' This judgment will dispose of Criminal Appeal No, 911 of 1998 filed by Saeed Ahmad alias Sadhu, Zafar lqbal and Luqman Hashmi who were convicted and sentenced by learned Special Judge Suppression of Terrorist Activities (Special Court), Sheikhupura constituted under Suppression of Terrorist Activities Act, 1975 for the murder of Niamat Ali and causing injuries on the person of Dilshad (P.W.9) as under:---
(i) under section 302/34, P.P.C. Death sentence with a fine of Rs, 50,000 each and in default of payment of fine to undergo R.I. For one year and amount of fine if recovered was ordered to be paid to legal heirs of deceased and
(ii) under section 324/34, P.P.C. To undergo R.I. For 10 years with a fine of Rs,50,000 and in default of payment of fine to undergo R.I. For 2 years for causing injuries on the person of Dilshad (P.W.9).
2. Occurrence in this case took place on 28-10-1993 at 4 p.m. In the area of Kujar 2 miles away from Police Station Farooqabad District Sheikhupura while matter was reported by Muhammad Iqbal complainant examined as P.W.7 at Police Station on same day at 5-30 p.m.
3. Briefly stated facts of the case as disclosed by complainant Muhammad Iqbal in Exh. P.E. Were that his son, namely, Dilshad was working as a conductor on a Wagon owned by Allah Rakha, about 3 days prior to the occurrence, Shahid Saeed, Zafar Iqbal and Saeed alias Sadhu refused to.
Pay fare for travelling in that wagon and tried to board wagon along with ladies 'and were forbidden by his son Dilshad, upon which a quarrel took place but on the intervention of respectable the matter was compromised but Shahid Saeed had nursed a grudge, on 28-10-1993 at about 4-30 p.m. Shahid Saeed armed with rifle 222, Saeed alias Sadhu armed with rifle 7MM and two unknown persons came in a Suzuki Car bearing registration No, 3714/LHV driven by Luqman Hashmi, Zafar Iqbal armed with a pistol also came there on a motorcycle, Dilshad at that time was standing near the wagon while Niamat deceased also came there after prayer. Saeed Ahmad raised Lalkara upon which Shahid Saeed fired a shot with his rifle 222 which hit Niamat on the left side of his abdomen, due to firing of Saeed Ahmad and Zafar Iqbal many persons gathered who caught hold of Shahid Saeed when Zafar Iqbal took rifle 222 from Shahid Saeed and fired a shot on Dilshad which hit him under his armpit on left side. Both the injured were removed to hospital but Niamat Ali succumbed to injuries on his way to Hospital.
4. Investigating Officer, namely, Muhammad Ashraf, S.I./S.H.O. Of Police Station Sadar Farooqabad examined as P.W.14 came to spot, collected blood stained earth and took the same into possession vide memo. Exh. P.G. He also took into possession 6 crime empties P.5)1-6 vide recovery memo. Exh.
P.H. Luqman Hashmi appellant was arrested on 19-11-1993, got recovered his Suzuki car P.3 bearing Registration No, 3714/LH.V. Zafar Iqbal appellant was arrested on 5-12-1993. Shahid Saeed (now proclaimed offender) was arrested on 15-12-1993 who led to recovery of rifle 222 P.4 which was taken into possession vide memo. Exh. P.M. On 16-12-1993. Report of Chemical Examiner regarding blood-stained earth is Exh. P.S. There is no report of Serologist. Then there is report from. Forensic Science Laboratory about matching of crime empties' with alleged recovery of rifle 222 on the pointation of Shahid Saeed which is positive in nature.
5. Prosecution in order to prove its case produced 15 witnesses in all. Thereafter, statements of appellants' were recorded under section, 342, Cr.P.C. They claimed false implication and innocence.
Then 3 CWs, namely, Malik Wazir Ali retired Sub Inspector (C.W.1) Dr. Muhammad Nawaz Warriach (C.W.2) and Muhammad Feroze, Inspector (C.W.3) were examined by learned trial Court and thereafter judgment was pronounced by learned trial Court.
6. Mr. Taki Ahmad Khan, Advocate represents Saeed Ahmad alias Sadhu and Luqman Hashmi while Zafar Iqbal, appellant is represented by Sardar Muhammad Latif Khan Khosa, Advocate.
7. Learned counsel for appellants Saeed Ahmad and Luqman Hashmi submits that appellants have been falsely implicated in this case, Saeed Ahmad, appellant is father of Shahid Saeed, accused (now a proclaimed offender and only Lalkara is attributed to him and that as far as Luqman Hashmi, appellant is concerned, no overt act is attributed to him because according to F.I.R., he came at the spot along with Shahid Saeed (now P.O.) Saeed Ahmad, appellant and. 2 unknown persons. Further, submits that Luqman Hashmi was implicated in this case as being friend of Shahid Saeed (now P.O.) and that motive as mentioned in the F.I.R. Is not plausible one and no witness has been produced to prove the motive. Also submits that nothing incriminating was recovered from both the appellants.
8. Learned counsel for Zafar Iqbal, appellant submits that appellant is a practicing Advocate in Sheikhupura, according to F.I.R., he was armed with pistol but he did not use the same. Further submits that it is not believable that Zafar lqbal, appellant would leave his pistol and would take rifle 222 of Shahid Saeed (now P.O.) and then would cause injury on the person of Dilshad, an injured P.W. And that all the 6 crime empties recovered from the spot matched with the rifle recovered on the potation of Shahid Saeed (now P.O.) and that no other weapon was used in the occurrence. Adds that Zafar Iqbal, appellant is son in law of Saeed Ahmad, appellant and brother in law of Shahid Saeed (now P.O.) Learned counsel further submits that no case whatsoever is made out against Zafar Iqbal, appellant and in fact an altercation took place between deceased and the injured P.W. On one side while Shahid Saeed (now P.O.) on the other side because Shahid Saeed was also injured and he was medically examined at General Hospital 3 days after the occurrence.
9. On the other hand, learned counsel for complainant submits that there was no background of previous enmity between the-parties, it was a broad day light occurrence as such there was no question of false implication. Further submits that saeed Ahmad, appellant is attributed Lalkara and under his command, Shahid Saeed (now P.O.) killed the deceased and, that Luqman Hashmi came at the spot along with his co-accused, namely, Saeed Ahmad and Shahid Saeed (now P.O.) in a Suzuki car. Also submits that Zafar Iqbal, appellant caused an injury on the person of Dilshad, an injured P.W. And he being most natural witness, his testimony cannot be disbelieved.
10. Learned Assistant Advocate-General submits that prosecution has miserably failed to prove its case against appellants beyond any shadow of doubt.
11. We have heard learned counsel for parties at great length. In the instant case, injury to Niamat deceased is attributed to Shahid Saeed who though faced trial and also got recorded his statement under section 342 but before the judgment was pronounced, he became fugitive from law and now is a proclaimed offender. He had his own version which he put during recording of his statement under section 342, Cr.P.C. But at this stage we are not concerned about his stand as he is not appellant before us and we would not like to dialate upon his version lest it may prejudice the case of either party.
12. First of all we take up the case of Saeed Ahmad, appellant. He is father of Shahid Saeed (now P.O.) who according to prosecution case caused fatal injury to Niamat deceased. Only Lalkara is attributed to him. There is no overt act attributed to him. In our society it has become common routine and order of the day that elders of the family are roped in falsely along with their kith and kins who are main accused in such like cases. In our view he has been falsely implicated, so giving him the benefit of doubt conviction and sentence awarded to Saeed Ahmad appellant is set aside.
He is in jail and shall be released forthwith, if not required to be detained in any other case.
13. Next is the case of Luqman Hashmi who also did not cause any injury either to deceased or to, the injured P.W. Only allegation against him was that he came to the spot alongwith Saeed Ahmad and Shahid Saeed and 2 unknown persons. During the course of investigation, 2 unknown persons mentioned is the F.I.R. (Exh. P.E.) by complainant were neither traced nor challaned. Nothing has been stated by prosecution witnesses against them as to who they were. Luqman Hashmi was neither related to Saeed Ahmad, Zafar Iqbal, appellants nor to Shahid Saeed, (now P.O.) We also by extending the benefit of doubt acquit Luqman Hashmi, appellant by setting aside his conviction and sentence recorded by learned trial Court. He is in jail and shall be released forthwith, if not required to be detained in any other case.
14. Now we take up the case of Zafar Iqbal, appellant. It has come on record that he was a practicing Advocate at the time of, occurrence having standing of 4 years to his credit. According to prosecution case, he was armed with a pistol but did not use the same during the occurrence.
Version of prosecution was that when Shahid Saeed, accused (now P.O.) fired a shot at the deceased, P.Ws. Present there apprehended Shahid Saeed and then Zafar Iqbal, appellant snatched rifle 222 from him and caused injury to Dilshad an injured P.W. This version of the prosecution does not appeal to a man of an ordinary prudence for the reason that if Zafar Iqbal, appellant was present at the spot armed with pistol having some intention in his mind, there was nothing in his way not to use his own pistol and to take up the rifle of Shahid Saeed (since P.O.) and then to cause an injury on the person of Dilshad, an injured P.W. P.Ws. Are the persons who according to prosecution had apprehended Shahid Saeed (now P.O.). Then firstly and naturally what the witnesses would have to do was to snatch the rifle from him so that he may not cause further injuries to the deceased and other persons but it was not done, so the story put forth by prosecution is unnatural and improbable. Zafar Iqbal, appellant is son in law of Saeed Ahmad appellant and brother in law of Shahid Saeed (now P.O.) He could have also been falsely implicated by complainant party so that he may not pursue the case of his father-in-law and brother in law respectively being an Advocate. So, we also extend benefit of doubt in favour of Zafar Iqbal, appellant. His conviction and sentence is set aside and he shall be released forthwith, if not required to be detained in any other case.
15. Motive put forward by prosecution in this case is also not plausible that Saeed Ahmad appellant aged about 70 years would tease the girls as stated by P.Ws. In their statements before learned trial Court along with his son Shahid Saeed. Moreover, not a single girl or near relations of those girls were produced to prove this motive. So, we also do not believe the motive in this case.
16. All the crime empties recovered from the spot matched with the rifle recovered on the potation of Shahid Saeed (now P.O.). It also falsifies the prosecution story.
17. It may also be observed at this juncture that learned Assistant Advocate-General has also argued before us that prosecution has miserably failed to prove its case against appellants beyond any shadow of doubt.
Keeping in view over all facts and circumstances of this case, all the three appellants, namely, Saeed Ahmad, Luqman Hashmi and Zafar Iqbal are acquitted of the charge of murder giving them the benefit of doubt. They are in jail and shall be released forthwith, if not required to be detained in any other case. Death sentence of appellants is not confirmed.