' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of M.R. 262 of 1997 and Criminal Appeal No,666 of 1997 filed by Muhammad Aslam, Ghulam Hussain, Sohna Muhammad Ashraf and Sher Muhammad, appellants who were convicted and sentenced by the Judge Special Court, Sargodha Division, Sargodha constituted under the Anti-Terrorism Act, 1997 vide his judgment, dated 20-11-1997 for committing the qatl-e-amd of Ehsan Ullah as under:--- ' Under section 148, 3 years R.I. Each P.P,C. With a fine of Rs,5,000 and in default 3 months R.I.
' Under section 302 Death read with section 149, P.P.C.
' Murder Reference No,262/T of 1997 for confirmation of the death sentences or otherwise awarded to appellants shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 10-00 p.m. On 25-10-1995 within the revenue estate of mauza Daulatwala at a distance of 10 kilometres from Police Station, Sadar Bhakkar while the matter was reported by Sana Ullah (P.W.6) at 12-30 mid-night on 26-10-1995 and the formal F.I.R., Exh.P.C., was recorded by Sabir Hussain Shah, S.I./S.H.O., (P.W.10) on the same day.
3. Briefly stated the facts of the case were that on 25-10-1995, Sana Ullah, complainant, alongwith Ehsan Ullah and Aman Ullah was coming in a jeep from Kotla Jam. The Jeep was being driven by Ehsan Ullah while the complainant and Aman Ullah were sitting on rear seat of the Jeep. When they reached near basti Makallanwali at 10-00 p.m. And the headlights of the Jeep were on, all of a sudden, Muhammad Aslam, Muhammad Ashraf, Sher Muhammad, Ghulam Hussain and Sohna along with two unknown persons armed with kalashnikovs emerged from the sugarcane field. All the accused raised lalkara that they had come to revenge the murder of Ahmad, and started firing at the Jeep. The complainant and Aman Ullah came down from the back door of the Jeep, concealed themselves in the sugarcane field and saw the occurrence. As a result of indiscriminate firing, Ehsan Ullah succumbed to his injuries.
4. After registration of the F.I.R., Sabir Hussain Shah, S.I./S.H.O., (P.W.10) inspected the spot, prepared injury report Exh.P.K. Of the deceased and also the inquest report Exh.P.L. He took into possession the Jeep vide memo Exh.P.E. While the blood from the jeep was seized vide memo Exh.P.D. 66 empties P.5/1-66 were taken into possession vide memo Exh.P.F. Rough notes and site plan was got prepared through Exh.P.B. Last worn clothes of the deceased were taken into possession vide memo. Exh . P . A .On 26-11-1995, Investigating Officer arrested Muhammad Ashraf, appellant who led to the recovery of Kalashnikov P.6 which was taken into possession on 27-11-1995 vide memo.
Exh.P.G. Sher Muhammad accused was arrested on 26-11-1995 who led to the recovery of Kalashnikov P.8 on 28-11-1995 and the same was taken into possession vide memo Exh.P.H. After completion of the investigation, Investigating Officer, challaned Muhammad Ashraf and Sher Muhammad accused while the remaining accused namely Muhammad Aslam, Ghulam Hussain and Sona were found to be innocent.
5. Prosecution in order to prove its case produced 10 witnesses in all and, thereafter, the Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.M. And that of the Serologist as Exh.P.N. While the report of the Forensic Science Laboratory is Exh.P.O. And closed the prosecution case. Then statements of the appellants were recorded under section 342, Cr.P.C., in which they claimed false implication due to enmity. After conclusion of the trial, all the accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the prosecution evidence and other material on record submits that it was an un-witnessed occurrence; it took place in dark hours of the night; the two eyewitnesses produced by the prosecution are inimical towards the appellants and are close relations of the deceased; there was background of enmity between the parties; there is conflict between ocular account and the medical evidence; there are material contradictions in the statements of the eye-witnesses interest and in particular between the complainant and the Investigating Officer and that both the eye-witnesses are chance witnesses.
Further submits that the story put by the eye.-witnesses is not plausible and probable one and that Abdul Sattar, P.W.8 a wajtakar witness is also closely related to the deceased. There were burning on the injuries of the deceased which proves that firing was made from very close range. Learned counsel submits that three appellants namely Ghulam Hussain, Sona and Sher Muhammad were found to be innocent and were placed in column No,2 of the report under section 123, Cr.P.C., and that the recoveries affected from Muhammad Aslam and Muhammad Ashraf, appellants are of no help to the prosecution as the empties recovered from the spot either did not match with the kalshnikov allegedly recovered at the pointation of Ashraf or with the kalashnikov recovered on the pointation of Aslam which was found defective. The remaining three appellants were never arrested, so nothing was recovered from them.
7. On the other hand, learned counsel for the State assisted by the learned counsel for the complainant submits that it was a case of promptly lodged F.I.R., as the occurrence took place at 10-00 p.m. And the matter was reported to the Police at 12-30 mid-night after 2-1/2 hours although Police Station was at a distance of 10 kilometers from the place of occurrence. Further submits that names of the accused, the weapons which they were carrying and the role they played have been mentioned in the F.I.R. Adds that there was motive with Muhammad Aslam and Ashraf as their father was murdered in the year 1985 by Ehsan Ullah and his other relations who were tried and acquitted by the Trial Court and to take the revenge all the appellants in prosecution of their common object murdered the deceased Ehsan Ullah.
8. We have heard learned counsel for the parties and have gone through the evidence recorded by the Trial Court and the other material available on record. In the instant case, Sana Ullah, P.W.6 an eyewitness is real brother of the deceased while Aman Ullah P.W.7 another eye-witness is uncle of the deceased and Abdul Sattar P.W.8 the alleged witness of Wajtakar is son of cousin of the deceased. No independent witness has been produced by the prosecution in this case. The occurrence in this case had taken place at 10-00 p.m. On 25-10-1995. According to cross- examination conducted on the P.Ws., it was a dark night. The reasons given by the two eye- witnesses of their presence along with the deceased are not plausible. They allegedly were sitting in the Jeep but they did not receive even a scratch on their bodies although they had stated that they ran away from the back door of the Jeep and their backs were towards the Jeep. If this was the position, they could not have seen the occurrence and the role played by the appellants. Both the eye-witnesses had also stated that nobody was sitting on the front seat alongwith the deceased who was driving the Jeep. This is against the norms of our society. The reason given by them is that the front seat was not in working condition. In our view, this was a false pretext which the prosecution witnesses manufactured. In fact, they were not present at the spot. Some of the injuries on the person of the deceased were on the back of his body and according to both the eye-witnesses the assailants were not firing from the back. These injuries could not have been caused if the appellants/assailants were on the front and right side of the deceased at the time of firing. This also negates the prosecution version and presence of the eye-witnesses at the spot. In this regard, we would like to mention here the injuries of the deceased as noted by Dr. Aisab Khan (P.W.9):---
(1) A fire-arm wound of entry 2 c.m. x 1/2 c.m. On the left side of forehead, 2 c.m. From left eyebrow.
The margins were burnt and inverted. The bullet fractured the frontal bone and after damaging the brain matter reached under the partial bone on the right side and produced fractured lines at that place. Bullet was removed.
(2) Fire-arm wound of entry 4 c.m. x 2 c.m. Immediately below the left eye.
(3) Fire-arm wound of entry 11 c.m. x 4 c.m. On the right side of neck, bullet entering from injury No,2, fractured the magilla, injured the tongue and fractured the jawbone, on the ,right side and crossed the body through injury No,2.
(4) A fire-arm wound of entry 1-1/2 c.m. x 1 c.m. On the back of right shoulder.
(5) An exit wound of injuries Nos.4, 10 c.m. x 10 c.m. On the front of right shoulder. The bullet caused injuries to the muscle and upper end of the numerous which was fractured.
(6) A fire-arm wound of entry 1-1/2 c.m. x 1 c.m. On the back of right arm above the right elbow.
(7) An exit wound 11 c.m. x 5 c.m. On the front or right arm immediate above the right elbow underline muscles were damaged and numerous was fractured.
(8) Six fire-arm wound entry in an area of 12 c.m. x 20 c.m. On the right side of chest, they have almost uniformed diameter of 1% c.m. x 1 c.m.
(9) Exit wound 10 c.m. x 6 c.m. In front of right chest 6 c.m. Above the right nipple which corresponded to the exit wound of the upper four bullets of injury No,8.
(10) An entry wound 2 c.m. x 1 c.m. On the left side of chest 5 c.m. Above the left nipple. The bullet damaged the left lung and was recovered from left plural cavity.
(11) An entry wound 2 c.m. x 1 c.m. On the outer side of right leg.
(12) An exit wound 6 c.m. x 4 c.m. On the inner side of right leg 17 c.m. Below the right knee; underlines bones were fractured into pieces.
(13) A grazing wound of fire-arm 7 c.m. x 4 c.m. On the back of right thigh 19 c.m. Above the right knee.
(14) A fire-arm wound of entry 8 c.m. x 4 c.m. On the back of left leg 9 c.m. Above the left ankle.
(15) A fire-arm wound of exit 13 c.m. x 7 c.m. On the front of left leg underline bones were fractured into pieces one bullet was recovered from the clothes.
(16) A fire-arm wound of entry 4 c.m. x 2 c.m. On the outer side of left wrist.
(17) Exit wound 6 c.m. x 4 c.m. On the front side of left wrist lower end of radious was fractured."
' A bare perusal of the injuries would show that some of the injuries are on the back and some of them were having burnt margins. So, there is conflict between the ocular account and medical evidence. There was previous background of enmity between the parties. The motive is a double- edged weapon. Three of the appellants, namely, Ghulam Hussain, Sher and Sona who are first cousins of Ashraf and Aslam appellants were never arrested by the Police, so no recovery was affected from them. The empties recovered from the spot never matched with the Kalashnikov allegedly recovered on the D potation of Ashraf and Akram appellants who are real brothers inter se. Further, Sana Ullah, the complainant, stated during the cross-examination that statements of the. Eyewitnesses and the other documents were prepared by the Investigating Officer after reaching at the spot from Police Station but Sabir Hussain, S.I./S.H.O. (P.W.10) stated that he recorded statements of the witnesses after reaching at the spot in the morning and also' inspected the dead body in the morning and then sent the same to mortuary at that time. No window panes of the Jeep were taken into possession by the Investigating Officer to show that during the firing window panes were broken into pieces. The Investigating Officer (P.W.10) also admitted that he did not mention in his first inspection note that he recorded marks of bullets on the Jeep. He did not even mention side of the Jeep hit by the appellants. Both the eyewitnesses were also the recovery witnesses. They were inimical towards the appellants inasmuch as Aslam appellant contested the election against one of the eye-witnesses that is P.W.7. So, no reliance can be placed on their testimony. As earlier stated, no empty matched with the alleged recovery of weapon of offence from Aslam appellant so the Fire Arm Expert report does not in any way advance the case of the prosecution.
As a result of the above discussion, we are of the considered view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. So, while accepting the appeal filed by the appellants, we set aside the conviction and sentence recorded against them by the learned Trial Court. All the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. Death sentences of the appellants are not confirmed. Murder Reference is answered in the negative.