' SHEIKH ABDUR RAZZAQ, J.---Instant appeal is directed against the judgment dated 16-2-1995 passed by Mr.Lutaf Ali Malik, Judge, Special Court No,1 (Punjab) for Suppression of Terrorist Activities, Rawalpindi whereby he convicted the appellants under section 302/34 read with section 109, P.P.C. And sentenced each of them to life imprisonment and a fine of Rs,1,000 each and in default thereof to further undergo R.I. For two months on each count. They were further extended benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts are that on 10-1-1994 at about 11.30 a.m. Mst. Bilqees Bibi complainant (P.W.7) along with her sons Bagh Hussain and Ikram Hussain had gone to the house of her relative Malik Muhammad Akram. While the complainant and her son Bagh Hussain were standing outside, and Ikram Hussain had gone inside, two cars stopped in front of house of said Malik Muhammad Akram. Out of one car Zafar Iqbal son of Karam Ellahi carrying one Kalashnikov on his shoulder and the other in his hands along with one other person armed with same weapon came out and both of them entered into the house of Malik Muhammad Akram. From the other car Parvaiz and Shahid sons of Anwar along with two other persons came out empty-handed and instigated Zafar Iqbal to commit the murder of persons present over there. Upon this Zafar Iqbal fired at Ibrar Hussain who was present in the courtyard who died on the spot. Muhammad Siddique also met the same fate at the hands of Zafar Iqbal. Shaukat Mehmood ran inside the house, to save his life, who was fired at by other companion of Zafar Iqbal who also received injuries and died on the spot. Mst. Sahib Nishan entreated the assailants but she was also done to death by Zafar Iqbal. This occurrence was witnessed by the complainant, Bagh Hussain and Mst. Rasool Bibi. The matter did not end here and thereafter the accused Zafar Iqbal (absconder) reached Government Middle School'
Sanghoori and attacked Abdul Khaliq son of Muhammad Hussain and done him to death, though he tried to take refuge in the house of Muhammad Maskeen. Yasir Imran and Imran Hussain witnessed the second occurrence. The motive behind this occurrence is stated to be that about 9 years ago Zafar Iqbal accused (absconder) abducted Mst. Kamraz Bibi daughter of Mehrban. After about two years of said alleged abduction Muhammad Siddique and his relatives committed the murder of 4 sisters, and brother-in-law, one nephew, one servant and mother of Zafar Iqbal, who along with his companions committed the aforementioned murders, to take the revenge of murder of his mother and others.
3. Muhammad Aslam, S.I. (P.W.14) proceeded to the place of occurrence and recorded complaint Exh. P.J. On the statement of Mst. Bilqees Bibi and then sent the same to the police station for formal registration of F.I.R. He prepared statements of injuries as well as inquest reports of Shaukat Mehmood, Muhammad Siddique, Abdul Khaliq, Mst. Sahib Nishan and Ikram Hussain vide Exh.PN/1- 2, PM. 1-2, PO/I-2, PQ/1-2 and PP/1-2 respectively. He then despatched the dead bodies for post- mortem examination through Muhammad Khan, A.S.I. And Allah Ditta LHC. He inspected the site and secured blood-stained earth from the place of occurrence of deceased and made the same into sealed parcels vide Exh. P.A. To Exh. P.E. Respectively. He also secured 21 empties from the place of occurrence except that of Abdul Khaliq and secured the same vide memo. Exh. P.F. He secured 9 empties from the place of murder of Abdul Khaliq and made a sealed parcel of same vide memo.
Exh. P.G. He also secured 10 empties from the place of occurrence pertaining to the murder of Shaukat Mahmood and prepared memo. Exh. PH. On the same day, last worn clothes of deceased P-1 to P-15 were produced before him by Muhammad Khan and Allah Ditta aforementioned and he secured the same vide memo. Exh. P.K. On 12-1-1994 he got the place of occurrence inspected from Muhammad Din Draftsman who prepared the site plans Exh. P-I, Exh.P-I/1, Exh. P-L and Exh. P-L/1 upon which red notes are in his hands. He also got the proceedings conducted against Zafar Iqbal and Muhammad Asif accused under section 87, Cr.P.C. And got them declared as absconders.
After usual investigation he submitted the challan.
4. A charge under section 302/34 read with section 109, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused prosecution examined Ali Ahmad P.W.l who is a witness of securing bloodstained earth vide memos. Exh. P.A. To Exh .P.E.Which bear his signature.
Muhammad Shafi P.W.2 identified dead bodies of Ikram Hussain, Muhammad Siddique, Shaukat Mehmood and Mst. Sahib Nishan on 10-1-1994, whereas dead body of Abdul Khaliq was identified by Muhammad Fazil P.W.3. Muhammad Aslam, A.S.I. P.W.4 drafted formal F.I.R. Exh. PJ/1 on the basis of complaint Exh. PJ. Riaz Hussain Shah Constable P.W.5 took the dead bodies of deceased to hospital for postmortem examination and after the postmortem examination, produced their last worn clothes P-1 to P-15 which were secured by the Investigating Officer vide memo. Exh. P-K.
Muhammad Din draftsman P.W.6 visited the place of occurrence on 12-1-1994 and prepared site plan Exhs. PI, PI/1, PL and PL/1 and handed over the same to the Investigating Officer. Dr. Tariq Saeed P.W.7 on 10-1-1994 conducted the post-mortem examination on the dead bodies of Muhammad Siddique, Shaukat Mehmood, Abdul Khaliq, Mst. Sahib Nishan and Ikram Hussain. Mst. Bilqees Bibi P.W.8 is the complainant and she has corroborated her version appearing in complaint Exh. PJ.
Bagh Hussain P.W.9 is the alleged witness of first occurrence who corroborated the prosecution version. However, he has stated that he was unaware about the motive aspect of the prosecution case. Muhammad Asghar ASI, P.W.10 on 11-1-1994 received 5 sealed parcels containing blood- stained earth and 3 sealed parcels allegedly containing empties of Kalashnikov from Muhammad Aslam Khan, S.I. For keeping the same in safe custody. On 18-1-1994 he handed over all the 8 parcels to Muhammad Naeem Constable (P.W.11) for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory. Muhammad Naeem Constable P.W.11 deposed about carrying 8 parcels to the office of Chemical Examiner as well as Forensic Science Laboratory as deposed by Muhammad Asghar A.S.I. (P.W.10). Imran Hussain P.W.12 has deposed about the second occurrence pertaining to the murder of Abdul Khaliq. Yasir Imran P.W.13 is son of Abdul Khaliq deceased and has deposed about the .Murder of his father at the hands of Zafar Iqbal accused (absconder). Muhammad Aslam S.I. P.W.14 is the Investigating Officer whose evidence has already been discussed above. Muhammad Khan, ASI P.W.15 is another marginal witness of memo. Exh. PK through which last worn clothes P-1 to P-15 of the deceased were taken into possession by the Investigating Officer. Thereafter, the learned D.D.A. Produced the reports of Chemical Examiner Exh.
PR and that of Serologist Exh. PR/1 and closed the prosecution case vide his statement dated 5-9- 1994.
6. When examined under section 342, Cr.P.C. Accused Shahid Iqbal admitted that he was a close friend of Zafar Iqbal accused (absconder). However, he denied the other contentions of prosecution and stated that P.Ws. Being related inter se and inimical have deposed against him. He further produced the statement of Amir Hussain Exh. D.A. In case F.I.R. No, 22 of 1994 under section 302/ 34/120-B/109, P.P.C. And then closed his defence evidence. He also chose not to record his statement under section 340(2), Cr.P.C. Similarly, accused Parvaiz Akhtar admitted that Zafar Iqbal accused (absconder) was his close friend. He also denied the other contentions of the prosecution like his co-accused Shahid Iqbal and after producing statement of Amir Hussain Exh. D.A. And without recording his statement under section 340(2), Cr.P.C. Closed his defence evidence.
7. After hearing the learned counsel for the parties, the trial Court convicted the accused/appellants vide judgment under appeal.
8. Arguments have been heard and record perused.
9. It is submitted by the learned counsel for the appellants that the only allegation against the present appellants is that they had instigated their co-accused Zafar Iqbal (absconder) who consequently committed the murder of as many as 5 persons, that no evidence whatsoever connecting the appellants with the commission of this offence has been brought on record, as is evident from the statements of complainant Mst. Bilqees (P.W.8), Bagh Hussain (P.W.9), Imran Hussain (P.W.12) and Yasir Imran (P.W.13) respectively, that even Bagh Hussain (P.W.9) has not corroborated the prosecution version as given by Mst. Bilqees (P.W.8). While elaborating his contention, he submitted that as per contents of complaint Exh. PJ lodged at the instance of Mst.
Bilqees (P.W.8) she was present along with her son Bagh Hussain outside the house of Malik Muhammad Akram, whereas her son Ikram Hussain had gone inside the house of Malik Muhammad Akram. However, she stands contradicted by Bagh Hussain (P.W.9) who deposes that he along with his mother were present in the courtyard of their house. He further contended that this discrepancy makes the presence even of the complainant on the spot highly doubtful. He next argued that even if the prosecution version is accepted, no case of conviction under section 302/34, P.P.C. Read with section 109, P.P.C. Is made out against the present appellants. He further contended that even the contents of F.I.R. Clearly show that these do not depict the true facts and complainant cannot be considered a truthful witness. While elaborating his second contention he submitted that first occurrence has taken place in the house of Malik Muhammad Akram whereas the second occurrence has taken place near Government Middle School Sanghoori which is situated at quite some distance from the first place of occurrence, that although presence of complainant at the time of second occurrence is not possible, yet she has described the second occurrence in complaint Exh. PJ, as if it has occurred in her very presence, that this description of second occurrence in complaint Exh. PJ makes her version untrustworthy. He submitted that in the earlier case as many as 9 persons had been done to death by Zafar Iqbal accused (absconder) at Rawalpindi, as such he did not require any instigation at the hands of present accused/appellants for committing another 5 murders. He thus, submitted that the allegation of instigation against the present accused/appellants has only been concocted to involve them falsely as they are fast friends of Zafar Iqbal accused (absconder). He thus submitted that prosecution has failed to prove the case against the appellants beyond any reasonable doubt as such appeal may be accepted and they may be acquitted.
10. Conversely the impugned judgment has been supported by the learned counsel for the State assisted by learned counsel for the complainant. However, they have admitted that there is no evidence against the present accused/appellants except that of instigating Zafar Iqbal accused (absconder).
11. The accused/appellants stand charged under section 302/34 read with section 109, P.P.C. For instigating their co-accused Zafar Iqbal (absconder) who has been assigned an active role of committing the murder of deceased persons. The appellants have not been attributed any other part except the one mentioned above. It has come on record through the statement of Ali Ahmed (P.W.1) that prior to the commission of murder of 5 persons, the accused Zafar Iqbal (absconder) had already committed murder of 9 persons at Rawalpindi. Now the question is, if an accused who has already committed the murder of 9 persons does he require any instigation/Lalkara to commit the murder of some other persons. The logical answer is absolutely not. Thus, to ascribe the role of instigation to the appellants is nothing but fabrication and concoction of some evidence to involve the appellants in this case, who have claimed themselves to be fast friends of Zafar. Iqbal accused (absconder). Thus, prosecution has failed to adduce any reliable, cogent and convincing evidence connecting the involvement of appellants in the commission of offence charged against them beyond doubt. Accordingly we accept the appeal, set aside the impugned judgment and acuit the accused/appellants. They are ordered to be released forthwith if not required in any other case.