' MUHAMMAD FARRUKH MEHMUD J.---Mansoor Ahmad son of Allah Yai Allah Bakhsh alias Bakhsha son of Ghulai Muhammad and Riaz Hussain son Zulfiqar, appellants alongwith others wei tried by Ch. Muhammad Hussain Makii Judge, Special Court for Suppression Terrorist Activities Act, 1975, Dera Ghazi Khan for causing the murders of Muhammad Fazil son of Ismail and Ghulam Mustafa alias Munshi and for firing on the persons of Abdul Khaliq, P.W.2, Faiz Ahmad, P.W.4; Muhammad Boota, P.W.5; Mukhtiar Ali (given up P.W.); Muhammad Tariq (given up P.W.) and Imtiaz Hussain (given up P.W.) and vide his judgment dated 15-6-1999 convicted the appellants under section 302(b), P.P.C. And sentenced them to life imprisonment on two counts. The appellants were also ordered to pay compensation of Rs,1,00,000 each on two counts to the legal .Heirs of both the deceased in default whereof to further simple imprisonment for six months. The appellants were also extended benefit of section 382-B, Cr.P.C. Vide the same judgment, Qadir Bakhsh; Munir; Muhammad Nawaz; Muhammad Ramzan, Muhammad Hanif; Mumtaz Hussain; Allah Bakhsh son of Malook; Muhammad Asmat Nawaz; Nasir Abbas and Allah Ditta co-accused were acquitted of all the charges. Another co-accused Ghulam Mustafa alias Masti could not be tried by the learned Court as he was murdered prior to trial.
2. The occurrence took place in the vicinity of Chak No,496/TDA situated at a distance of 40 kilometers from Police Station Chobara, District Layyah at about 15/20 minutes prior to Maghribwela on 11-2-1994. F.I.R. No,34 of 1994 Exh.P.0 was recorded by Muhammad Bakhsh S.I./S.H.O.
At the police station (who was not produced) on the statement of Abdul Khaliq P.W.2, under sections 302/324/148 and 149, P.P.C.
3. The relevant facts as given in the F.I.R. Are that the complainant along with Ghulam Mustafa alias Munshi (deceased); Safdar Ali; Faiz Ahmad; Muhammad Boota; Ch. Mukhtar Ali and Muhammad Tariq were going towards their house in a Dolla Registered No, 1830/BUB which was being driven by one Imtiaz. Ch. Mukhtar Ali was dropped at Adda Truck and the complainant along with his companions were moving towards the house of Ch. Muhammad Tariq to drop him at his place.
Muhammad Tariq had some enmity with Nasir Baluch and others due to certain murder cases. At about 15/20 minutes prior to Maghrib time when the complainant and his other companions reached in the agricultural land of Sher Muhammad situated in the vicinity of Chak No,496/T, they saw that the road was closed by digging out dried water course. The complainant and his companions stopped there, as it was impossible to proceed further. Muhammad Tariq alighted from the Dolla to fill the water course so that the complainant party could proceed. At that time, Muhammad Hanif exhorted Lalkara and fired at Muhammad Tariq which grazed the body of Muhammad Tariq. Muhammad Nawaz also fired at Tariq which luckily did not hit him. Qadir Bakhsh also exhorted Lalkara and fired with his rifle at the complainant which did not hit and passed through the Chader worn by the complainant. Qadir Bakhsh again exhorted Lalkara and asked his companions that they should not spare the complainant party. Thereafter Allah Bakhsh; Allah Ditta; Muhammad Ramzan; Manzoor and Imam Bakhsh started indiscriminate firing at the complainant and his companions and at the Dolla. It is further stated in the F.I.R. That Nasir who was armed with Kalashnikov fired at Mustafa alias Munshi deceased hitting him on his head, neck and shoulder; Mustafa alias Masti exhorted Lalkara and fired with his Kalashnikov which hit Muhammad Fazil.
Muhammad Fazil and Mustafa fell down due to the injuries. The complainant, Muhammad Tariq, Safdar Muhammad Boota and Imtiaz laid down in the dried water course and saved their lives by taking refuge behind the sand dune. While the complainant and his companions were lying behind to save their lives, Meer, Mansoor, Mumtaz, Riaz, Allah Bakhsh alias Bakhsha, Asmat Ullah who were armed with rifles fired at the complainant and others. Nasir Baluch also continued firing. However, the firing of Nasir Baluch, Qadir Bakhsh and others remained ineffective as it did not hit the complainant party. The hue and cry raised by complainant and his companions attracted the nearby residents who came and-exhorted that they have reached the place of occurrence. On seeing the P.Ws., Nasir Baluch and Qadir Bakhsh etc. Along with their companions left the scene of occurrence. Muhammad Fazil and Mustafa died at the spot. The motive given in the F.I.R. Was that there was long standing enmity between Nasir Baluch and Muhammad Tariq due to some murder cases and although a compromise was effected due to the efforts of the complainant and Mustafa deceased with the accused party and due to that the whole Jat brotherhood became united, Nasir Baluch felt aggrieved due to this compromise and he had been issuing threats that he would take revenge and would involve the complainant party in false cases. Qadir Bakhsh etc. Were also annoyed with the complainant party as they were siding with Mukhtar Ali and others and Mukhtar Ali had allegedly caused loss of lacs of rupees to Qadir Bakhsh etc.
4. After the registration of case Muhammad Bakhsh S.I/S.H.O, took the Dolla in custody vide memo.
Exh.P.D signed by him and Abdul Khaliq P.W.2 and Safdar Ali P.W.3; three empties of .12 bore gun were also taken into possession from the place of occurrence vide memo. Exh.P.G; five empties of cartridges 303 and five live cartridges of 303 along with one missed cartridge 303; five empties were also taken in possession vide Exh.P.H; blood-stained earth relating to Mustafa deceased was taken into possession vide memo. Exh.P.I; blood-stained earth relating to Muhammad Fazil deceased was also taken into possession vide memo. Exh.P.K; eight empties of kalashnikov and five live bullets of kalashnikov were also taken into possession vide memo. Exh.P.J. 12 empties and two live cartridges of kalashnikov were also taken into possession from the place where Muhammad Fazil deceased fell-vide memo. Exh.P./L. All the afore-referred memos. Where / signed by P.W.2 Abdul Khaliq, P.W.3 Safdar All and Muhammad Bakhsh S.I./S.H.O. (not produced). Manzoor Ahmad, appellant was arrested by P.W.8 Saifullah S.I. On 6;3-1994 who led to the recovery of rifle P.1 on 16-3- 1994 and the same was taken into possession vide memo. Exh.P.M. Allah Bakhsh and. Riaz appellants were arrested on 20-3-1997. Allah Bakhsh led to the recovery of .12 bore gun P.2 on 'the same day which was taken into possession vide memo. Exh.P.N. Riaz also led to the recovery of .12 bore gun on the same day which was taken into possession vide recovery memo. Exh.P.O. All the recoveries were effected by P.W.8 Saifullah S.I., C.I.A.
5. After the completion of investigation, the case was sent up for trial and thirteen persons were tried. The fourteenth accused, Ghulam Mustafa alias Masti died before the trial. The accused pleaded innocence and claimed trial.
6. During trial, the prosecution produced 12 witnesses to support its case. P.W.1 Dr. Abdul Majeed appeared as P. W.1 and stated that he conducted the post-mortem examination of Muhammad Fazil and there was one fire-arm injury on the upper most part of his left buttock which proved fatal. He also stated about the autopsy conducted upon the dead-body of Ghulam Mustafa deceased and according to his report there was one fire-arm injury on the medial to the right scalpula near to neck and another superficial wound on the left shoulder joint of the deceased.
According to him, injury No,1 proved fatal. P.W.2; P.W.3; P.W.4; P.W.5; P.W.6; and P.W.7 were produced as eye-witnesses. P.W.6 also stated about the motive. P.Ws.8 and 10 stated about the investigation of the case. P.W.11 Maqbool Ahmad, Constable stated about the recoveries from Allah Bakhsh and Riaz. Rest of the witnesses were formal in nature.
7. After completion of charge statement of the appellant was recorded under section 342, Cr.P.C.
Who pleaded innocence and stated that they were involved due to their enmity with the complainant party and relationship with Nasir Abbas co-accused. They also stated that it was an unwitnessed occurrence which had taken place at about 8-30 p.m. In the dark of the night. The appellants, however, did not appear as witnesses in their defence as contemplated under section 340(2), Cr.P.C. Nor they lead any defence evidence.
8. The learned counsel for the appellants has argued that there is not an iota of evidence available against the appellants and they deserved to be acquitted. On the other hand the learned counsel on behalf of the State has opposed the acquittal and has justified the impugned judgment.
9. I have heard the learned counsel for the parties at length, perused the evidence on record and have also gone through the impugned judgment. The ocular account was furnished by P.Ws.2 to 7.
P, W.2 who was also complainant of the case levelled general allegations against all the accused and stated that the occurrence took place after the sunset. He further stated that nothing was taken in his presence from the place of occurrence by the police on the day of registration of case.
Resultantly, he was declared hostile and was cross-examined by A.D.A. During cross-examination he stated that the F.I.R. Was not readover to him that he saw the dead body at the Dera of Mukhtar Ahmad P.W.; that his thumb-impressions were obtained on blank-papers. In other words he denied the whole prosecution story. P.W.3 Safdar Ali, P.W.4 Faiz Ahmad and P.W.5 Muhammad Boota stated that they knew nothing about the case and when cross-examined by the public prosecutor .They made it clear that the accused present in Court were not culprits. P.W.6 stated that Mustafa accused (since dead) and Nasir Abbas were responsible for firing on Fazil and Mustafa deceased and as far as other accused including the appellants were concerned, their fires hit vehicle only.
P.W.7 who according to the F.I.R. Was driver of the Dala stated that at the time of occurrence the lights were on and some unknown persons had fired at the Dala and as he became unconscious he could not see who were the assailants. This witness was not cross-examined by the prosecution.
In other words his evidence was accepted.. An analysis of the ocular account shows that there is nothing incriminating against the appellant to link them with the murders. Of the deceased. P.W.7 was not even cross-examined and according to him it was a night occurrence and the assailants were not known. In these circumstances, the ocular testimony cannot be used against the appellants. According to F.I.R. The occurrence took place 15/20 minutes prior to Maghribwela on 11- 2-1994 yet the matter was reported to the place on the next day i,e, 12-2-1994 at 5-00 p.m. This delay has not been reasonably explained by P.W.2. Moreover, while appearing before the Court, he stated on oath that the occurrence took place after the sunset, therefore, F.I.R. Could hardly be used as a corroborative evidence in the circumstances of the case. The medical evidence states about the fact that the deceased died due to injuries caused by fire-arms but no inference could be drawn that the fires were inflicted by the appellants. The motive as given in the F.I.R. Was not proved during trial. P.W.2 stated that there was some enmity between Nasir Abbas accused and Mukhtar P.W. P.W.6 stated that he had long standing enmity with Nasir Abbas accused. So, nothing is on record that the appellants had any motive to participate in the occurrence. The learned trial Court has convicted the appellants on the basis of recoveries alone, although admittedly no report of Forensic Science Laboratory 'was available on the file to show that the empties recovered from the place of occurrence were fired by the weapons recovered from the appellants. I am afraid in such a circumstance recoveries could hardly he made a reason for conviction of the appellants.
On the basis of the same evidence the learned trial Court was pleased to acquit rest of the accused and convicted the appellants although no independent strong corroboratory evidence was available against the appellants. In these circumstances I am of the considered opinion that the prosecution has miserably failed to prove its case against the appellants. Resultantly, I allow this appeal, set aside the judgment passed by the learned trial Court dated 15-6-1999 and acquit the appellants of all the charges. They would be released from jail for with if not required in any other case.