This judgment will dispose of Criminal Appeal No, 157 of 2002 directed against the judgment dated 14-1-2002 passed by learned Judge Special Court, Anti-Terrorism. Lahore whereby he convicted the appellants under sections 324/148/149, P.P.C. and section 7(1)(b) of ATA 1997 and sentenced them to undergo three years, R.I. each with fine of Rs,13,000 each or in default six months, R.I. They were also awarded punishment of 10 years, R.I. each with fine of Rs,30,000 each under section 324/149, P.P.C. or in default six months R.I. each under section 7(1) (b) of the ATA, 1997 the appellants were sentenced the life imprisonment each with fine of Rs,50,000 each or in default six months R.I. each. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. The facts in brief as narrated by the complainant Riaz Ali Shah Inspector are that he on 16-2- 2002 after getting information about the presence of Khadim alias Khadu and Muhammad Mansha P.Os in a case F.I.R. No,23 of 1999 registered under section 392, P.P.C. alongwith other police officials proceeded to the spot where raiding parties of various police stations had already reached there in order to apprehend the abovesaid accused. After seeing the police party the accused started firing aiming at police party. There was exchange of firing about one hour. On cease-fire it revealed that Khadim. Talib and Riasat Ali accused have died while Shaukat and Muhammad Mansha were apprehended at the spot with their respective arms and ammunition.
Riaz Shah Inspector after completing all necessary proceedings prepared injury statement of Riasat Ali deceased vide Exh.P.0 and inquest report Exh.PV. He also prepared injuries statement of Khadim Hussain vide memo. Exh.P.Q and inquest report Exh.P.R. Injuries statement of Talib Hussain deceased was also prepared by him vide memo. Exh.P.S and inquest report Exh.P.T. Last worn- clothes of the deceased/accused were also received by him.
Ultimately challan againstthe accused/appellants was prepared and submitted for trial.
3. The prosecution in order to prove its case has produced as many as 12 witnesses including eye- witnesses. Investigating Officers, Doctor and other formal witnesses. After giving up Muhammad Rafique, Javaid Shah, Sardar Boota, Sultan Ahmad, Malik Taj, Bashir Ahmad. Maqbool Hussain, Muhammad Intizar, Riaz. Zaka Ullah, Sanaullah Bashir Ahmad, Nasir Mehmood, Muhamamd Suleman, Zahid Pervaiz, Zahur Hussain and Muhammad Azam Constable being unnecessary and tendering in evidence report of Forensic Science Laboratory Exh.P.W. learned PP closed the prosecution evidence. Thereafter statements of the accused/appellants were recorded under section 342. Cr.P.C. in which they pleaded not guilty and claimed to be tried.
4. Learned counsel for the appellants in support of this appeal submitted that section 7(1)(b) ATA, 1997 is not applicable in the instant case because none of the witnesses has stated before the Court that any of the appellant has fired at the police. Learned counsel for the appellants further submits that according to the prosecution case the accused persons were on the roof top of the house of Khadim Hussain (now deceased) and they have been tiring recklessly on the police party consisting of 80 Constables but none of the police official was injured. Learned counsel submits that three public pefsons namely Khadim, Talib and Riasat were murdered by the police in a false police encounter and their dead bodies were recovered from the house of one Shaukat. Learned counsel submits that five eye-witnesses were produced by the prosecution amongst them three were public witnesses and two were police officials. Adds that according to the statement of Mukhtar S.I. (P.W.) fire was shot from the roof top of the house of Khadim Hussain but not a single empty was recovered from the spot. Learned counsel has also referred to the statement of Muhammad Ali LHC according to which the present appellants were arrested from outside the house of Khadim who was murdered in the police encounter. Learned counsel submits that the defence plea of the appellants was that they had protested against the high handedness of the police and for this reason they were involved falsely in this case. Learned counsel for the appellants has also referred the statement of Muhammad Islam P.W.8 according to which the appellants were arrested from near the Bangallow of one Wazir Bhatti and not from the house a Khadim deceased when they were standing near the dead bodies of three deceased persons. He lastly submits that prosecution has failed to prove its case against the appellants and they are entitled to acquittal.
5. On the other hand learned State counsel submits that the present appellants were not the co- accused of the three persons namely Khadim, Talib and Riasat who were killed by the police. She submits that the present appellants had protested against, the police for murder of innocent persons in police encounter. Learned counsel concedes the submissions made by the learned counsel for the appellants and submits that the appellants have been falsely implicated in this case.
6. After having heard the learned counsel for the parties and going through the record, I am of the view that as the learned State counsel has conceded the submissions made by the learned counsel for the appellants. I have no other option but to accept this appeal. Conviction and sentence awarded to the appellants is hereby set aside. The appellants are behind the bars. They are ordered to be released forthwith if they are not required in any other case.