This judgment will dispose of Criminal Appeal No,96-J of 2002 tiled through jail and Criminal Revision No,105 of 2(102 directed against the judgment dated 21-1-2002 passed by Judge Anti- Terrorism Court No,III. Lahore, whereby he convicted the appellants under section 302-B/34, P.P.C. and sentenced them to undergo life imprisonment each with fine of Rs,5,00,000 (Rupees five lacs) each payable to the legal heirs of the deceased as compensation required under section 544-A, Cr.P.C. with benefit of section 382-B. Cr.P.C. while remaining two accused namely Maqsood Ahmad and Abdul Majeed were acquitted from the charge. .
2. The facts in brief as narrated by the complainant Sh. Muhammad Shabbir are that on 30-11-1994 at about 1 a.m. (midnight) he alongwith Riaz Ahmad and Muhammad Razzaq was present at the house of his maternal uncle Muhammad Sharif at his house, that suddenly they came out in the street having heard the voice of firing outside and in the light of the electricity he saw that his brother Muhammad Younis alias Bhola who was going in his car to his house was being tired at with kalashnikov by two persons (unknown). The complainant party raised hue and cry on which the accused ran away in a car wherein few unknown individuals were already sitting. The deceased died at the spot. The motive behind the present occurrence was stated that the brother- in-law of the complainant namely Jaggo Butt and Rafique alias Feeqa Pathan had old enmity.
Jaggo Butt was confined in Jail while Feeqa Pathan prior to this incident had issued threats to him not to pursue the case of Jaggo Butt, otherwise his consequences will not be good. Hence the present case.
3. After receiving the information about the occurrence the local police completed all the necessary proceedings. Thereafter Muhammad Ilyas, S.I alongwith his subordinates proceeded to the spot. He prepared the inquest report Exh.P.S and inquiry statement Exh.P.T. He secured blood- stained articles from the car vide memo. Exh.P.F. vehicle belonging to deceased Exh.P.G. and empty cartridges P.22/1-23 vide memo. Exh.P.E. All the accused were arrested by a raiding party consisting of S.S.P, Malik Ijaz Hussain, Sikandar Hayat, D.S.P., S.H,0 Police Station City Jhelum and other police officials. The arrest of the accused was made by the D.S.P, above said who also got recovered crime weapons alongwith bullets respectively from all the accused during their personal search. All necessary steps were made by the police and ultimately the appellants alongwith their acquitted co-accused were challaned and were sent to Judicial lock-up.
4. The prosecution in order to prove its case has produced as many as 24 P.Ws. including Investigating Officers. Doctor. eyewitnesses and other relevant persons. After tendering in evidence report of. Chemical Examiner, Exh.P.Y, report of the Fire-arm Expert Exh.P.Z, learned P.P. closed the prosecution evidence. One C.W. was also examined. Thereafter. statements of the accused were recorded under section 342, Cr.P.. in which they pleaded not guilty and claimed to be tried.
5. Mr. Masood Sadiq Mirza, Advocate for the appellants submits that occurrence had taken place in the midnight at about 1-00 a.m.. that nobody was named in the F.I.R., that according to the complainant Sh. Muhammad Shabbir, he was present in the house of his maternal uncle alongwith Riaz Ahmad and Muhammad Razzaq P.Ws. Though. they had appeared before the learned trial Court but they did not support the prosecution case. Learned counsel for ' the appellants ' further submits' that identification parade had not held in accordance with law and also according to the High Court Rules and Orders. Adds that there was previous background of enmity between Muhammad Muslim appellant and the complainant, that the complainant had made lot of improvements in his statement before the trial Court in order to get conviction of the present appellants, that on the same evidence Maqsood Ahmad and Abdul Majeed accused have been acquitted by the learned trial Court, that the recoveries have been planted on the appellants that the report of the Firearm Expert Exh.P.Z has nothing to do with the present case, that no case is made out against the appellants and they are entitled to acquittal.
6. On the other hand learned counsel for the State submits that though appellants were not named in the F.I.R. but they were identified,during the identification parade held in District Jail Jhelum on 12-2-1995 under the supervision of Mr. Nadeem Sarwar, Magistrate Firs Class. He submits that recoveries were also effected from the appellants and that ocular account is fully corroborated by medical evidence. He submits that prosecution has proved its case against the appellants beyond any shadow of doubt. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. The occurrence in this case had taken place between the night of 29/30-11-1994 at about 1 a.m. It was month of November and was cold season.
No description of any of the accused person was given in the motive given in the F.I.R. was that the deceased used to pursue the murder case of his brother-in-law i,e, of the complainant while one Feeqa Pathan used to threat the deceased that he should not pursue the said case otherwise he would have to face with dire consequences. Before the trial Court he changed the version and submitted that in fact this murder had taken place due to the fact that appellants and their co- accused had committed a dacoity and during that dacoity the deceased was killed by the two appellants. He was duly confronted with his statement I recorded under, section 154. Cr.P.C. i,e, F.LR.
If one goes through the said statement of the complainant, the first two pages are full with confrontation. He had totally changed, his version. For example he submitted before the learned trial Court that the wrist watch and the purse of the deceased was also removed in his presence.
He was duly confronted with the said statement i,e, the first information report. He had not stated before the Magistrate that for what purpose he had come to the jail and he also did not B describe the role played by the appellants before the said Magistrate namely Nadeem Sarwar P. W.17.
8. The most important factor in the instant case is that two other eye-witnesses namely Riaz Ahmad and Muhammad Razzaq who were mentioned by the complainant in the F.1.R did not support the prosecution c case before the learned trial Court being examined as P.W.5 and P.W.6 respectively and they were declared hostile.. On the same evidence Maqsood Ahmad and Abdul Majeed were acquitted by the learned trial Court. No wrist watch or purse was recovered from the present appellants. Recoveries of kalashnikovs were effected by the S.H.O. Police Station Sarai Alamgir namely Muhammad Anwar. According to him he alongwith other police officials raided the house situated in Sarai Alamgir. District Jhelum from where he arrested the present appellants on 22-12-1994. Identification parade in this case was held on 12-2-1995 while occurrence had taken place on 30-11-1994 in the dark hours of night. It was not humanly possibly to identify the accused persons after 2 '/.2 months. For the just decision of the case. I would like to reproduce question No,7 and its answer recorded by the learned trial Court in the statement of Muslim Butt recorded under section 342, Cr.P.C.:-- "Q. No,7. Why this case against you?
Ans. This case is against me as there is old enmity between me and the family of the complainant as in 1992 the sister-in-law of the complainant had run away with me with her own consent whom I had returned through a Punchayat in which the complainant was also remained present. My co- accused Maqsood Ahmad, Abdul Majeed and Nazam had favoured me in the Punchayat being my friends and the complainant had seen me very well and also my co-accused during that Punchayat and was also well-acquainted with our names and later on the brother-in-law of the complainant namely Asim Butt had made a murderous assault alongwith his friends on me and I got Chhuri injuries regarding which I had lodged F.I.R. No,400 of .1992 dated 14-6-1992 for an offence under sections 324/148/149, P.P.C. at Police Station Mughalpura, Lahore, in which I .had also mentioned the motive that the sister of the said Asim Butt had gone with me with her own consent who was got returned to her father by the respectables and on that account Asim Butt had attacked on me alongwith his friends. I produce copy of F.I.R. Exh.P.D. Had I and' my co-accused had committed this incident, the complainant while lodging the F.I.R. could have given our names in all circumstances. As the complainant had met us in the aforesaid case, many times. It is also necessary to mention this fact that the Investigating Officer of this case namely Abdul. Rashid, Inspector is also resident of the same area in which I and the complainant do reside. The deceased Muhammad Younas and the complainant are the touts of the Investigating Officer. Inspector .
Abdul Rashid and they have formulated jointly a Qabza Group and Inspector Abdul Rashid is the head of that group and they three jointly pick up the innocent people and take them to the police station and release them after receiving amount from them. Prior to this case, we were also 'picked up many times and were taken to police station and were released after making us victim of torture and getting money from us. Behind all this process was the grievance of the said incident to the deceased as well as the complainant which had been mentioned above. The relationship between Inspector Abdul Rashid. Investigating Officer and the complainant of this case is also proved from this fact that the Investigating Officer Abdul Rashid had arrested a lady Mst. Ishrat in F.I.R. No,163 of 2000 under section' 392, P.P.C. Police Station Mughalpur, Lahore who is the wife of Riaz Ahmad P.W., only for the reason that the said Riaz Ahmad had refused to support the stand of the complainant while appearing in this Court. It is also worth-mentioning that the said case was also got registered by the present complainant of this case and it is being Investigated by the same Investigating Officer Abdul Rashid, Inspector, hence they both joined together to give punishment to P.W. Riaz Ahmad and wrongly involved his wife in the case. I will produce F.1.R. No,163 of 2000 and order of the bail of Mst. Ishrat wife of Riaz Ahmad before this Court. Another example of complainant of this case and the Investigating Officer, being Qabza Group is that some time back Inspector Abdul Rashid had taken away the articles of the house of a lady Mst. Shahida Parveen and put lock to her house as her husband had to pay some amount to Sh. Shabbir the complainant of this case and had issued threats to Shahida Parveen that if she will not pay back the amount to the complainant, he will forcibly get the house registered in the name of the complainant Mst.
Shahida Parveen had made an application to the S.P., Lahore according to all the facts and later on filed W.P.No,16608 of 2001 in which she also mentioned all the facts the copy of which I will produce and that all the aforesaid facts proved that the complainant has wrongly involved me and my co- accused on the basis of personal enmity and the Investigating Officer Abdul Rashid is in league with the complainant party. The few examples of which I have given and that those are the only reasons on account of which I have been arrested in the present case."
A perusal of the above-said question and answer would show that there was enmity between Muslim Butt and the present complainant party. Muslim Butt appellant -had also produced F.I.R. No, 163 of 2000 Exh.D.0 and other documents i,e, Exhs.D.T, D.E. and D.F. which proves the enmity between the complainant party and the appellants. Although, suggestions were put to the complainant, Sh.
Muhammad Shabbir by the learned defence counsel during the trial though the same were refuted but it shows that the complainant was not making the whole truth before the learned trial Court. As far as report of Fire-arm Expert Exh.P.Z is concerned, that relates to F.I.R. No, 431 of Police Station Sarai Alamgir, Digtrict Jhelum while instant F.I.R. No,774 is dated 30-11-1994 and it relates to Police Station Mughalpura, Lahore'. Even if that report is positive but it has nothing to do with the present case. This is a case in which life imprisonment has been awarded and a criminal revision for enhancement of sentence was also' filed by the learned counsel for the complainant who is not present though his name is sufficiently mentioned in the cause list and I have been waiting for him as this revision petition was ordered to be heard alongwith the present appeal. The Court has to see whether the conviction and sentence can be maintained on such weak type of evidence or not.
The answer is -No'. There is no independent corroboration to the statement of interested witnesses namely complainant. Statement of the complainant as mentioned above is full of improvements and reliance cannot be placed sufficiently on the said statement in order to maintain the conviction. In the instant case there are many dents in the prosecution side. This case according to my considered opinion is full of doubts and possibility of false implication due to previous enmity cannot be ruled out in this case. In this view of the matter this appeal is accepted and the conviction and sentence awarded to the appellants is set aside. The appellants are behind the bars. They shall be released forthwith if they are not required in any other case.