MUHAMMAD FARRUKH MAHMUD, J.---Through this appeal the Advocate-General Punjab/Public Prosecutor Punjab has challenged the judgment dated 30-6-1999 passed by Ch. Asad Raza, Judge, Special Court No,II (Anti-Terrorism), Mu'tan, in case F.I.R No,165/1997 registered at Police Station Qadirpur Rawan, District Multan, on 26-9-1997, whereby Maqsood Ahmad alias Maqsoodi and Haq Nawaz alias Asad, respondents Nos.1 and 2 respectively, were acquitted of the charges under sections 302/149, P.P.C. On two counts, 337-F(vi)/149, P.P.C, 337F(ii)/149, P.P.C, 337-F(iii)/149, P.P.C, 324/149, P.P.C. And 395, P.P.C.
2. Bashir Ahmad P.W.13 set the law in motion by reporting the incident at police station on 26-9- 1997 at about 2-50 a.m. (night) and on his report Mazhar Hayat, S.-I. P.W.9 registered F.I.R No,165 of 1997 Exh.PM for offences under sections 302/324/460/395, P.P.C. According to the F.I.R, the complainant was serving as Senior Headmaster in Government High School, Hajipur, Kabirwala.
Muhammad Ismail was his elder brother and lived along with him in Mouza Chah Gakariwala, Qadirpur Rawan. On the night in-between 25/26-9-1997 the complainant and his brother were sleeping in their houses alongwith their family members. At about 2-00 a.m. On hearing a noise, the complainant went in front of the house of his brother and saw that four unknown persons armed with sticks and hatchets were present inside the house and another person armed with .12 bore gun was roaming in front of the door of the Haveli of the complainant's brother. The person, who was armed with .12 bore gun entered into the house of Muhammad Ismail, brother of the complainant and two other unidentified persons were keeping guard at that time, who were armed with hatchets and sticks. The person who was armed with gun, entered into the house of Muhammad Ismail and started firing at Muhammad Ismail, and his who fell down on the ground after receiving injuries. The firing of that person also injured Muhammad Saleem son of Muhammad Ismail, Najma daughter of Muhammad Saleem and Kaneez Mai daughter of Haji Wali Muhammad. It was further stated that the complainant was overpowered by the accused, who took him to his house and confined in a room alongwith other family members. The accused had been searching the house during their presence and left the house after about 15 minutes. It is also stated in the F.I.R that per chance the door of the room of Mumtaz Bashir, son of the complainant, remained opened, who opened the door of the complainant and thereafter they went to the house of Muhammad Ismail and discovered that Muhammad Ismail and his wife Mst. Siani Bibi had died, while Muhammad Saleem nephew of the complainant was in serious condition, who was sent to the Nishtar Hospital, Multan. The complainant returned to his house and discovered that his licensed revolver, .30 bore pistol of Mumtaz Bashir, one cordless telephone set, one Radio and Taperecorder, Seiko-5 wrist-watch, one golden ring and cash Rs,1,500 had been stolen by the accused.
3. After registration of the case P.W.19 reached the place of occurrence and took into possession blood-stained earth from two different places relating to Mst. Siani Mai and Muhammad Ismail deceased vide memo. Exhs.PN and PO and two .12 bore empties P-8/1-2 were also recovered from the place of occurrence vide Exh.PP.
4. Maqsood Ahmad respondent was arrested on 17-11-1997 and was lodged in the District Jail, Multan, for identification parade. On 27-11-1997 physical remand of Maqsood Ahmad respondent was obtained, who led to the recovery of one Carbine P.9 on 1-12-1997 vide recovery memo. Mark-A.
Haq Nawaz, respondent, was arrested on '9-2-1998 and on 13-2-1998, he led to the recovery of revolver P-1, which was taken into possession vide memo. Exh.PH.
5. During investigation the respondents alongwith three other persons namely Muhammad Hanif son of Muhammad Bakhsh, Ansar son of Faiz Bakhsh Rawn and Wahid Bakhsh son of Yar Muhammad were found to be involved in the case, who were remained proclaimed absconders and were not tried.
6. The prosecution produced 19 witnesses to substantiate its case during trial. P.W.13 Bashir Ahmad and P.W.14 Muhammad Saleem furnished the ocular account. Dr.Hamid Masood appeared as P.W.1 and stated about the post-mortem examination of Muhammad Ismail deceased. He also medically examined Mst. Najma Saleem and Mst.Kaneez Mai, who were injured during the occurrence. Lady Dr.Fehmeeda Khatoon, appeared as P.W.2 and stated about the post-mortem of Mst.Siani Mai deceased. Dr.Muhammad Ahsan Min., appeared as P.W.12 and stated about the medical examination of Muhammad Saleem, P.W.14. Shaukat Abbas, Magistrate 1st Class, appeared as P.W.11 and narrated about the identification parade vis-a-vis Maqsood Ahmad, respondent, which was conducted on 24-11-1997. P.W.7 Muhammad Tahir Nawaz, Bashir Ahmad P.W.13 and Muhammad Bashir, Inspector/S.H.O. P.W.18 stated about the recoveries. Mazhar Hayat SI/SHO, P.W.19 stated about the investigation of the case. P.W.-15 Riaz Bashir stated that Haq Nawaz respondent had made confession before him.
7. After the close of the prosecution evidence, statements of the respondents were recorded under section 342, Cr.P.C. Wherein they stated that they were innocent and had been falsely involved in this case. The respondents did not appear as witness under section 340(2), Cr.P.C. However, Faiz Bakhsh Patwari D.W.1, Safdar Hussain Patwari' D.W.2 and Faiz Bakhsh son of Nabi Bakhsh D.W.3 were produced by the respondents. In a nutshell, according to their evidence Maqsood Ahmad- respondent and the complainant knew each other very well and their lands were adjacent.
According to D.W.3 Maqsood Ahmad-respondent had been a student of the complainant.
8. The learned counsel for the appellant has stated that 19 P.Ws. Have supported the case of the prosecution; that P.Ws.13 and 14 had no enmity with the respondents so as to involve them falsely in the case and that P. W.15 before whom Haq Nawaz respondent had made confession was wrongly disbelieved.
9. On the other hand, the learned counsel appearing on behalf of the respondents have argued that the prosecution has miserably failed to prove its case against the respondents and the learned trial Court had rightly acquitted the respondents.
10. We have heard the learned counsel for the parties at length and perused the record minutely.
Admittedly, it was night occurrence and had taken place in the house of Muhammad Ismail, which was adjacent to the house of the complainant. Injured persons and the deceased lived there.
P.W.13 Bashir Ahmad, real brother of the deceased and P.W.14 Muhammad Saleem son of the deceased appeared as eye-witnesses. Bashir Ahmad P.W.13 is an educated person and according to F.I.R. He reported the matter to the police after sending the injured P.W. Muhammad Saleem to the Nishtar Hospital, Multan. In his report he did not name any one as accused but during his statement before the Court, he made dishonest improvements. He has also assigned a specific role to both the respondents and introduced one Muhammad Akram as witness. During cross- examination he had admitted that he had not named any one in the F.I.R. And on each and every account he gave a stereotype anwser. That he was worried at the time of registration of F.I.R. He gave a totally different version at the time of registration of the F.I.R, as he was worried at that time.
He did not utter a single word about the identification parade. It was proved from the record that respondents were previously known to the complainant and Maqsood Ahmad-respondent was the resident of the same village. It is not the case of the prosecution that the accused had muffled their faces. In case respondents would have been the accused, P.W.13 must have named them in the F.I.R. This P.W. Made 180 decree departure from his version as given in the F.I.R with impunity. He was present when the case was registered and the F.I.R bears his signature in English. Inquest report and the injury statement were prepared within his presence. He has admitted that the police remained present at the scene of occurrence for a considerable time yet he did not disclose the names of the respondents as accused to the police. P.W.14, who was injured during the occurrence admitted that he had not named Maqsood Ahmad and Haq Nawaz in his statement before the police. Neither he has assigned any role to them nor he admitted that he came to know the names of the respondents after their arrest by the Police. However, he admitted that be named the respondents as accused for the first time on 19-11-1998 when his statement was recorded by the trial Court. He had to admit that when his statement was recorded on the date of occurrence, he stated that five unknown persons were responsible for the occurrence. This P.W. Has also not stated about the identification parade. Both these witnesses also contradict each other on major points.
The trial Court has rightly rejected their testimony as being not trustworthy.
11. P.W.11 Shaukat Abbas, Magistrate, was produced by the prosecution, who stated that the identification parade was conducted in his presence. His testimony has no value on the face of it, as both the eyewitnesses did not say a single word about the identification parade. This witness admitted in his statement that respondent Maqsood Ahmad had pointed out before him that Bashir Ahmad complainant had been a teacher and his son Mumtaz Bashir was his class-fellow and nephew of Bashir Ahmad (Muhammad Saleem P.W.14) was his neighbour. It was also pointed out by the said witness that the land of Maqsood Ahmad-respondent and the complainant were adjacent.
12. The recoveries did not advance the case of the prosecution as there is no allegation that the recovered empties were fired from the weapon recovered from the respondents. The provisions of section 103, Cr.P.C. Were also violated during the recovery proceeding.
13. Only one P.W. Namely Riaz Bashir was produced by the prosecution as P.W.15. According to him Haq Nawaz-respondent had confessed his guilt before him. This witness is son of the complainant and there is no reason available on the record as to why respondent Haq Nawaz should have made the confession before him after 4-1/2 months of the occurrence. This P.W. Also admitted that he had come to see his parents after 4-1/2 months of the occurrence when Haq Nawaz made his confession before him. This witness has made no attempt to apprehend Haq Nawaz-respondent after his confession. Allegedly at the time of confession he was accompanied by one Abdul Saeed, who was never produced before the trial Court. The evidence of extra-judicial confession in the instant case is not supported by any independent evidence, therefore, the trial Court has rightly rejected the said evidence.
14. As far as the medical evidence is concerned, it shows only that the deceased and the injured P.Ws. Received injuries through fire-arms and nothing else. The learned counsel for the appellant had remained unable to point out any misreading or non-reading of evidence, on the part of the trial Court. The reasons advanced by the learned trial Court for recording the acquittal of the respondents are neither perverse nor arbitrary and the conclusions arrived at by the learned trial Court in that regard are such that any reasonable Court should have arrived at the same upon a fair assessm ent of the evidence available on the record.
15. The upshot of the whole discussion is that we do not find any merit in this appeal and the same is dismissed.