' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,727 of 1995 filed by Tahir alias Kaka, Muhammad Islam, Ali Akbar sons of Ali Gohar, Muhammad Imtiaz and Muhammad Afzal sons of Muhammad Irshad, Mst. Asfa Bibi alias Guddo wife of Nisar Ahmad and Nisar Ahmad S/o Hashmat, who were convicted and sentenced by the learned Judge Special Court No,III suppression of Terrorist Activities constituted under Act, 1975, vide his judgment, dated 8-10- 1995, to undergo 10 years R.I. Under section 436/149, P.P.C. They were also directed to pay fine of Rs,20,000 (twenty thousand) each or in default to undergo 2 years R.I.
2. Tajammal Hussain, Allah Rakha, Manzoor, Nazir, Shabbir, Munir and Irshad were acquitted through the same judgment. Against their acquittal, according to the learned counsel for the complainant, appeal has been filed but as per office report, there is no such appeal against their acquittal. There is also a Criminal Revision bearing No,423 of 1995 filed by the complainant for the enhancement of sentence of the appellants who were acquitted by the learned Trial Court. No conviction under section 148, P.P.C., was awarded to the appellants. Moreover, it was also directed by the learned Trial Court that fine if recovered was ordered to be paid to the owners of the properties which were damaged, burnt or destroyed during the incident, as compensation under section 544-A, Cr.P.C.
3. The occurrence in this case took place on 1-3-1993 at 10-00 a.m. In the house of Sultan Ahmad P.W. Situated in village Nidhala Sulehria, Police Station Shah Gharib Tehsil Shakar Garh, District Narowal, 5 k.m. Away from the Police Station. F.I.R. Exh.P.B./1 was recorded by Noor Ahmad Inspector (P.W.7) on 9-4-1993 at 5-00 p.m. On the written complaint of Sultan Ahmad complainant P.W.1.
4. The prosecution story as stated by Sultan Ahmad, complainant in his complaint Exh.P.B./5 to the S.H.O., Police Station Shah Gharib, District Narowal, was that on the day of occurrence at 10-00 a.m.
When complainant was present in his house alongwith Noor Ahmad, Asmat Ullah and his wife Hanifan Bibi in village Nadhala Sulehria. They heard a 'Lalkara' and immediately, thereafter, they saw that outer gate of their house was being broken by the accused persons, namely Tajammal Hussain, Ali Akbar, Tahir Mahmood alias Kaka, Muhammad Afzal all armed with Kalashnikovs, Imtiaz and Muhammad Islam were armed with 7-mm rifles, Nisar and Irshad armed with revolvers, Allah Rakha armed with a pistol, Shabbir Ahmad, Munir Ahmad, Manzoor and Guddo wife of Nisar, Mst.
Rashidan Bibi wife of Irshad and Irshad armed with 'dangs' and hatchets entered into the house of the complainant simultaneously raising lalkaras and, thereafter, taking away his household articles and then entered into their shops and looted whatever was lying there. All the accused also threatened that whoever would come near would be killed then all the above said accused set fire at their shops and Havaili by sprinkling the kerosine oil and petrol. While leaving the place of occurrence they also took away the household articles from the house of Abdul Ghafoor, Manzoor and Yaqub sons of Ali Ahmad. According to the complainant the accused persons had caused the loss of Rs,20,00,000 (twenty lacs) to Rs,25,00,000 (twenty five lacs) to the complainant and the above said persons. The motive behind the present occurrence was that Tajammal Hussain accused was complainant in the murder case of his nephew namely Shehzad against the present complainant party. The present case was registered on the order of the Hon'ble High Court which was passed on the writ petition filed by Sultan Ahmad complainant. All the appellants were arrested on 29-41993. On the interrogation of Noor Muhammad Inspector (P.W.7) the accused Nisar, Tahir alias Kaka and Imtiaz alias O.P. While in custody individually and collectively led to the recoveries of peti-jisti P.10, 3 drunmiles P.11/1-3, box P.12, broken, thermos P.13, 8 quilts P.14/1-8, 2 tulias P.15/1-2, bag of cotton P.16 one pair of female shoes P.17/1-2, which he took into possession vide memo Exh.P.F., attested by Abdul Ghafoor and Muhammad Nawaz P.Ws. On 7-5-1993 he recovered household articles' P.1 to P.9 and P.22 to P.27 from a deserted well in village Samra, which were also taken into possession by him vide memo. Exh.P.C., also attested by the said two P.Ws. On 10-5-1993 on the house search of Ali Akbar accused he recovered water cooler P.28, old box P.29, old khes P.30 and one steal tea pot P.31 which he took into possession vide memo. Exh.P.D. On the same day he searched the house of Ghulam Sarwar S/o Muhammad Ali and recovered dinner set (plastic) P. 32, one quilt P.33, another quilt P.34, burqa P.35 and took these articles into possession vide memo. Exh.
P .G .
5. Prosecution in order to prove its case produced 9 witnesses in all. Amongst them there were three eye-witnesses namely Sultan Ahmad complainant (P.W.1), Hanifan Bibi (P.W. 2) wife of Sultan Ahmad and Noor Ahmad son-in-law of the brother of Sultan Ahmad complainant, examined as P.W.
3. One C.W. Syed Iftikhar Hussain Jaffari, retired D.S.P., was also examined. After the close of prosecution case, Tajammal Hussain (acquitted accused) while replying a question that why this case is against you, in his statement under section 342, Cr.P.C., he has submitted as under:- "He is the complainant in the murder case of Shehzad, in, which the accused have been declared as 'innocent'. The complainant party murdered his nephew Shehzad and in order to pressurize him for compromise, the complainant has falsely implicated him in this case. However, the police had found him innocent in this case."
' He also tendered in his defense attested copy of the death certificate Exh.D.C. Attested copies of rapat Roznamcha, No,21 Exh.DD/1 the accused did not produce any witness in their defence and declined to be examined under section 340(2), Cr.P.C.
6. Learned counsel for the appellants has read before us the prosecution evidence, statements of the appellants, statement of the C.W. And submits that the occurrence in this case took place on 1- 3-1993 while the F.I.R., was lodged on 9-4-1993 without any plausible explanation. Further submits that the story given in the F.I.R., is concocted one and the same was concocted and prepared at Lahore after hiring the services of an Advocate and so according to him no sanctity can be attached to the said F.I.R. He further submits that all the eye-witnesses are closely related inter se and they had motive to falsly implicate the appellants in the case because the murder case was registered against the complainant and his near relatives on the statement of Tajammal Hussain acquitted co-accused for the murder of his nephew namely Shehzad and in order to pressurise and blackmail him, this false case was registered. He further submits that conduct of the P.Ws. At the time of the occurrence was unnatural one. He also submits that it is a matter of great surprise that most of the appellants were armed with fire-arms like kalashnikovs and 7-mm rifle and allegedly their enemies were present at the spot at the time of occurrence but not a single shot was fired on them nor any damage was caused to their persons, that the statements of the witnesses were also recorded one month and 10 days after the occurrence, although, the Police Station was at a distance of 5 k.m. From the place of occurrence. That there are material contradictions and improvements in the statements of the P.Ws., that no independent person was produced by the prosecution, that eye-witnesses were not present at the spot. That all the eye- witnesses are inimical and interested one.
7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that it was a broad daylight occurrence, motive lies with the appellants to commit this occurrence. He submits that the delay in the F.I.R. Has been explained that the recoveries were effected on the potation of Nisar Ahmad, Tahir Mehmood and Imtiaz appellants on 3-5-1993. Learned A.A.-G. Representing the state submits that enmity between the parties is admitted. Possibility of false implication cannot be ruled out. He submits that the persons who were innocent have already been acquitted by the learned Trial Court.
8. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the learned Trial Court and have considered the submissions made by the learned counsel for the parties. In the instant case, the occurrence took place on 1-3-1993. A writ petition was filed by the complainant on which order for registration of case against the appellants and their co-accused was passed on 21-3-1993. Complainant Sultan Ahmad had got certified copy of the said order on 22-3-1993 but the case was got registered by him on 9-4-1993. This delay of one month and 7 days in lodging the F.I.R., is fatal to the prosecution case and has not been explained fully by the complainant, either in the complaint filed by him before the S.H.O., or before the Trial Court. It is also important to mention here that not a single independent witness from whole of the village either cited by the prosecution or produced by the prosecution before the Trial Court. Three eye-witnesses produced are closely related inter se and were inimical towards the appellants for the reason that Tajammal Hussain the acquitted co-accused of the appellants had lodged a murder case against the complainant and his near relatives 15/20 days prior to the present occurrence which was under investigation. The conduct of the P.Ws. At the time of occurrence is most unnatural. They did not ask any of the appellants to stop from doing these illegal acts.
According to the prosecution case some of the appellants were armed with kalashnikovs and 7- mm rifles but it is astonishing to note that they saw their enemies in front of them but did not cause any bodily harm to any one of them. Even the eye-witnesses present at the spot did not try to report the matter to the police although, the Police Station was at a distance of 5 k.m. From the place of occurrence especially those P.Ws., whose houses were looted and burnt allegedly by the appellants, this is unbelievable. There are material contradictions and improvements in the statements of the P.Ws., although, no specific role was given to the appellants in the F.I.R. Exh.P.B./1 but before the Trial Court the appellants were attributed specific roles, this also shows that anxiety on the part of the complainant party to rope the appellants in this case. All the close relatives of the appellants were implicated in this case. As far as recoveries are concerned which were allegedly effected on 3-5-1993 on the potation of Nisar Ahmad, Tahir and Imtiaz appellants, those were joint one and are inadmissible in evidence. Moreover, the alleged recovered articles were never got identified by the Investigation Officer through Sultan Ahmad complainant or through the P.Ws.
Learned A.A.-G. Himself has admitted before us and submitted that possibility of false implication in the instant case cannot be ruled out. Motive was also there for the false implication of the appellants in this case because as mentioned by us above, that 15/20 ID days prior to the occurrence Tajammal Hussain acquitted co-accused of the appellants got a case of murder registered against Sultan Ahmad complainant and his near relatives and he in order to blackmail and pressurize the appellants could have lodged this false complaint against the appellants and the acquitted co-accused. The statements of the eye-witnesses are not corroborated by any other independent circumstance in the instant case. Appellants are behind the bars since 29-4-1993.
9. Keeping in view all facts and circumstances of the case, we are of the considered opinion that possibility of false implication of the appellants in the instant case cannot be ruled out. In this view of the matter we accept this appeal. Conviction and sentence awarded to the appellants is set aside. They are in judicial lock-up, they shall be released forthwith, if not required in any other case.
10. When the judgment was being dictated it came to light that Nisar Ahmad, appellant is in judicial custody but nothing has been said by the Trial Court in the judgment whether he is convicted or acquitted. Although, memo. Of appeal shows that he was convicted and sentenced and is still in judicial custody alongwith his co-accused. This can be called the negligence on the part of the learned Trial Court who has not mentioned anything about Nisar Ahmad. However, as benefit of doubt has been extended to all the accused so the same is also extended to Nisar Ahmad accused, who shall be released forthwith if not required in any other case.