' This judgment will dispose of Criminal Appeal No,51-J of 2002 filed by Inayat Ullah, appellant, who was convicted and sentenced by learned Special Judge, Anti-Terrorism, Sargodha vide his judgment dated 22-12-2001 as under :-- ' Under sections 302(b)/149, P.P.C. Imprisonment for life and to pay Rs,25,000 as compensation to the legal heirs of Ghulam Yasin deceased under section 544-A, Cr.P.C..
' Under section 148, P.P.C. Two years' rigorous imprisonment with a fine of Rs,5,000 in default three months' rigorous imprisonment.
' Under section 324/149, P.P.C. Five years' rigorous imprisonment with a fine of Rs,10,000, in default six months' rigorous imprisonment.
' Under section 7 of Anti-Terrorism Act, 1997 imprisonment for life with a fine of Rs,20,000 in default six months' rigorous imprisonment.
' Under section 353, P.P.C. Two years' rigorous imprisonment.
' All the sentences were ordered to run concurrently, with the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case had taken place at 4-30 a.m. On 6-9-1998 within the jurisdiction of Police Station Saddar, Bhakkar at a distance of 11 k.Ms. While the matter was reported to the police on the same day at 5-10 a.m. Through complainant Exh.P.B by Ahmad Khan S.-I/S.H.O. Police Station, Saddar, Bhakkar and the formal F.I.R. Exh.P.B/1 was recorded by Fakhar-uz-Zaman, Head Constable P.W.2 in the Police Station at 5-55 a.m.
3. Brief facts of the case are that on 6-9-1998 complainant Ahmad Khan S-I/S.H.O., Police Station, Saddar, Bhakkar in order to arrest the accused in case F.I.R, No,311 dated 5-9-1998, under section 302/364-A, P.P.C. Of Police Station Saddar Bhakkar, constituted a raiding party consisting of Ghulam Muhammad S.1, Mumtaz Ali, A.S.-I. Muhammad Tariq A.S.-I, Abdul Sattar, A:S.-I, Rafi Ullah, Manzoor Hussain, A.S.-I armed with rifles, Khalid Ali Head Constable armed with Dang, Ghulam Yasin 514-C armed with G-3 rifle, Muhammad Afzal 198-C armed with SMG, Tariq Iqbal 129-C armed with semi automatic rifle, Muhammad Riaz 358-C armed with SMG, Muhammad Rafi 203-F and Muhammad Saeed 336-C armed with MP-5 rifles and one hundred cartridges each, Muhammad Arif 211-C, Zafar Iqbal 254-C having hand-cuffs, the police force of Police Station Darya Khan, Habib Ullah, A.S.I armed with MP-5 rifle, Ghularn Abbas 578-C, Ahmad Nawaz 123-C, Muhammad Iqbal 124-C armed with G-3 rifles, Ijaz Hussain 96-C, Ahmad Shafi ,73-C armed with semi-automatic rifles, police force from Police Station Sarai Mohajir Muhammad Asghar A.S.-I, Muhammad Aslam 319-C, Arnan Ullah 94-C. Ashiq Hussain 194-C, Ashiq Hussain 404-C, Noor Muhammad 260-C, armed with G-3 rifles, Liaqat Ali 536-C armed with semiautomatic rifle, the police party from`olice Station City Bhakkar, Muhammad Munir, S.-I. Armed with service revolver, Tariq Habib H.C, 100, Zafar Iqbal 181-C, Asghar Ali 455-C, armed with SMG, Mukhtar Ahmad 407-C armed with G-3 rifle alongwith bullets for raiding the house of accused Ehsan Ullah son of Haq Nawaz and went to his house by police vehicles and raided that but accused Ehsan Ullah was not available and police party came to know that he and his brother Aman Ullah proclaimed offenders in case. F.I.R. No,158 of 1998 under sections 435/382/341, P.P.C. Of. Police Station Saddar, Bhakkar were in the house of Hafeez Ullah resident of China Wali DalChli Katchi Shahani where accused Sana Ullah brother of Hafeez Ullah (a proclaimed offender in case F.I.R. No,109 of 1998 under sections 10/11/16, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered at Police Station Saddar Kabirwala, District Khanewal) and some other armed criminals were present, therefore, residential house of accused Hafeez Ullah was ri,ded at about 4-30 a.m. The police party witnessed accused Hafeez Ullah, Sana Ullah, Ehsan Ullah and Aman Ullah armed with kalashnikovs, Shah Nawaz, Faiz Ullah, Ismat Ullah, Inayat Ullah and Shah Jehan armed with guns and identified them in the head lights of the vehicles. As soon as the complainant and members of the raiding party alighted from the V'ehicles and were going to encircle the house of Hafeez Ullah for the arrest of accused, then accused Hafeez Ullah and Sana Ullah fired with kalashnikovs which hit Ghulam Yasin 514-C on various parts of his body. Accused, Ehsan Ullah and Aman Ullah fired with kalashnikovs at complainant hitting him on his left arm and Vakhhi. Complainant and Ghulam Yasin, Constable fell down and the other accused resorted to firing with, guns whereupon police party took the shelter and fired in self-defence. 'The accused managed to slip away from the back door of the house towards the Katcha of the River Sindh. Ghulam Yasin, Constable succumbed to the injuries on the spot.
4. After registration of the formal F.I.R. Ghulam Muhammad, S.-I, P.W.11 inspected the dead body of Ghulam Yasin, Constable, prepared injury statement Exh.P.G, inquest report Exh.P.H, inspected the spot, prepared site plan Exh.P.J, collected blood-stained earth from the place of murder of constable Ghulam Yasin and from the place of sustaining injuries by Ahmad Khan, S.-I. Vide memos. Exh.P.D and Exh.P.E, also took into possession police cap of Ghulam Yasin, Constable vide memo. Exh.P.D. On 20-10-1998, investigation of the case was entrusted to Guisher Ahmad, S.-I P.W.13. On 25-12-1998 accused Shah Jehan appeared before him, he did not arrest him, recorded his defence evidence, found him innocent and produced him before D.S.P. Then on 3-1-1999 Muhammad Akram, Inspector P. W.12 arrested accused Aman Ullah and recovered a .12 bore gun from him with six live cartridges which were taken into possession vide memo. Exh.P.L, thereafter, Aamar Mushtaq, Inspector CIA, P.W.9 arrested accused Inayat Ullah and Khalid Pervez and recovered a .12-bore (double barrel) gun P.4 from Khalid Pervez which was stated to be with Inayat Ullah at the time of instant occurrence vide memo. Exh.P.F. After completion of the investigation, the accused Shah Jehan, Aman Ullah and Inayat Ullah were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 15 witnesses in all, Then learned Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.E.E, report of Serologist Exh.P.F.F and closed the prosecution evidence, thereafter, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. After conclusion of the trial, Shah Jehan and Aman Ullah accused were acquitted while the present appellant was convicted and sentenced by the learned trial Court as stated above.
6. In support of this appeal, learned counsel for the appellant submits that there are nine accused in this case, that fatal shots towards Ghulam Yasin deceased are attributed to Hafeez Ullah and Sana Ullah, who were armed with kalashnikovs while Ehsan Ullah and Aman Ullah fired at the complainant Ahmad Ali, S.-I/S.H.O., that only general firing is attributed to the present appellant, that there is no public witness in this case, that appellant was arrested on 28-1-2001, that it is a case of false implication, that appellant was, never involved in any criminal case prior to the present occurrence according to the record, that he was not involved even in case F.I.R. No,311 dated 5-9-1998 registered under sections 302/364-A, P.P.C., that no case is made out against the appellant and he is entitled to acquittal.
7. On the other hand, learned A.A.-G, submits that appellant was the member of unlawful assembly, that he had also joined hands with. His co-accused, that it is a case in which one person lost his life while the complainant S.-I/S.H.O. Was also injured, that learned trial Court had rightly convicted the appellant. He supports the judgment of the learned trial Court.
8. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, nine accused were named in the F.I.R., Ehsan Ullah accused, who has caused injuries to the complainant was murdered later on, that's, on 19-11- 1998 during police encounter and in this regard a case F.I.R. No,249 dated 19-11-1998 under sections 324, 353, 185/34, P.P.C. Was registered in Police Station Darya Khan on the statement of Muhammad Ramzan, A.S.-I. Aman Ullah and Shah Jehan were acquitted. By the learned trial Court. Hafeez Ullah, Sana Ullah, Shah Nawaz, Faiz Ullah and Asmat Ullah are proclaimed offenders. Present appellant was not one of the accused in case F.I.R. No,311 dated 5-9-1998 registered under sections 302/364- A, P.P.C. In which the proclaimed offender were required, he did not cause any injury either to the deceased or to the injured P.W., the complainant, his role is of ineffective firing. As far as, abscondence of the appellant is concerned, this Court and the Honourable Supreme Court of Pakistan had held that even the accused persons who are innocent in the case, become absconder in order to save their lives. I have gone through the police file as well as judicial record, according to the said record, present appellant was not involved in any case prior to the present occurrence, no overt act is attributed to him either towards the deceased of the injured P.W.
(complainant). I a.m. Unable to understand, that how the complainant, who had stated in the F.I.R.
That he became seriously injured could give the names of all the accused even with their parentage although he does not know some of accused prior to the present occurrence including the present appellant. The possibility of false implication of the appellant cannot be ruled out in the instant case. It is also important to note here, that later on, one of the Investigating Officer declared Aman Ullah and Shah Jehan as innocent and they have been .Acquitted by the learned trial Court although the F.I.R. Was Judged by a police officer.
9. After having heard the learned counsel for the parties and going through the record I am of the considered opinion that it is a case in which there are so many doubts and benefit of the same has to be granted to the accused person not as a matter of grace but as a matter of right. Resultantly, the appeal filed by the appellant is accepted. Conviction and sentence recorded against the appellant by the learned trial Court is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case.