' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,392/J of 2001 filed by Khuda Bakhsh, Gulzar alias Fauji, Mushtaq Ahmad and Abdul Qayyum, appellants who were convicted and sentenced by Judge, Special Court, Faisalabad, constituted under Anti-Terrorism Act, 1997 vide judgment, dated 29-10-2001 as under:- ' Khuda Bakhsh, Gulzar, Abdul Qayyum and Mushtaq Ahmad:-- "Three years' R. I. Under section 148, P.P.C.
' Death as Tazir with further direction to pay Rs, 10,00,000 as compensation under sections 302/ 149, P.P.C.
' Life imprisonment under section 460, P.P.C.
' Death with further direction to pay a fine of Rs, 1,00,000 -and in default 10 years' R.I. Under section 7 of the Anti-Terrorism Act, 1997.
' Murder Reference No,59/T of 2001 for confirmation of death sentence or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place on 19-8-1999 at 2-30 a.m. Within the jurisdiction of Police Station Chuttyana, District Toba Tek Singh at distance of 15 k.Ms. While the matter was reported to the police by Noor Hassan complainant through complaint Exh.P.D. On the same day at 6-30 and the formal F.I.R. Exh.P.D./1 was recorded by Liaquat Ali M.H.C. On the day at 7-00 a.m. In the police station.
3. Briefly stated the facts of the case are that Noor Hussain, complainant was sleeping alongwith other family members in the compound of his , house while his son Muhammad Yaseen and grandson Waseem Aslarn were sleeping separately in another air conditioned room. At about 2-30 a.m. (midnight), the complainant woke up having heard a noise of jumping and saw that 5 persons to whom he can -identify, if they come before him, committing house trespass into his house by scaling over the boundary wall. Four of them were holding rifles while other one was armed with pistol. One of the accused aimed his rifle towards the complainant and threatened him that if he made a noise, he would be killed. The remaining accused got awaken his other family members and confined them in a room. Two accused remained watching the family members of the complainant while three accused said that the air-conditioned room be got opened, otherwise they would be fired. The complainant due to fear of his life called his son. As soon has he opened the door, the accused entered the room. They also apprehended Muhammad Yaseen and Waseem at gun-point and demanded Rs,20,00,000 which was brought from England. They further directed that the guests be also got awaken. One of the accused opened the briefcase which was lying in the iron Pati and took the album. During the period Muhammad Yasin resisted on which the accused raised the Lalkara that he be murdered and the person who was holding the rifle made straight firing at Yaseen which hit him in the front side of his abdomen due to which he fell down.
Having heard fire reports, the other family members of the complainant made hue and cry. Tariq Naveed his nephew who was residing in the neighbourhood raising Lalkara to the effect that he was coming. The accused hearing this Lalkara fled away from the spot. In the meanwhile Tariq Naveed also reached there. Muhammad Yaseen succumbed to his injuries at the spot.
4. Investigation of the case was taken over by Obaid-ur-Rehman S.-I./S.H.O. P.W.13 who proceeded to the place of occurrence inspected the dead body of Yaseen deceased, prepared injury- statement Exh.P.A. Inquest, report Exh.P.B., recorded the statement of Muhamamd Hashim and Tariq Mahmood P. Ws. Under section 161, Cr. P. C . Inspected the spot, collected blood through cotton vide memo. Exh.P.K. Collected one crime-empty of 222 bore rifle and one led vide memo. Exh.P.G.
Prepared rough site plan .Exh.P.L. Thereafter investigation was transferred to D.S.P. Range Crime Faisalabad. Then investigation was entrusted to Naveen Arshad, Inspector P.W.12, who on. 5-7-2000 arrested Mushtaq Ahmad, then on 12-7-2000 arrested Khuda Bakhsh, Gulzar and Abdul Qayum, then on 26-7-2000, he arrested Liaquat Ali and on 6-8-2000, Fauji Gulzar accused led to recovery of rifle 7 mm P.4, Cycle P.6,and licence of rifle 7 mm P.5 which was taken into possession vide memo. Exh.P.I., on the same day, Abdul Qayum while in police custody got recovered fake pistol .30 bore P.3 which was taken into possession vide memo. Exh.P.H. Thereafter investigation was entrusted to Sultan Ali, S.-I. P.W.11, who after completion of investigation and all the other legal formalities challaned Khuda Bakhsh, Gulzar, Abdul Qayum, Mushtaq, Liaquat Ali and Muhammad Asghar to face the trial.
5. At the trial prosecution in order to prove its case produced fourteen Witnesses in all, thereafter learned Public Prosecutor tendered in evidence report of Chemical Examiner, Exh.P.O., report of Serologist Exh.P.P., report of Forensic Science Laboratory Exh.P.Q. And closed the prosecution evidence, then the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication, then Muhammad Latif H.C. 325, Husnan Raza, C-130, Muhammad Officer Khan and Munir Khan, H.C. No,2550 were examined as C.W.1 to C.W.4 respectively. After conclusion of the trial, Liaqtlat Ali accused was acquitted while the other four accused were convicted and sentenced mentioned above by the learned trial Court.
6. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. Statements of C.Ws. And other relevant material available on record submits that no body was named in the F.I.R. No description of any of the accused was given therein; extra- judicial confession allegedly made by Mushtaq appellant is a fabricated one for the reason that Muhammad Aslam who appeared before the trial Court as.P.W.5 did not mentioned about the same though he was allegedly present at that time; Mushtaq appellant was not handed over either to the police by Muhammad Afzal, Advocate P.W. Or Noor Hussian complainant, he had made extra-judicial confession through inducement which is inadmissible in evidence, crime-empty recovered from the spot did not match with the weapon allegedly recovered on the pointation of the appellant, neither the appellants nor the eye-witnesses were known to each other and at the time of identification parade the appellants have taken the objection before .The Magistrate P.W.14, that they were shown to the witnesses in Police Station Chuttyiana during the course of investigation five persons including one Babar, who was an employee of Azhar Judge and the said Azhar Judge was a fast friend of Muhammad Afzal, Advocate were also arrested but they were let off by the police with mala fide intention; Muhammad Afzal, Advocate P.W. In this case had been making applications to the higher Police Authorities that the actual culprits in this case are Babar etc. Noor Hussian P.W. And Muhammad Waseem Aslam P.W. Had admitted in their statements Exh.D.A. And Exh.D.F. That it was Babar who had killed Yaseen son of the complainant; Abaid-ur- Rehman, the initial Investigating Officer, had stated before the learned trial Court that Muhammad Iqbal, Advocate, P.W. Had been making applications against him for the reasons that he wanted that Babar etc. Should be challaned in this case; the identification parade loses its significance in view of the statements of P.Ws. 7 and 8; it were the statements of Noor Hussian and Muhammad Afzal P.Ws. That Mushtaq appellant had come to the house Of Noor Hussian complainant on 23-6- 2000 to make extra-judicial confession, had Noor Hussain seen Mushtaq appellant at the time of occurrence, he would have readily stated there and then to have identified Mushtaq appellant as one of the assailant; report of the Fire-arm Expert Exh.P.Q. Is of no relevance to the present case because the same was with regard to Police Station Abdul Hakeem, District Khanewal, and according to learned counsel the complainant had admitted before the trial Court that if Mushtaq appellant gives the true version he would be forgiven.
7. Learned counsel for the remaining appellants except Mushtaq submits that the identification parade was held after the period of 11 months from the date of occurrence and after such a long delay it was very difficult to identify the accused. According to her, in fact, main accused in this case is Muhammad Afzal, Advocate and he should have been challaned and punished by the learned trial Court being the real conspirator in this case. Both the learned counsel for the appellants submit that the prosecution having failed -to prove its case against the convicts, they are entitled to clean acquittal.
8. Learned counsel for the complainant submits that the two eye-witnesses namely Noor Hussain and Muhammad Waseem Aslam P.Ws. 7 and 8 while identifying the appellants during the identification parade held by Magistrate P.W.14 had also given the specific roles of the accused before the said Magistrate, Noor Hussain complainant had identified the appellants namely Khuda Bakhsh, Gulzar and Abdul Qayum while Muhammad Waseem Aslam P.Ws. Identified Gulzar and Khuda Bakhsh appellants, Mushtaq appellant had also made a confessional statement under section 164, Cr.P.C. In which he not only implicated himself but also his co-accused; it was only when Mushtaq appellant made extra-judicial confession and confessional statement that the co- accused were arrested and recoveries were effected from them; there is no reason or motive with the complainant and Muhammad Waseem Aslam to falsely implicate the appellants; the accused had been taken different stances at different stages in order to get acquittal and that the defence counsel had put scandalous suggestions to Muhammad Afzal, P.W. And Noor Hussain' complainant in order to prove him to be a person of bad character although the allegations were false and absurd. Concluding his submissions, learned counsel submits that the prosecution has been successful in proving its case against the appellants.
9. Learned Assistant Advocate-General adopts the arguments advanced by learned counsel for the complainant.
10. We have heard learned counsel for the parties at a great length and have -gone through the record with their able assistance. In the instant case, the occurrence had taken place at 2-30 a.m.
(mid-night) on 19-8-1999 while the matter was reported to the police through complainant Exh.P.D.
At 6-30 a.m. The same day and the formal F.I.R. Exh.P.D./1 was recorded at 7 a.m. The complainant in this case is Noor Hussian father of Muhammad Yaseen, the deceased. A bare perusal of complaint Exh.P.D. Would show that there is no mention of light either natural or unnatural, so it was very difficult for the P. Ws. To identify the accused in dark hours of the night. In the site plan Exh.P.F.
Which was prepared by the draftsman on 23-8-1999 though he has shown an electric owl) but in our opinion the same was shown when the prosecution felt its mistake about the non-mention of any source of light in the F.I.R. Tariq Naveed who had allegedly seen the accused persons coming out from the house at point No,8 was never produced by the prosecution. There is only one injury on the person of the deceased. We are unable to understand why Mushtaq appellant would make extra-judicial confession and that too on 23-6-2000, that is 10 months after the occurrence.
Mushtaq appellant is resident of Talumba District Khanewal which is about 20 kilometers from Toba Tel Singh. To our mind, there was no necessity on the part of Mushtaq to make extra-judicial confession when neither the police was after him nor there was any apprehension of his arrest.
Muhammad Aslam examined as P.W.5 who was allegedly present at the time of making extra- judicial confession in the house of Noor Hussain, the complainant in the presence of Mian Muhammad Afzal, Advocate but while appearing in the witness-box before the trial Court he did not utter even a single word regarding the extra-judicial confession. Moreso, Mushtaq appellant when allegedly made extra-judicial confession before Mian Muhammad lqbal, Advocate P.W. In the presence of Noor Hussain, they did not make even, a telephonic call to the police , in this regard nor apprehended him. Three very important questions were never asked by the Magistrate. Who recorded the confessional statement of Mushtaq convict and those are the (1) since when the convict was in police custody (2) and that he will not be handed over to the police after making such confessional statement and (3) why he was making the confession. The statement of Mian Muhammad Afzal, P.W. Regarding extra-judicial confession made by Mushtaq appellant was recorded on 28-6-2000 without any proper explanation. Further the identification parade was held 10/11 months after the occurrence so it was very difficult for the P. Ws. To have identified the assailants at the time of identification parade, an objection was raised by the accused that earlier to the identification parade they were shown to the witnesses in Police Station Chuttayana. Only 15 dummies were joined atthe time of identification parade alongwith three accused which is against High Court Rules and Orders and judgments on the subject as according to the precedents at least there should be 7 dummies for one accused person. We are of the considered view that the extra- judicial confession was obtained through inducement and on the promise that if Musthaq made correct statement, he would be pardoned and this fact has been admitted by Noor Hussain, the complainant before the learned trial Court. On the other hand version of the appellant at page 225 of the paper book Mark "A" seems to be more plausible, convincing and natural and specially when Mushtaq stated that he met Mian Muhammad Afzal, Advocate P.W. Through Muhammad Aslam, F.C. Mushtaq appellant was a student of LL.B. When he was involved in this case. He being resident of Talumba _District Khanewal (220 kilometers from the place of occurrence) it was, not possible for him to have come there and commit/dacoity in the house of Noor Hussain. Even according to Judicial record this was the first case against him.
11. In the case in hand, one Babar alongwith others was also arrested. This fact has been admitted by Noor Hussain complainant at page 237 of the paper book. Some portions from his statement are reproduced hereunder:-- "I have made a statement before the said D.S.P. I do not remember if I had stated before the said D.S.P. That a Khurra was led to the Dera of Azhar alias Judge from where Babar afore-said was arrested, confronted with Exh.D.A. Portion A to A wherein it is also recorded. I do not remember if as to whether portion B to 43 of Exh.D.A. Was got recorded by Re before D.S.P. Range Crime Branch, Faisalabad, confronted with Exh.D.A. Wherein it is so recorded. I do not remember as to whether I had stated before the said D.S.P. That the F.I.R. Of this case was registered on the third day of the occurrence, confronted with portion C to C of Exh.D.A. Wherein it is so recorded. I had not stated before the D.S.P. That I had gone to Police Station Chuttayana for the identification of accused Babar, Muhammad Hassan, Aslam, Sarwar and Sajid, confronted with portion D to D of Exh.D.A.
Wherein it is so recorded. I had not stated to the D.S.P. That thereafter S.-I. Ahaid-ur-Rehman brought the aforesaid accused persons at my house where my daughter Mst. Nusrat Parveen my wife and Mst. Robina had also identified them. Confronted with portion E to E of Exh.D.A. Wherein it is so recorded."
' A perusal of the above-said cross-examination shows that initially Babar and others persons mentioned above were arrested. Babar was employee of Azhar alias Judge and said Azhar was a close friend of Mian Muhammad Afzal, Advocate, P.W. And in order to save Babar, Mian Muhammad Afzal, P.W. Had been playing Darama by making Mushtaq appellant as a scapegoat. It is also noteworthy that Mian Muhammad Afzal, Advocate P.W. Had been making applications against Obaid-ur-Rehman, S.-I./ S.H.O. The first Investigating Officer that he had let off Babar and others who were the actual culprits in this, case. This shows. That the prosecution itself was not sure about the actual assailants. At this stage we may also reproduce some portion of the statement of Muhammad Waseem Aslam P.W.8 specially Exh.D.F. At page 49 of the paper book which reads as under:-- "In my statement before the police I had not mentioned the names of Khuda Bakhsh, Gulzar and Mushtaq accused. I came to know about their names after. Their identification in District Jail, Jhang.
I had not stated in my statement about the role of each accused by giving their names. I had not given the name of.Khuda Bakhsli in my statement under section 161, Cr.P.C. That the fire was made by him. However, I had stated before the police that the fire piercing through the abdomen of Muhammad Yaseen deceased had struck against the wall, confronted with Exh.D.E. Wherein the mention of wall is not there. I had not stated before the police that the occurrence was committed by 5 persons, confronted with Exh.D.E. Wherein it is so recorded. I had not stated before the police that at the time of occurrence one of the accused had opened the brief-case lying on an iron box and had taken out a photo album containing photographs of daughter of my Nana and her children residing in England, confronted with Exh. D. E. Wherein it is so recorded. I had stated before the police that the accused had demanded a sum of Rs,20,00,000 confronted with Exh.D.E. Wherein it is not so recorded. However, amount of Rs,24,000 has been recorded I had informed the police that as a 'result of murder Muhammad Yaseen a sense of insecurity prevailed in the village, confronted with Exh.D.E. Wherein it is not so recorded."
' We would also like to refer here portion A to A of Exh.D.F. Page 249 of the paper book:- {{URDU TEXT}} ' In his this statement, Muhammad Waseem Aslam P.W. Had categorically stated `that it was Babar who had committed the murder of the deceased. It seems that the complainant Noor Hussain has been playing in the hands of Mian Muhammad Afzal P.W. And whatever Muhammad Afzal P.W. Had been suggesting, Noor Hussian had been toeing the same.
' If the version of prosecution and Muhammad Afzal P.W. And that of Mushtaq appellant Mark A are put in juxta-position, the version of Mushtaq appellant seems to be more plausible, convincing and natural one. A bare perusal of statement of Muhamamd Afzal P.W. And Mushtaq convict also proves that Mushtaq has become the victim of exploitation done by Mian Muhammad Afzal due to the fact that Mushtaq appellant being unemployed was financially very weak.
' So far as report of the Forensic Science Laboratory is concerned, the crime-empty was sent to the Fire-Arms Expert about one year after the occurrence and recovery thereof. From Abdul Qayyum convict appellant an artificial pistol was recovered. No independent witness about recovery was produced by the prosecution. There is also violation of section 103, Cr.P.C.
After having critically examined the entire prosecution case we are fully satisfied in our mind that the prosecution had remained unsuccessful in proving its case against, the appellants beyond any shadow of doubt rather the case of the prosecution is, full of doubts. The settled law is that benefit of doubt is always to be given to an accused not as a matter of grace but as a matter of right. We are, therefore, constrained to allow the said benefit to the appellants. Resultantly, the appeal filed by all the four appellants is accepted. Conviction and sentence. Recorded against them by the trial Court is set aside. They area-acquitted of the charge. The appellants are behind the bar and shall be released forthwith, if not required to be detained in any other case. Their death sentence is not confirmed. Murder Reference is replied in the negative.