1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,38-T of 2000 filed by Muhammad Saeed, Muhammad Jehangir, Criminal Appeal No,339-T of 2000 filed by Muhammad Ayub, Khan Baig, Muhammad Mushtaq, Amjad Hussain, Mansabdar, Abdul Ghafoor, Muhammad Sabir and Muhammad Nazir appellants who were convicted and sentenced by the learned Judge Anti-Terrorism Court No,1, Rawalpindi constituted under the Anti-Terrorism Act, 1997 vide judgment, dated 9-8-2000 as under:-- ' Muhammad Saeed and Jehangir, appellants---Death under section 302, P.P.C., imprisonment for life under sections 364/149, P,P.C., and 10 years' R.I. With a fine of Rs,10,000 each under section 395, P.P.C., in default R.I., for one year and six months respectively.
2. ' Muhammad Ayub, Khan Baig, Mushtaq, Amjad Hussain Mansabdar, Abdul Ghafoor, and Muhammad Sabir, convict appellants---Imprisonment for life under sections 364/149, P.P.C., 7 years' R.I. With a fine of Rs,25,000 each, in default one years' R.I. Under section 201, P.P.C.
3. ' Muhammad Ayub, Khan Baig, Mushtaq and Amjad, appellants---10 years' RI. With a fine of Rs,10,000 each, in default six months' R.I. Under section 395, P.P.C.
4. ' Muhammad Nazir, appellant---Imprisonment for life under sections 302/109, P.P.C., seven years'
5. R.I. With a fine of Rs,25,000, in default one year R.I under section 201, P.P.C.
6. ' Criminal Appeal No,348-T of 2000 filed by the State against the acquittal of Muhammad Irfan, Muhammad Hafeez, Ghulam Farid, Ghulam Rasool, Zahoor Ahmad and Duraz Khan respondents and Criminal Appeal No,349-T of 2000 filed by the State for enhancement of sentence of the convicts, who were awarded life imprisonment shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at about 6-30/7-00 a.m. On 20-10-1992 at a, distance of 12 miles from Police Station Rawat, District Rawalpindi while the matter was reported to the police at 10-05 a.m. On 24-12-1992 by Mst. Zarina Bibi complainant and the formal F.I.R., Exh.P.O. Was recorded by Inspector/S.H.O.
3. Briefly stated the facts of the case are that on 20-10-1992 at about 6-30/7-00 a.m. Mst. Zarda Bibi, the wife of Murad Bakhsh was collecting grass while Murad Bakhsh was conducting levelling the land with wooden beam, when Muhammad Jehangir and Muhammad Saeed alongwith unknown persons armed with fire-arm came there and abducted both with intention to kill them by confining them illegally because there was previous litigation between them. It was also alleged that two unknown persons had also taken away the animals valuing Rs,21,000. The unknown persons were known to Muhammad Jehangir and Muhammad Saeed, who had taken the unknown assailants to the place of occurrence. The alleged conspirators were alleged to be Muhammad Hafeez and Muhammad Wan. The occurrence was witnessed by complainant Mst. Zarina Bibi, the real sister of Mst. Zarda Bibi wife of Murad Bakhsh, Muhammad Aqil and Walayat.
7. ' The case was mainly investigated by Sher Baz, S.-I. P.W.33 and Syed Bedar Zafar, S.P. C.I.A. On the pointation of Amjad Hussain animals were taken into possession through memo. Exh.P.B., by Sher Baz, S.-I. On 1-2-1995, the place where the deceased were buried was pointed out by Muhammad Nazir on 30-5-1995, Muhammad Mushtaq while in custody led to the recovery of rifle .7 MM which was taken into possession by P.W.33 through memo Exh.P.G., Muhammad Jehangir also in custody got recovered "Kassi" and "Belcha", which were taken into possession vide memo. Exh.P.K., by Sher Baz, S.-I. On 6-6-1995, similarly, Muhammad Sand got recovered "Kassi and Belcha" through Exh.P.L., Muhammad Jehangir accused got recovered tractor which was taken into possession vide memo.
8. Exh.P.M., another tractor recovered on the pointation of Muhammad Saeed was taken into possession vide memo. Exh.P.N., a .12 bore recovered at the instance of Muhammad Ayub was taken into possession vide memo, Exh.P.B., a tractor was also got recovered by Nazir Ahmad, through memo. Exh.P.C.C.C., Muhammad Saeed and Muhammad Jehangir were arrested on 6-6- 1995 by Sher Baz, S.-I., and he after completion the investigations challaned the accused to face the trial. Since Bedar Zafar Shah, S.P., died as such he was not examined as P.W.
9. ' At the trial, prosecution in order to prove its case produced 33 witnesses in all, including Dr. Zafar Manzoor, Medical Officer and Dr. Akhtar Hussain, Magistrate 1st Class, Rawalpindi, then the learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.P.K.K.K., Exh.P.L.L.L and closed the prosecution case, thereafter, the statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and involvement due to political rivalry. The accused also produced Jameel Akhtar, D.S.P. As D.W.1 and tendered in evidence documents Exh.D.A. To Exh.D.X., in support of their defence version. After conclusion of the trial except the present appellants, the remaining accused namely Muhammad Irfan, Muhammad Rafique, Ghulam Farid, Ghulam Rasool, Duraz Khan and Zahoor Ahmad were acquitted.
10. ' Learned counsel for the convict-appellants submits that the witnesses produced by the prosecution were related to the deceased and inimical towards the appellants, Khurshid P.W.5 was not mentioned in the F.I.R., there is no last seen evidence, the extra-judicial confession allegedly made by Hafeez and Saeed before Adalat Hussain P.W.7 being joint is not admissible in evidence, the same was also not put to the accused in their statements recorded under section 342, Cr.P.C.
11. Amjad Hussain, appellant according to the prosecution itself only pointed out the house where the two deceased were kept in illegal confinement alongwith their cattle, recoveries of Kassi and Belcha at the pointation of Saeed and Jehangir convicts were made on 6-6-1995, that is, 2-1/2 years after the occurrence, according to Dr. Zain-ul-Abadin P.W.18, who conducted post-mortem examination on the dead bodies of Mst. Zarda Bibi and Murad Bakhsh on 3-6-1995 and according to him, the duration between the time and post-mortem and the death was 2/3 years, injuries on the person of Mst. Zarda Bibi was of fire-arm while death of Murad Bakhsh had taken place due to violence, in the F.I.R. Only Saeed and Jehangir accused were named while others were unknown persons, no identification parade was held, statement of Muhammad Khurshid P.W.5 was recorded on 11-7-1993, that is, nine months after the occurrence, statement of Abdul Aziz P. W.6 was recorded two years and two months after the occurrence, in the village there was a police post but no report was lodged there, Karamat Ali Shah P.W.4 had only stated that he took two old persons, one male and one female in his bus, the place of burial of dead bodies was "Shamlat Deh" and did not belong to the convicts, that it was not in their exclusive possession, there is no evidence on record that the deceased were buried at one place and then shifted and buried to another place, there is no eye-witness of the murder of the deceased, there is also no evidence on record as to section 395, P.P.C. And that the learned trial Court in his judgment has disbelieved the major pieces of the evidence. He further submits that no conviction under sections 364 and 201, P.P.C. Could have been recorded by the learned trial Court. Learned counsel for the convicts in supports of his submissions has relied upon 1977 SCM R 20, PLD 1978 SC 21, PLJ 1974 Cr.0 (Lah.) 460, 1976 PCr.LJ 1462, 1987 M LD 1966 and 1991 PCr.LJ 1217.
12. ' On the other hand, learned counsel for the State submits that there is no delay in lodging the F.I.R.
13. Specific motive is attributed to Saeed etc., the dead bodies were recovered on the pointation of some of the convicts-appellants and that the prosecution has fully proved its case against the appellants and the learned trial Court was wrong in acquitting the respondents in the appeal filed by the State.
14. ' Learned counsel for the complainant has sent written request for adjournment on the ground that he is leaving for visit purposes from 15-8-2001 to 16-8-2001. There is no mention as to where and for what purpose, the learned counsel will be away. On the last date of hearing i,e, 18-7-2001, learned counsel for the complainant requested for short time on the ground of having been engaged a night ago and learned counsel for the appellant with a view to accommodate the learned counsel for the complainant submitted that the case may be adjourned for 30-7-2001. Accordingly, the case was adjourned with the direction to fix the same at No,1 in the cause list. On the adjourned date, the case could not reach. The conviction in the instant case was recorded by the learned Court constituted under the Anti-Terrorism Act, 1997 and is pending for the last one year. Even otherwise, the State has filed two appeals, one against acquittal of some respondents and the other for the enhancement of sentence of the convicts, who were awarded life imprisonment. We therefore, are constrained to observe that adjournments on such-like ground would amount to agony of the parties and cause delay in speedy justice, which is the need of the day. Even according to subsection (5) of section 25 of the Act, appeal has to be decided within seven working days.
15. ' The F.I.R. In the instant case was recorded only on the direction issued in Writ Petition No,781 of 1992.
16. This fact came to our notice during the hearing of these appeals and from the perusal of F.I.R. Itse The number of the petition was not known, hence the file of the case was summoned from the: office. We have perused the order, dated 27-10-1992 which reads as under:-- "Copy of the writ petition may be marked to the Superintendent of Police Headquarters, Rawalpindi for an inquiry of the averments in it. In case, the result of inquiry disclosed commission of cognizable offence/offences as stated in the writ petition, it shall be open to S.P. Headquarters to order registration of a criminal case. In case, the petitioner is not satisfied with the result of the inquiry by the S.P. Headquarters, it shall be open to lodge a complaint before the competent Court of jurisdiction. Writ petition is, accordingly, disposed of."
17. ' After this order, an inquiry was held and then the case was registered against the accused persons. This clarifies the delay in lodging the F.I.R.
18. ' The motive behind the occurrence was that Murad Bakhsh had sold out his some land to Saeed accused, who instead of occupying the sold out land wanted to take some other land known as "Lapara", besides this Murad Bakhsh had married Khala of Saeed and had divorced her, as no child was born and thereafter, Murad Bakhsh had married. Mst. Zarda Bibi real sister of the first informant Mst. Zarina Bibi, who was examined as P.W.16, it was also alleged that Saeed wanted to get the entire landed property of Murad Bakhsh and about eight years prior to the present occurrence, Sajid Mahmood son of Murad Bakhsh was taken away by Saeed etc., and was not traceable so far.
19. Saeed and Jehangir accused were specifically named in the F.I.R. Alongwith four unknown persons in a broad daylight occurrence in the presence of Mst. A Zarina P.W.16, Muhammad Aqil P.W.13 and Muhammad Khurshid P.W.S. He (Khurshid)' though was not mentioned in the F.I.R. But was examined as P.W.S. There is no earthly reason to disbelieve the testimony of these three eye- witnesses.
20. ' After hectic efforts a case was registered on the complaint of Mst. Zarina Bibi by the police. It was Nazir appellant who pointed the place on 30-5-1995 where the dead bodies were buried and it was on 2-6-1995 when in the presence of police and the learned Magistrate, the dead bodies were exhumed. We may also mention here, statement of Sher Baz, S.-I. P.W.33, who had investigated this case alongwith Syed Bedar Zafar, S.P. CIA, who had died before his statement could be recorded by the learned trial Court. S.-I. Sher Baz at page 4 of his examination-in-chief specifically stated that Muhammad Nazir accused made disclosure before S.P. CIA that the dead bodies of Murad Bakhsh and Mst. Zarda Bibi were buried in Mauza Banote Kas and from there the dead bodies were lifted out and taken on a tractor-trolley in the company of Muhammad Saeed, Muhammad Jehangir, Zahoor, Ghulam Farid and Ghulam Rasool to Mauza Badiala Kas and there the dead bodies were buried in the land owned by Muhammad Saeed accused.
21. ' This witness further stated that on 30-5-1995, Nazir led the police to the place where the dead bodies of Mst. Zarda Bibi and Murad Bakhsh buried in the land of Muhammad Saeed accused. The earlier part of the statement of this witness is not admissible but the latter part which starts from 30-5-1995 is admissible in evidence.
22. The fact that the land where the dead bodies were buried belong to Saeed accused etc., is proved from the statement of Muhammad Nawaz Patwari P.W.17, who had shown Point No,1 in the site plan Exh.P.R. From where the dead bodies were recovered and he had also stated in the site plan that this land is owned by Muhammad Saeed, Abdul Hafeez, Muhammad Jehangir and Muhammad Irfan in equal share. It were therefore, only they who could know the place where the dead bodies are buried. Not a single question was put to this witness in cross-examination.
23. ' Learned counsel for the convicts has stated before us that the extra-judicial confession made by Saeed and Hafeez accused before Adalat Hussain P.W.7 being joint is not admissible in evidence.
24. We have minutely gone through the statement of Adalat Hussain, P.W., there is no mention of any joint or otherwise extra-judicial confession of both the convicts namely Saeed and Hafeez but in fact the statement of Adalat Hussain reads as under:-- "About 4/5 years after the present occurrence Saeed his brother Hafiz came to my Dhok Badal at 5-00 p.m. My brother-in-law Razzaq was already present there. I told both the accused to return Murad Bakhsh and Mst. Zarda Bibi and not to commit highhandedness. On this both the accused replied that if I could arrange the land known as Pahal Wali' situated in the area of Dhok Badal in their favour, they would release both the abductees. Thereafter, 1-1/2 months Saeed accused again met me and I repeated the aforesaid demand who replied that in addition to the land they would obtain rupees two lacs for the release of both the abductees. Murad Bukhsh and Zarda Bibi were Khaloo and Khala and have been murdered. The accused belong to my brotherhood."
25. ' The submission of the learned counsel that the learned trial Court, did not put the extra-judicial confession to Saeed accused in his statement under section 342, Cr.P.C. Is without force because the above evidence was put to both Saeed and Hafeez in the shape of Question No,6 in their statements recorded under section 342, Cr.P.C.
26. Recoveries were also effected on the pointation of Jehangir and Saeed in the shape of "Beicha, Kassi and Tractor".
27. ' Another submission made by learned counsel for the convicts was that Karamat Ali Shah P.W.4 has stated before the learned trial Court that on 20-10-1992 at about 10-15 a.m., he was going towards Rawalpindi while driving Bus No,7072/LHC and when reached at Bus Stop Jhatta Hatial, several persons were standing there and they asked him to take an old lady and an aged man to the police station, upon which I made them to sit in the bus and dropped them near Police Station Rawat. There is nothing in the statement of this witness that the old lady the old man were Mst.
28. Zarda Bibi and Murad Bakhsh, who were murdered. So the submission of the prosecution that the occurrence had not taken place at 6-30/7-00 a.m. Does not arise but according to P.W.4, he did not state in his statement that it were the deceased persons who boarded his bus.
29. ' We may also refer to the application Exh.PU, made by Murad Bakhsh, Mst. Zarda and Malak to the D.I.-G. And S.S.P. Rawalpindi on 28-7-1992. A bare perusal of this document shows that how much Saeed accused was influential and what had been happening with the deceased prior to the occurrence. This application is at page 427 of the judicial file.
30. From what has been stated above, we are of the considered opinion that there is sufficient evidence on record in the form of motive, recoveries of the weapons of offence, tractors and the dead bodies to connect Saeed, Jehangir and Nazir accused in this case. So far as, involvement of Muhammad Ayub, Khan Baig, Mushtaq, Amjad, Hussain, Mansabdar, Abdul Ghafoor and Sabir Hussain is concerned, prosecution has not been able to prove its case against them to its hilt rather the defence has been able to create dents in the prosecution story to their extent. It is settled law that the prosecution has to build its own case and not to claim benefit or any weakness of the accused. So, the G conviction and sentence recorded against Saeed, Jehangir and Nazir appellants under sections 302(b) and 201, P.P.C. Is maintained. Conviction under sections 364, 149 and 395, P.P.C. Is set aside. The benefit of section 382-B, Cr.P.C. Shall remain available to Nazir convict. Muhammad Ayub, Khan Baig, Mushtaq Hussain, Amjad, Mansabdar, Abdul Ghafoor and Sabir Hussain appellants are acquitted of all the charges against them. They shall be released forthwith, if not required to be detained in any other case.
31. Criminal Appeal No,338-T of 2000 filed by Saeed and Jehangir appellant is dismissed. Criminal Appeal No,339-T of 2000 is dismissed to the extent of Muhammad Nazir while to the extent of remaining seven accused, appellants the same is accepted. Criminal Appeals Nos.348 and 349-T of 2000 filed by the State are dismissed.