by learned counsel for the appellants.
8. We have heard the learned counsel for the parties at a great length and have also gone through the record with their assistance. For the just decision of this case, the statement of Dr. Muhammad Zahid Shah, M.O., P.W.5 is very essential, which is reproduced below: "That on 7-8-1997 at about 1-00 a.m. On 'the written order of D.M., Sargodha, I conducted P . M .
Examination on. The dead body of Allah Bakhsh Constable No,636 of P . S . Bhagtanwala found following injuries on the dead body:---
(1) A fire-arm wound 1 x 1 c.m., circular to oval in shape on the back of upper part of right side of chest with blackening. It was wound of entry. There was a corresponding hole on the shirt.
(2) A fire-arm grazing wound on inner side of right wrist-joint with blackening of the margins.
(3) A fire-arm grazing wound 1 x 1 c.m. On the back of left thigh on upper part, vide C.M. Below buttocks with blackening of the margins. There was a corresponding hole on the trousers.
THORAX....................
ABDOMEN OPINION: ' Death in this case occurred due to hemorrhage and shock caused by Injury No,1, which was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm. Duration between injuries and death was immediate and that between death and P.M. Examination was about 4 to 5 hours.
9. Bare perusal of above said statement would show that all the injuries on the person of the deceased were on his back. Dimension of Injuries Nos.1 and 2 would show that these were caused with bullet and not by pellet. Injury No,2 is a grazing wound while according to the Doctor there was blackening on all the injuries which can only be caused from a distance of 3 to 6 feet but according to the site plan the distance between the deceased and that of appellants was 15 Karams, which comes to 75 feet, so it seems that occurrence has not taken place in the manner as stated by the eye-witnesses before the trial Court. There is a glaring conflict between ocular account and medical evidence. Six crime empties of semi-automatic weapon recovered from the spot were never sent to fire-arm expert for the reasons best known to the I.O. But in our considered view, these empties were fired from the rifles of police party and the possibility of shot fired from the rifle by the police might have hit the deceased cannot be ruled out as the injuries on the deceased were caused on his back, whereas the eye-witnesses were unanimous in their testimony that the deceased was facing the assailants when firing was made. Occurrence had taken place in dark hours of night, no identification parade was held in the instant case which was necessary as the parties were not known to each other. Learned counsel for the State has not been able to rebut the submissions made by learned counsel for the appellants.
10. Keeping in view the overall facts and circumstances of the case and the submissions made by learned counsel for the appellants, this appeal is accepted. Conviction and sentence awarded to the appellants by the learned trial Court is set aside. Death sentence awarded to Umar Hayat and Mukhtar appellant is not confirmed. Murder reference is replied in negative. Appellants shall be released forthwith if not required in any other case.
Death sentence awarded to Umar Hayat and Mukhtar appellants is not confirmed.