' M. NAEEMULLAH KHAN SHERWANI J.---The way in which this appeal arises is this. The appellants, namely, Ijaz Ahmad and Muhammad Saleem alias Shana alongwith Shafqat Ali, Farooq and Matloob Rasool were tried by learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Gujranwala Division Gujranwala for the murder of in Asghar Ali, aged 44/45 years The murder incident happened at the deceased's house. There are serious disputes as to the material facts. By virtue of his judgment dated 29-8-1995, the said learned Judge found Ijaz Ahmad and Muhammad Saleem appellants guilty of the said charge convicted them under section 302(b)/34, P.P.C. And punished them with death and imprisonment for life, respectively. He also directed them to pay Rs,1,00,000 (Rupees one lac ) each to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. And in the event of default in payment of the said amount, the same was ordered to be recovered as arrears of land revenue. Muhammad Saleem was allowed benefit of section 382-B, Cr.P.C. Learned trial Judge, however, acquitted Shafqat Ali, Farooq and Rasool of the charge out of abundant caution by extending them benefit of doubt.
2. By filing this appeal, both the convicts have approached this Court to assail the validity of the judgment passed against them by the said learned Judge.
3. Occurrence of the alleged incident took place on 25-11-1990 at 6-30 a.m. In the area of village Peero Shah, falling within the territorial jurisdiction of Police Station Karrianwala, District Gujrat.
Distance between place of occurrence and the police station is eight miles. The matter was reported to the police by Mst. Shahnaz Akhtar (P.W.2) wife of the deceased on the same day at 8.00 a.m. When she came into contact with Munawar Hussain Bhatti, Inspector/S.H.O. (P.W.13) at Adda Santal who recorded her statement (Exh. PB) and despatched the same to the Police Station through a constable for formal registration of a case. Consequent upon receipt of statement (Exh.
P. B.). Muhammad Yousaf Muharrir/A.S.I. (P.W.5) drew up formal F.I.R. (Exh.PB/1) without their being any addition or subtraction on his part. In this manner, criminal investigation was set into motion.
4. Facts and circumstances revolving around this matter, which figure in F.I.R (Exh.PB/1) are as under :- ' Mst. Shahnaz Akhatar, complainant (P.W.2) was married to Asghar Ali deceased. Some 12 years ago. One son and three daughters were born out of the said wedlock. One Ch. Mukhtar is a paternal cousin of the deceased through brotherhood. He has enmity with Imtiaz Ahmad. Party led by Imtiaz Ahmad considered the deceased and others as their own enemies. On the fateful day, Asghar Ali went out of his home to answer call of the nature. The sun had not risen yet. At about 6.30 a.m. The complainant was cleaning face of her minor daughter while standing near a hand-pump. In the meanwhile, Asghar Ali came running to the compound of the house. He stumbled against a door and fell down. Then he started running towards the rooms. The complainant failed to assess the situation. Asghar Ali was yet in the middle of the courtyard, when Ijaz Ahmad appellant, armed with Kalashnikov, Muhammad Saleem appellant and Sabir Hussain (since dead) carrying fire-arms, entered courtyard of the house. Ijaz Ahmad made use of his Kalashnikov by making a shot at Asghar Ali in the form of a burst, who fell there on receipt of injuries. The complainant raised hue and cry, whereupon the accused fled away from the spot. The complainant went up to the outer door and found that Farooq and Shafaqat Ali were available outside. They were armed with guns.
The accused left towards Dera of Iftiaz Ahmad. The complainant then approached her husband, who had succumbed to his injuries in the meanwhile. Muhammad Nawaz (P.W.3) had seen Ijaz Ahmad appellant firing at the deceased and then running from the spot in the company of his co- accused. Firing attracted a great majority of people.
5. As it was a heinous crime, so investigation into the same was launched spontaneously.
Summary of investigation proceedings carried out by Munawar Hussain Bhatti, Inspector/S.H.O.
(P.W.13) is as under:-- ' Preceding registration of case, the Investigating Officer immediately rushed to the spot inspected the dead body, prepared injury statement (Exh.P.J.) as well as inquest report (Exh.P.K.) and despatched dead body of Asghar Ali to the mortuary for postmortem examination under the escort of Naeem Arif, constable (P.W.8). He collected blood-stained soil as well as seven crime empties (P7/1-7) from the place of occurrence, made the same into separate sealed parcels and prepared seizure memo. Exh.P.C., duly attested by Muhammad Nawaz (P.W.3). On 25-11-1990. Naeem Arif, constable P.W.5 produced before him blood-stained last worn clothes of the deceased, short (P.1), Jursi (P.2) and one Tehmed (P.3), which were taken into possession by him through memo. Exh.P.E.
As per direction of the investigation and pointation of witnesses, Akhtar Naqqash, Draftsman (P.W.12), prepared site plans (Exhs.P.1 and P1/1). The investigator then handed over sealed parcels to Muharrir of the police station for keeping the same into safe custody. Shafaqat Ali, Ghulam Sabir (since dead), Ijaz Ahmad and Muhammad Saleem could be formally arrested by him. During interrogation, Muhammad Farooq accused was found innocent, whereas Matloob Ras000l, who was not named in the F.I.R., was found one of the offenders. He recorded statement of the witnesses under section 161, Cr.P.C. After successfully completing the investigation, he submitted challan against the accused to the Court to face their trial.
6. The learned Trial Judge framed charge against all the accused and put the same to them, to which they pleaded not guilty and claimed to be tried. Prosecution was then called upon to produce evidence of its choice against the accused to establish charge against them beyond any shadow of doubt.
7. The prosecution ventured to produce as many as thirteen witnesses in all, namely, Dr. Allah Rakha Dar (P.W.1), Mst. Shahnaz Akhtar (P.W.2), Muhammad Nawaz ( P. W .3), Qamar Zaman (P .W .4), Muhammad Youasf, A.S.I. (P.W.5), Muhammad Faazil, Constable (P.W.6), Rashid Ahmad, A.S.I.
(P.W.7), Naeem Arif, Constable (P.W.8), Nazar Muhammad (P.W .9), Tassaddaq Hussain (P.W.10), Rana Muhammad Yasin (P.W.11), Akhtar Naqqash (P.W.12) and Munawar Hussain Bhatti Inspector/S.H.O. (P. W.13).
8. Evidence of Dr. Allah Rakha Dar (P.W.1), Mst. Shahnaz Akhtar, complainant (P.W.2), Muhammad Nawaz (P.W.3), Qamar-us-Zaman (P.W.4), and Munawar Hussain Bhatti, Inspector/S.H.O. (P.W.13) is of great significance in this case.
' P.W.1 Dr. Allah Rakha Dar on 25-11-1990, conducted autopsy upon dead body of Asghar Ali, duly identified by Muhammad Nawaz (P.W.3), and observed following injuries on his person:--
(1) A fire-arm wound of entry with inverted margins measuring 1.5 x 1 c.m. On right side of lower chest, 1 c.m. Below and medial to right nipple.
(2) A firearm wound of exit with everted margins four c.m. Into two c.m. (4 x 2 c.m.) on the medial wall of left axila, 6 c.m. Below and apex of left axilla, Probing proved.
(3) A fire-arm wound of exit 1.5 x 1.5 c.m. On the medial aspect of upper 1/4 of left arm.
(4) A fire-arm wound of exit 2 x 1.5 c.m. On the postero lateral aspect of upper 1/3 of left arm.
Probing proved.
(5) A fire-arm wound of entry with inverted margins 1 x 1 c.m. On the anterior aspect of middle of left arm.
(6) A fire-arm wound of exit 1.5 x 1 c.m. On the postero lateral aspect of middle left arm. Probing proved.
(7) A fire-arm wound of entry with inverted margins oval in shape measuring 3 x 2 c.m. On the upper part of left side of abdomen just below costal margin.
(8) A fire-arm wound of exit with everted margins oval shape measuring 3.5 x 2 c.m. On the postero-medial wall of right axilla 7 c.m. Below its apex.
(9) A fire-arm wound of entry 1 c.m. x 1 c.m. On the anterior aspect upper part of right arm.
(10) A fire-arm wound of entry 3.5 c.m. x 2 c.m. On the postero-medial aspect of upper half-right arm.
(11) A fire-arm wound of entry with inverted margins rounded in shape 1 x 1 c.m. Just to the right side of midline 15 c.m. Below the nape neck.
(12) A fire-arm wound of exit 3 x 2 c.m. On the just left side of midline near left costal margins 3 c.m.
Above and medial to injury No,7 Probing proved.
(13) A fire-arm wound of entry oval shaped 2 c.m. Into 1 c.m. On the anterior left thigh 18 c.m. Below anterior superior allic spine.
(14) A fire-arm wound of exit 3 x 2 c.m. On the postero medial left thigh in its middle. Probing proved.
(15) A fire-arm wound of entry 1 x 1 c.m. On the anterior aspect of lower 1/3 of left leg.
(16) A fire-arm wound of exit 3 c.m. x 1 c.m. On the postero medial aspect of left leg.
' Doctor opined that all the injuries were ante-mortem and caused by fire-arm. All injuries except which were on the limbs, were sufficient to cause death in the ordinary course of nature due to major organs damaged (heart, lungs and liver), with internal heavy bleeding shock and cardiopulmonary arrest." Probable time, which elapsed between injuries and death, was few moments to few minutes, and that between death and postmortem was within about 12 hours.
After post-mortem examination, he handed over last worn clothes of the deceased, three signed X-rays, police papers and carbon copy of the post-mortem examination report to Naeem Arif, constable (P.W.8). Exh.PA is correct carbon copy of the post-mortem examination report, whereas Exhs.PA/I and PA/II are pictorial diagrams. Said documents bear signature of the doctor.
' Mst. Shahnaz Akhtar complainant (P.W.2) and Muhammad Nawaz (P.W.3) are the witnesses of occurrence. They devoted their attention to narrate all the relevant facts pertaining to the occurrence, which were either observed by them or came to their knowledge. In addition to this Muhammad Nawaz (P.W.3) also witnessed the recovery of blood-stained earth and crime empties from the place of occurrence, which were taken into possession by the Investigating Officer in his presence and he duly attested the same. Qamar-uz-Zaman (P.W.4) stated that he had seen a car while going towards the village, wherein ljaz, Saleem, Sabir. Shafaqat and Farooq accused were travelling. According to him, said car when reached near the village, the accused after alighting therefrom, went towards the house of the deceased. He also heard burst shots. Then he saw the said car going towards Gujrat side. Thereafter, he came to know about the murder of Asghar Ali.
' Munawar Hussain Bhatti, Inspector/S.H.O. (P.W.13) stated about the acts done by him during course of investigation. Evidence of remaining witnesses is of formal nature.
9. Learned prosecutor had given up the remaining unexamined prosecution witnesses being unnecessary and after tendering in evidence reports of the Chemical Examiner (Exh.PL) and that of Serologist (Exh.PM) declared the prosecution case close.
10. At this juncture, the accused were .Called upon to offer their explanation with regard to the incriminating evidence available on the file against them. Accordingly, they were examined under section 342, Cr.P.C. They professed their profound innocence in the matter and alleged their false involvement in the case. They opted not to make statements on oath in disproof of the allegations levelled against them as envisaged by the relevant provisions of section 340(2), Cr.P.C. They produced no evidence in defence.
11. After hearing both the sides and due appraisal of evidence, the learned Trial Judge pronounced verdict of guilt against the appellants and punished them as aforementioned.
12. The way in which learned counsel for the appellants in his attractive arguments to this Court has put the matter succinctly is as follows. He submits that it was an unwitnessed occurrence taken place in darkness just before dawn. He next submits that the recoveries were disbelieved and Qamar-uz-Zaman (P.W.4), a Waj Takkar witness, was examined by the police after about one month of the occurrence, whose evidence has also been disbelieved. He also submits that the prosecution witnesses were inimical and their statements are not corroborated through an independent source of unimpeachable character. They were also guilty of making dishonest improvements in their statements and Mst. Shahnaz Akhtar (P.W.2) had made deviation from F.I.R.
Version.
13. On the contrary, learned counsel for the State supports the judgment of learned trial Judge.
14. We have with utmost care and devotion considered respective arguments of both the sides. On critical examination of the evidence, we find that Muhammad Nawaz (P.W.3) is inimical towards Ijaz Ahmad appellant and his family. The factum of enmity is well-demonstrated through cross- examination exacted upon this witness. The complainant and Muhammad Nawaz (P.W.3) entered into deliberations and consultations with each other for about an hour's time before lodging of the F.L.R this is a circumstance which makes the prosecution version extremely doubtful. The conduct of A Muhammad Nawaz was most unnatural. He did not raise commotion at the house and allegedly viewed the scene while standing in his own house on a cot. He has denied that the accused had muffled their faces, whereas the complainant specifically alleged that the accused had wrapped clothes on their faces. This witness also admits that sun had not risen when the occurrence took place. For the first time, he stated before the Court that Saleem appellant was carrying Kalashnikov, whereas Sabir was carrying rifle. Likewise, he did not attribute firing to Saleem appellant in his police statement. He' ascribed role of firing to both the appellants in his Court's statement. In this way, his presence at the spot is extremely doubtful. He is not a dependable witness in view of material improvements exacted upon by him. His previous conduct is not above board. We do not find him a reliable witness at all.
15. It is strange to note that general public had gathered at the spot, but none of them was either examined or produced by the prosecution, which fact also is sufficient to conclude that the occurrence remained unwitnessed because it took place in the darkness. Mst. Shahnaz Akhtar, complainant (P.W.2) in the first information report stated that Saleem appellant and Sabir accused (since dead) were merely carrying fire-arms, but did not specify as to what weapons were being possessed by them at the relevant time of occurrence. For the first time, in her statement in Court, she alleged that Saleem appellant was carrying a Kalashnikov, whereas Sabir was having a rifle with him and that Saleem and Ijaz appellants both used their weapons for inflicting injuries on the person of deceased. In the first information report, only Ijaz was ascribed the role of producing wounds at the deceased by means of his Kalashnikov. Then before the trial Court, she stated that the occurrence was also witnessed by her sisters, but during the course of cross-examination , she stated that the occurrence was not seen by them. She clearly admitted in her cross-examination that the accused had muffled their faces with clothes and that Asghar Ali had died within ten minutes. We have very carefully gone through the contents of post-mortem examination report. All vital organs of the body like heart, liver and lungs were totally smashed, and as such his stay in this world beyond few minutes was not possible at all. Had she been available at the spot in her courtyard, then the accused should not have spared her at all to permit' her to become a witness against them. Occurrence did take place in the darkness and identity of the accused was very much in doubt. The prosecution version is not receiving corroboration from any independent source and the witnesses have made highly prevaricating statements. It is very difficult for us to believe that either she was available at the spot or could identify the assailants. We are not prepared to believe her statement in these circumstances. The prosecution version is pregnant with innumerable doubts, the benefit of which naturally goes to the accused.
16. For all these reasons, we accept this appeal and quash convictions and sentences of the appellants. They are directed to be released from jail forthwith, if not required to be detained in any others case.