' SHEIKH ABDUR RAZZAQ, J.--- Briefly stated the facts of prosecution case as unfolded in F.I.R. Exh.P.T.
Lodged at the instance of Muhammad Fazil (P.W.17) are that he is resident of Chak No,503 and is Mureed' of Darbar of Syed Saeed Chiragh. On 23-1-1999 at 7-10 am, he alongwith his grandson,Banaras was going to pay homage (Salam) to Syed Sabir Sultan and reached cattle shed situated at Sundhianwali. At that time Syed Sabir Sultan alongwith Muhammad Sarwar son of Ameer, Ali Sher son of Ahmad, Pehalwan son of Muhammad Inayat and Muhammad Nawaz son of Lal were already sitting on the cots. At about 8-00 am suddenly two persons appeared on a Honda Motorcycle from the side of cattle shed whose features have been described in the F.I.R. Both the said persons alighted from motorcycle, one of them kept on standing with the motorcycle in starting condition whereas the other came forward and started firing with his automatic weapon.
He (complainant) and Muhammad Nawaz were lucky to escape from their firing whereas Sabir Sultan, All Sher and Muhammad Sarwar succumbed to the injuries as a result of his firing.
Thereafter, the assailants decamped from there making aerial firing. On their hue and cry Muhammad Yar son of Ghulam Muhammad and Jewan son of Mohawat were attracted and saw the accused fleeing from the spot. The complainant and Pehalwan then removed Banaras and Khan injured to Civil Hospital, Shorkot where Banaras also breathed his lost. However, Khan son of Bahawal was admitted for treatment. He further stated that as Syed Sabir Sultan belongs to Fiqah Jaffaria so unknown accused had committed the murder of Syed Sabir Sultan, Banaras, Muhammad Sarwar and Ali Sher and caused injuries to Khan.
' Tallat Ali Khan, Inspector S.H.O. (P.W.26) was posted at Police Station Shorkot in January, 1999. On 23-1-1999 while he was present at Tehsil Chowk Shorkot the complainant Muhammad Fazil produced before him a written application Exh.P.I. Upon which he endorsed his report Exh.,P.T./1. He sent the said application through Muhammad Akram constable for formal registration of F.I.R.
Which is Exh.P.T./2. He then went to spot, inspected the same and found dead bodies of Syed Sabir Sultan, Ali Sher and Ghulam Sarwar over there. He prepared injury statement Exh.P.B., inquest report Exh.P.C. Pertaining to Syed Sabir Sultan deceased and entrusted his dead body to Zafar Abbas constable for carrying to the mortuary. He also prepared injury statement Exh.P.K. And inquest report Exh.P.L. In respect of Ghulam Sarwar deceased. He also prepared injury statement Exh.P.M.
And inquest report Exh.P.O. Regarding Ali Sher deceased. He thus dispatched the dead bodies for their post-mortem examination and made for hospital. He then prepared injury statement of Banaras Exh.P.E. And inquest report Exh.P.F. He recorded the statement of witnesses and inspected the spot. He secured blood-stained earth from the place of murder of Ali Sher deceased vide memo. Exh.P.BB. And of Ghulam Sarwar deceased Exh.P.Z. And of Banaras deceased Exh.P.CC. And of Syed Sabir Sultan Exh.P.AA. He also secured seven empties from the place of occurrence vide memo. Exh.P.DD. He also prepared a rough site plan of the place of occurrence Exh.P.HH. He secured last worn clothes of the deceased produced by respective constables vide memos. Exhs.P.R., P.S., P.X. And P.Y. On the next day he visited the hospital and moved an application Exh.P.L. To inquire if Khan injured was fit to make statement and consequently recorded his statement. On 24-1-1999 he got the place of occurrence inspected from Nazar Hussain Patwari who handed over site plans Exhs.P.Q. And P.Q./1. Thereafter, he was transferred on 21-2-1998 and investigation was entrusted to Muhammad Aslam Niazi, Inspector S.H.O. (P.W.27) who received the file on 28-2-1999. On 1-3-1999 he recorded the statement of Zulfiqar (P.W.10). On 4-3-1999 he conducted the raid for the arrest of Munir Akmal accused. On 19-3-1999 he joined Muhammad Fazil, Pehalwan, Muhammad Yar, Muhammad Nawaz and Jewan P.Ws. On 24-3-1999 he recorded the statements of Liaqat Ali and Sufi Gulzar Hussain. On 25-3-1999 he recorded the statement of Rab Nawaz P.W. And conducted raid at the residence of Muhammad Sarwar, Shah Muhammad and Abdul Razzaq for effecting their arrest. On 5-4-1999 he arrested accused Haji Muhammad Tariq, Muhammad Iqbal, Muhammad Ramzan, Manzoor Hussain alias Arsenal Moavia, Abdur Razzaq alias Jaka, Shah Muhammad and Muhammad Sarwar. On 6-4-1999 he recorded the statement of witnesses. On 8-4-1999 he arranged the raiding party and arrested Mulazam Hussain accused and secured motorcycle vide Memo. Exh.P.U. On the same day, Mulazam Hussain accused also led to the recovery of Kalashinkov P.15, Plastic bag P.16, two Magazines P.17/1-2, 80 rounds P.18/1-80. Kalashnikov and two magazines were made into a sealed parcel vide memo. Exh.P.FF. After completing investigation, he challaned all the accused except Muhammad Akram Ganji alias Ashraf who was proceeded under section 512, Cr.P.C. He handed over all the relevant parcels to Moharrir Head Constable for onward transmission to the office of Forensic Science Laboratory.
3. A charge under sections 120-B/109/302/34, P.P.C. Read with section 7 of Anti-Terrorism Act was framed against accused Mulazam Hussain alias Dr. Kashif alias Abdal alias Nadeem, Ghulam Qadir, Haji Muhammad Tariq, Muhammad Iqbal alias Asadullah, Muhammad Ramzan, Manzoor Hussain alias ArsIan Moavia, Abdur Razzaq alias Jaka, Shah Muhammad, Muhammad Sarwar, Hakim Munir Akmal, Maulvi Muhammad Shafi and Muhammad Akram Ganji alias Sharif (P.O.) to which all of them pleaded not guilty and claimed trial.
' In order to bring home guilt to the accused prosecution examined P.W.1 Dr. Ghulam Rasool who on 23-1-1999 conducted the post-mortem examination of Syed Sabir Sultan and Banaras. P.W.2 Dr. Mazhar Abbas conducted the medical examination of Khan and also conducted the post-mortem of examination of Ghulam Sarwar. P. W.3 Haji Bahadar Sultan, P.W.4 Muhammad Iqbal, P.W.5 Falak Sher, P.W.6 Noor, P.W.7 Nazar Hussain Patwari, P.W.8 Zafar Iqbal Constable, P.W.9 Wali Muhammad Constable, P.W.10 Mushtaq Ahmed H.C, P.W.11 Shafqat Abbas H.C, P.W.12 Muhammad Manzoor Constable, P.W.13 Riaz Hussain A.S.-I., P.W.14 Muhammad Boota H.C., P.W,15 Muhammad Shabir Constable, P.W.16 Muhammad Akram Constable, P.W.17 Muhammad Fazal, P.W.18 Jeewan, P.W.19 Khan Muhammad, P.W.20 Zulfiqar, P.W.21 Rub Nawaz, P.W.22 Sufi Gulzar Hussain, P.W.23 Liaqat Ali, P.W.24 Haji Haq Nawaz, P.W.25 Malik Khadam Jilani Rresident Magistrate, P.W.26 Talat Ali Khan, Inspector S.H.O. And P.W.27 Muhammad Aslam Niazi, Inspector S.H.O. The learned special public prosecutor produced documents and after giving up witnesses closed prosecution evidence vide his statement dated, 10-6-1999.
5. When examined under section 342, Cr.P.C., the accused Mulazaui Hussain denied the prosecution version and in reply to question as to why this case has been registered against him replied as follows:-- "The case is false one. My face is round shaped and my colour is white. The features given in the F.I.R. Do not resemble my features. The news in respect of my arrest has been published in the National Newspaper, Daily Nawa-e-Waqt and daily Jang etc. Dated, 18-3-1999 and 28-3-1999. I have been involved in case F.I.R. No,236 of 1998 under sections 302/109/134, P.P.C. Of Police Station Kot Addu, District Muzafargarh. During the investigation, though the accused named in the said F.I.R. Have been acquitted by the Anti-Terrorist Court, Dera Ghazi Khan. Since I have been declared as P.O. In the above said case, my mother Mst. Gainure Mai made an application in the said Court on 27-3-1999 for summoning myself in the Anti-Terrorist Court, Dera Ghazi Khan and then I was summoned by the aforesaid Honourable Court for 3-4-1999, 8-4-1999, 16-4-1999, 6-5-1999, 19-5- 1999 and 31-5-1999, The aforesaid application was filed by the Honourable Court. I submit a certified copy of the application made by my mother Exh.D.H. And certified copy of interim orders from 27-3-1999 to 31-5-1999 as Exh.D.I. I have been roped into this case by the police just to show their progress and to get pecuniary advantages/promotions from their high-ups. I do not belong to Anjuman-e-Sipah-eSihaba."
' The accused Muhammad Iqbal alias AsAd Ullah, Muhammad Tariq, Hakeem Munir Akmal, Muhammad Ramzan, Muhammad Sarwar, Abdul Razzaq alias Jaka, Manzoor Hussain alias Arslan Moavia, Maulvi Muhammad Shafi, Muhammad Iqbal alias Asad Ullah, and Ghulam Qadir denied the prosecution version and stated that they have been implicated in this case falsely.
6. After going through the evidence produced by the prosecution the learned trial Court convicted Mulazim Hussain alias Dr. Kashif alias Dr. Abdali, Ghulam Qadir, Haji Muhammad Tariq, Muhammad Iqbal alias Asad Ullah, Muhammad Ramzan, Manzoor Hussain alias ArsIan Moavia, Abdul Razzaq alias Jaka, Shah Muhammad, Muhammad Sarwar, Hakeem Munir Akmal and Maulvi Muhammad Shafi under section 302 read with section 120-B, P.P.C. And sentenced them to imprisonment for life.
He further convicted all of them under section 324, P.P.C. Read with section 120-B, P.P.C. And sentenced each of them to undergo R.I. For ten years. He further convicted Maulvi Muhammad Shafi, Hakeem Munir Akmal and Muhammad Tariq under section 302, P.P.C. Read with section 109, P.P.C. And sentenced them to imprisonment for life. He further convicted Mulazim Hussain under section 302, P.P.C. And sentenced him to death penalty on four counts for murdering Syed Sabir Sultan, Ali Sher, Ghulam Sarwar and Banaras and to pay Rs,1,00,000 on each count (total four lac) as compensation to the legal heirs of the deceased. He further convicted Mulazim Hussain under section 324, P.P.C. And sentenced him to R.I. For ten years for launching murderous assault upon Khan injured P.W. And to pay fine of Rs,1,00,000 or in default thereof to undergo R.I. For two years. He ordered that if the fine is realized the whole shall be given to Khan injured. He also convicted Mulazim Hussain under section 7 of Anti-Terrorism Act, 1997 and awarded him death penalty and to pay fine of Rs,1,00,000. He further convicted Mulazim Hussain under section 7 of Anti-Terrorism Act for causing injury to Khan Muhammad P.W. And sentenced him to R.I for seven years and fine of Rs,1,00,000 or in default thereof to undergo R.I for two years. He further convicted accused Ghulam Qadir, Haji Muhammad Tariq, Muhammad Iqbal alias Asad Ullah, Muhammad Ramzan, Manzoor Hussain alias Arslan -Moavia, Abdul Razzaq alias Jaka, Shah Muhammad, Muhammad Sarwar, Hakeem Munir Akmal and Maulvi Muhammad Shafi under section 7 of Anti-Terrorism Act and sentenced each of them to imprisonment for life and fine of Rs,1,00,000 or in default thereof to undergo R.I. For seven years each. He further directed that all the sentences awarded to the accused shall run concurrently and they will also be extended benefit of section 382-B, Cr . P.0 .
7. The accused/Mulazim Hussain, Ghulam Qadir, Haji Muhammad Tariq, Muhammad Iqbal alias Asadullah, Muhammad Ramzan, Manzoor Hussain alias Arsalan, Hakeem Nunir Akmal, Maulvi Muhammad Shafi and Abdul Razzaq alias Jhaka have felt aggrieved and filed the instant appeal.
The accused Shah Muhammad and Muhammad Sarwar have filed Criminal Appeal No,601 of 1999.
The complainant Muhammad Fazil also filed Criminal Revision No,354 of 1999 for the enhancement of sentence awarded to all the accused/appellant except Mulazim Hussain. A Murder Reference No,225-T of 1999 has also been forwarded by the learned trail Court as contemplated under section 374, Cr.P.C.
8. As criminal appeals, murder reference and criminal revision referred above arise out of the same judgment so all these are being disposed of by this single judgment.
9. Arguments have been heard and record perused.
10. It is submitted,by Mian Muzaffar Ahmad, Advocate representing his appellants that in the instant case no recovery whatsoever has been effected from any of the accused. He further contended that the prosecution evidence in the instant case rests upon the statements of Zulfiqar P.W.20, Rab Nawaz P.W.21, Sufi Gulzar Hussain P.W.22, Liaqat Ali P.W.23, Tallat Ali Khan S.-I./S.H.O. P.W.26, Muhammad Aslam Niazi S.-I./Inspector P.W.27. He further contended that evidence of aforementioned witnesses is not confidence-inspiring, that the investigation has not been conducted fairly, that there is no explanation as to why P.Ws. Nos.20 to 23 remained silent for about one month eight days to two months regarding conspiracy as well as extra-judicial confession of the accused, that the P.Ws.20 to 23 were produced by Nadir Sultan, brother of Syed Sabir Sultan deceased, that the P.Ws. Nos.20 to 23 were produced and never appeared of their own accord before Muhammad Aslam Niazi, Inspector/S.11.0. He further contended that P.W.20 Zulfiqar is resident of Paraywala, a place situated at a distance of 53 miles from Siddiqabad where Dowakhana of Munir Akmal was situated and there is no reason of his going to his Dowakhana for getting medicines and of hearing the conspiracy being hatched by the accused. He thus submitted that the prosecution has failed to bring on record any evidence connecting the accused/ appellant with the commission of this offence.
11. So far as Haji Muhammad Tariq accused is concerned, his learned counsel submitted that incriminating evidence brought on record has not been put to him while recording his statement under section 342, Cr.P.C. Although it was the duty of the prosecution to put said evidence while recording statement under section 342, Cr.P.C. And placed reliance upon 1999 SCM R 697. He thus submitted that as the incriminating evidence has not been referred to the accused/appellant so prosecution has failed to prove its case against him.
12. So far as accused Shah Muhammad and Muhammad Sarwar is concerned, their learned counsel Ch. Muhammad Hussain Chhachhar and Ch. Muhammad Ashraf Wahla, Advocates submitted that no motive whatsoever has been mentioned in the F.I.R. Regarding the involvement of the present accused/appellants, that the accused/ appellants had no concern whatsoever with Muhammad Akram Ganji and Mulazim Hussain who were said to be the persons actually involved in the commission of this offence.
13. Conversely the impugned judgment has been supported by the learned counsel for the complainant assisted by the learned counsel for the State.
14. Now let us analyze and see if the prosecution has been able to bring home guilt to the accused/appellants. As discussed above the case against the appellants rests upon the statements of P.W.20 Zulfiqar, P.W.21 Rab Nawaz, P.W.22 Sufi Gulzar Hussain, P.W.23 Liaqat Ali. So far as the statement of Zulfiqar P.W.20 concerned, he deposed that on 22-1-1999 he had gone to the shop of Hakeem Munir Akmal for fetching medicines when Hakeem Munir Akmal has asked two persons who has come on motorcycle not to return empty-handed and after committing the murder of 'Shia Kafir' take refuge in the house of Abdul Razaq alias Jhaka accused/appellant. The said witness has identified one of those persons to be Mulazim Hussain who has been awarded death sentence and is stated to have been murdered in police encounter. It is fact that he did not bring this fact into the notice of the police even after coming to know the murder of Syed Sabir Sultan. On the other hand he informed Nadir Sultan (brother of Sabir Sultan deceased) after one month and eight days, and there is no explanation of this delay and long silence on his part. He also admits that he is resident of a village 53 Kms. Away from the house of Hakeem Munir Akmal and had never visited the Hakeem in the past for treatment. This witness admits that he has been meeting the Hakeem in open plot and on this score he stands falsified by other P.W. So far as the statement of Rab Nawaz P.W.21 is concerned, he also states about conspiracy of the accused/appellants for committing the murder of the deceased as well as extra-judicial confession of accused Abdul Razzaq alias Jhaka. This witness also came to know about the conspiracy on 21-3-1999 through Abdul Razzaq alias Jhaka and Shah Muhammad who informed them that such conspiracy had been hatched on 21-1-1999 whereby Maulvi Muhammad Shafi accused had deputed Mulazim Hussain and Muhammad Akram Ganji to commit that murder. He (P.W.21) admits that he was informed by accused Abdul Razzaq on 21-3-1999 that the said accused had been visiting his `Dera' earlier to 21-3-1999. He further admits that none visited his `Dera' during the presence of said accused and he also did not try to produce the said accused before the police. Similarly Sufi Gulzar Hussain P.W.22 has deposed that he had gone to Jamia Siddiquia alongwith Liaqat Ali P.W.23 where he had found that the accused/ appellant were conspiring for the murder of Syed Sabir Sulan who was the Shia leader and the said task was assigned to Mulazim Hussain and Muhammad Akram. Ganji. This is the evidence which has come on record against the accused/appellants.
15. So far as the evidence of Tallat Ali Khan Inspector/S.H.O. And Muhammad Aslam Niazi, Inspector P.W.27 is concerned, Admittedly Tallat Ali Khan, Inspector S.H.O. P.W.26 failed to collect any evidence of conspiracy as well as extra-judicial confession till 28-2-1999. It is on 1-3-1999 when the investigation was entrusted to Muhammad Aslam Niazi P.W.27 that he succeeded in securing evidence regarding conspiracy as well as extra-judicial confession. It is very strange that the witnesses have been joining the investigation long long ago but neither the factum of conspiracy nor of extra-judicial confession could be brought into notice of Tallat Ali Khan P.W.26 and the said witnesses disclosed all these so-called facts as soon as investigation was given to Muhammad Aslam Niazi P.W.27.
16. For what has been stated above, it is proved that the prosecution has failed to bring on record any direct evidence connecting the accused/appellants with the commission of offence and has tried to connect the accused/appellants by procuring/securing evidence of conspiracy as well as of extra-judicial confession. The evidence of P.Ws. Referred above loses its evidentiary value when it is seen that they had remained mum from one month eight days to two months in bringing the factum of conspiracy into the notice of first Investigating Officer. It is also a fact that none of the said P.Ws. Appeared of his own accord before the Investigating Officer but all of them were produced by Nadir Sultan, brother of Sabir Sudan deceased. This fact further gives fatal blow to the prosecution stand and it appears that the same has been planted against the accused/appellants. There is no dearth of authorities on the point that if the statements are recorded after a delay of even four days the same have not been relied upon by the superior Courts. It is also a fact that evidence pertaining to extra-judicial confession is of weakest type of evidence and cannot be relied upon without any independent corroboration which is lacking in this case. It is also a fact that main role has been attributed to only two accused namely Mulazim Hussain who has been convicted but has been killed in a police encounter. The other accused connecting with the commission of this offence is Muhammad Akram Ganji who is still at large.
17. For the reasons given above, we are convinced that the prosecution has failed to bring home guilt to the accused/appellants beyond reasonable doubt. Consequently appeal is accepted and the appellants are hereby acquitted. They are ordered to be released forthwith if not required in any other case. Appeal to the extent of Mulazim Hussain is abated, due to his death in a police encounter. The Murder Reference is answered in the negative due to abatements of appeal.