' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Murder Reference No, 242-T of 1998 as well as Criminal Appeal No, 1043 of 1998, Criminal Appeal No, 984 of 1998, Criminal Appeal No, 917 of 1998 and Criminal Appeal No, 163-J of 1998.
2. The brief facts of the case are that the formal F.I.R. No, 189 of 1998 (Exit P J/1) was registered in Police Station Jaranwala, District Faisalabad on 9-2-1998 at 7-55 a.m. On the basis of the statement Exh.P.J of Hidayat Ali son of Muhammad Mukhtar, complainant (P.W. 14). According to the F.I.R., on 8-2-1998, around 8/9-00 p.m., the complainant along with his father Muhammad Mukhtar and brother Sadiq Ali was present in his house while his brother Muhammad Mushtaq was present in the adjacent room and Mst. Hanifan wife of Sa21q Ali and Mst. Hanifan, ' wife of the complainant were also awoke when around 8/9-00 p.m., four armed persons who were seen by the complainant in the light of the lantern and who could be identified by him, emerged. When Sadiq Ali and Muhammad Mukhtar (the brother and father respectively of the complainant) came out of the room, one of the culprits fired at Sadiq Ali. The complainant as well as Muhammad Mukhtar and Muhammad Mushtaq and the aforesaid ladies caught hold of him and thereupon the said culprit called his companions who fired and injured Muhammad Mushtaq. The said culprits then fired at Sadiq Ali and Muhammad Mushtaq and got rescued their companion from them. The culprits gave butt blows to the complainant and Muhammad Mukhtar. Thereafter, they fled away while tiring and taking along with their guns .12 bore. When the P.Ws. Attended to Muhammad Mushtaq and Sadiq Ali (brothers of the complainant), it was found that they had expired. The complainant alleged that all the four culprits who were equipped with firearms, as aforesaid, had trespassed (in their house) and had killed his brothers Sadiq Ali and Muhammad Mushtaq, deceased. They i,e, the culprits had been seen while running away by Inayat Ali and Muhammad Ashfaq P- Ws. As well. Thereafter, the complainant reported the matter to the police.
3. P.W.16 Barkhurdar Ahmed, Inspector/S.H.O. Had recorded the statement of Hidayat Ali, complainant Exh.P.J. At Jhaal Bootey Wali. After the completion of investigation, challan was submitted in the Court. As many as 8 accused namely Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo, Arshad alias Neela, Muhammad Ashraf alias Papu, Waris Ali, Niaz AE alias Najia and Mushtaq alias Makha were formally charged by the learned Special Judge, Anti-Terrorism Court (Punjab), Faisalabad Division, Faisalabad on 28-7-1998.
4. The first charge against Ilyas, Akhtar, Maajid alias Maujoo and Arshad accused was that on 8-2- 198 at 8/9-00 p.m., in the area of Chak No,117 GB, Police Station Jaranwala, they being armed with deadly weapons had trespassed into the house of Hidayat Ali complainant to commit Qatl-eAmd of Muhammad Mushtaq and Sadiq Ali, deceased and had thus committed the offence under section 449, P.P.C. The second charge against the said four accused persons was that after trespassing into the house of Hidayat Ali complainant, had attempted to commit robbery and had thus committed an offence under section 393, P.P.C. The third charge against these four accused was that all four of them in furtherance of their common intention had caused the death of Muhammad Mushtaq and Sadiq Ali, deceased and thereby they had committed an offence under section 302/34, P. P.0 .
5. The fourth charge was against Muhammad Ashraf alias Pappu, Waris Ali, Niaz Hussain and Mushtaq alias Makha, accused Nos. 5 to 8 and which was to the effect that they had abetted their co-accused i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela (accused, Nos. 1 to 4) and in consequence thereof, they had committed Qatl-e-Amd of Muhammad Mushtaq, and Sadiq Ali, deceased and thereby had committed the offence under section 109 read with section 302, P.P.C. The fifth charge was against, accused Nos. .5 to 8 regarding abetment under section 109 read with section 393, P.P.C.
6. The 6th charge was against accused Nos. 1 to 4 i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused and which was to the effect that they had displayed lethal weapons and had made indiscriminate firing, causing harassment and terror in the locality at large and thereby they had committed an act of terrorism which is an offence punishable under section 7 of the Anti-Terrorism Act, 1997.
7. All the eight accused pleaded not guilty and claimed trial. The prosecution was called upon to produce its evidence.
8. The prosecution examined, as many as 16 P. Ws. In this case, besides producing some documentary evidence including reports of Chemical Examiner Exh.P.D.D and Exit. P. E .E, reports of Serologist Exh . P . F. F and Exh.P.G.G. And report of Forensic Science Laboratory Exh.P.H.H. The statements of the accused were recorded under section 342, Cr.P.C. And on the conclusion of trial the learned trial Court heard the arguments and convicted all the eight accused.
9. Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused Nos.1 to 4 were convicted under sections 302/34, P.P.C. And were awarded punishment of death as Taazir on each count. They were also directed to pay a fme of Rs,50,000 each and in default of payment of fine to undergo R.I. For six years. They were also convicted under section 449, P.P.C. And awarded imprisonment for life for committing criminal house-trespass to commit dacoity. They were also directed to pay a fine of Rs,10,000 each and in default of payment of fine to further undergo R.I. For six years. Accused Nos.1 to 4 were also convicted under section 393, P.P.C. For attempting to commit dacoity and were awarded R.I. For seven years each and to pay a fine of Rs, 10,000 each and in default of payment of fine to further undergo R.I. For two years.
10. The learned trial Court also convicted them i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused guilty for the offence under section 7 of the Anti-Terrorism Act, 1997 and awarded death sentence on each count and to pay a fme of Rs, 50,000 each and in default of payment of fine to undergo R.I. For six years. Accused, Nos. 5 to 8 i,e, Muhammad Ashraf alias Pappu Waris Ali, Niaz Hussain and Mushtaq alias Makha were convicted for the offence under section 109 read with section 302, P.P.C. And awarded imprisonment for life. All four of them Were also awarded R.I. For two years each under section 109 read with section 393, P.P.C.
11. For confirmation of sentence of death awarded to the accused Nos. 1 to 4 i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela, the learned trial Court sent a reference to this Court. Muhammad Ilyas, Muhammad Ashraf alias Pappu, Niaz Hussain alias Naja, Mushtaq Ilyas. Makha and Maajid alias Majoo filed Criminal Appeal No, 1043 of 1998 against the impugned judgment, Akhtar Ali accused filed a separate appeal (i,e, Criminal Appeal No, 917 of 1998). Arshad alias Neela filed an appeal against the impugned judgment through Superintendent Jail and which is Criminal Appeal No, 98-J of 1998. Similarly Waris Ali accused also filed an appeal through Superintendent Jail and which is Criminal Appeal No, 163-J of 1998. Through this judgment all the said appeals and the Murder Reference No, 242-T of 1998 sent by the learned trial Court are being disposed of.
12. So far as the prosecution evidence is concerned, it has already been stated that the prosecution had examined in this case as many as 16 P.Ws.
13. The investigation in this case had been conducted by P.W. 16 Barkhurdar Ahmed, Inspector/S.H.O. Of Police. Station Jaranwala who had recorded the statement of Hidayat Ali complainant as Exh.P.J. On the basis of which the formal F.I.R. Exh.P.J/1 had been registered. He had prepared the injury statement Exh.P.H and inquest report Exh.P. 1 of Sadiq Ali, deceased as well as the injury statement Exh.P.E and inquest report Exh.P.F of Muhammad Mushtaq, deceased. He had prepared the rough site plan Exh.D.C. And had sent' the dead bodies for post-mortem examination.
He completed other formalities as well, such as collection of blood-stained earth and other articles i,e, cartridges, empties, lantern, last-worn clothes of the deceased., arrest and interrogation of the accused, recovery of weapons of offence. He made efforts to arrest Arshad alias Neela accused who was then absconding and obtained his warrants of arrest and proclamation. He recorded the statements of all the P.Ws. After completion of investigation, the accused were challaned by him.
14. The medical evidence in this case was furnished by P.W. 4 Doctor A.R. Tahir, Medical. Officer, Tehsil Headquarters Hospital, Chiniot. He had conducted the post-mortem examination of the dead bodies of both the deceased persons on 9-2-1998. According to him he had found the following injuries on the dead body of Muhammad Mushtaq son of Mukhtar Ahmad:--
(1) A lacerated wound of fire-arm (entry) with black margins 1-V2 c.m. x 1 c.m. x chest cavity deep on left side of front of the chest.
(2) A lacerated wound of entry of firearm 3-V2 c.m. x 2 c.m. x bone deep on lateral side of left upper arm. There was fracture of left humerous bone.
(3) A lacerated wound of entry of firearm injury 8 c.m. x 2 c.m. x chest cavity deep just near the left arm-pit.
(ii) The cranium and spinal card were healthy.
(iii) Thorax.---The walls were damaged at the sides of injury, pleura was damaged, right and left lungs were ruptured, blood vessels were ruptured in left arm-pit. Rest of the organs of thorax were healthy.
(iv) Abdomen.---The stomach contained semi-digested food and the small intestine contained paste like material. The urinary bladder was full of urine. The rest of the organs of the abdomen were healthy.
(v) Mussles, bones and joints As already mentioned.
5 Pellets were recovered from chest and left upper arm.
' In his opinion injuries Nos.1 and 3 were anti-mortem and fatal which led to haemorrhage and shock and caused death in the ordinary course of nature. He described the same as fire-arm injuries. Exh.P.D. Is the carbon copy of the original post-mortem report while Exh.P.D/1 is the pictorial diagram showing the seats of injuries. According to him, the death had occurred at 7-00 a.m. On 9-2-1998 while the post-mortem examination was conducted on the same day at 1-30 p.m.
15. On the same day i,e, 9-2-1998 around 2-30 p.m., P.W. 4 had also conducted the post-mortem examination of the dead body of Sadiq Ali deceased son of Mukhtar Ahmed. He had found the following injuries:--
(1) A fire-arm lacerated wound 7 c.m. x brain deep, right eye, orbit and upper part of cheek (were damaged).
' A lacerated fire-arm entry wound 4 c.m. x 3 c.m. x bone deep on the upper part of back of right forearm. A lacerated wound of fire-arm (exit wound) 13 c.m. x 5 c.m. x bone deep on the front of right elbow-joint.
(II) Cranium and spinal card.---The skull was fractured and the brain was damaged. 7 pallets were recovered from the skull.
(III)Throax.---All the organs of thorax were healthy and heart was empty.
(IV)Abdomen.---The stomach contained undigested food material and the small intestine contained paste like material. The bladder was half filled with urine. The rest of the organs of abdomen were healthy.
(V) Mussles, Bones and Joints. ---As already mentioned.
' In this opinion Injury No, 1 was sufficient to cause haemorrhage, brain damage and shock and which could surely lead to death in the ordinary course of nature. According to him the probable time that elapsed between injury and death was immediate and that between death and postmortem examination was within about 8 hours. Exh.P.G is the carbon copy of original post- mortem report while Exh.P.G/1 and Exh.P.G/2 are the pictorial diagrams showing the seats of injuries.
16. P.W.1 is Zafar Ali, Constable No,2626 of Police Station Jaranwala who had taken the dead body of Sadiq Ali, deceased for post-mortem examination to the Civil Hospital, Jaranwala and had then brought it back along with last-worn clothes of the deceased. P.W.2 Allah Ditta, Head Constable No, 2640 was entrusted bailable warrants of arrest of Arshad alias Neela and which is Exh.P.B. The proclamation Exh.P.C. Had also been affixed by him and he had recorded a report in that respect which is Exh.P.0 /1. P.W. 3 Anwar Hussain had identified the dead bodies of Sadiq Ali and Muhammad Mushtaq, deceased at the time of post-mortem examination. P.W.5 Muhammad Rafique, A.S.-I. Had recorded the formal F.I.R. Exh.P.J/1 on the receipt of complaint Exh.P.J. P.W. 6 Abdul Ghafoor, Constable No, 2854 had escorted the dead body of Muhammad Mushtaq, deceased to the mortuary at THQ Hospital, Jaranwala an 9-2-1998. After the post-mortem examination he had handed over the last-worn clothes of the said deceased to the Investigating Officer which he had taken into possession vide memo. Exh.P.K. He had also handed over to the Investigating Officer the post-mortem report of the deceased.
' P.W. 7 is Muhammad Aslam, Head Constable No,419 who stated that on 10-12-1998, the S.H.O. Had handed over to him two sealed parcels containing bloodstained earth for safe custody in Maal Khana and for onward transmission to the office of Chemical Examiner. On the same day the S.H.O.
Had handed over to him a sealed parcel alleged to have contained 3 empties for safe custody and for onward transmission to the office of Fire-arm Expert. On 19-2-1998, he had handed over the aforesaid three parcels to Muhammad Iqbal, Constable No, 270 for onward transmission to the office of Chemical Examiner and Fire-arms Expert. On 21-21998 the S.H.O. Had given to him two sealed parcels alleged to have contained clothes and three sealed parcels alleged to contain guns for safe custody in Maal Khana and for their onward transmission. On 24-2-1998 he had handed over the said sealed parcels to Muhammad Iqbal, Constable for taking them to the office of Chemical Examiner and Firearms Expert. P.W. 8 Noor Elahi was a witness to the recovery of lantern from the spot which is Exh.P.6 and also the three empties cartridges. Lantern had been taken into possession by the Investigating Officer vide memo. Exh.P.L and three empties aforesaid vide memo.
Exh.P.M. According to him, the police had taken into possession nine live cartridges Exh.P.8/1-9 vide recovery memo. Exh.P.N. And that the police had taken into possession a bag Exh.P.9, Jacket Exh.P.10, Shirt, Exh.P.-11 and Shalwar Exh.P.-12 vide memo. Exh.P.O. The blood-stained earth had been taken into possession by the police from the place of murder of Muhammad Mushtaq and Sadiq Ali, deceased vide memos. Exh.H.P.P and Exh. P Q.
17. P.W. 8 Noor Elahi deposed that on 21-2-1998 he had again joined police investigation and that he and Abdul Majeed were present near the Dera of Abdul Majeed and that all the eight accused came to the bridge from the side of Chak No, 74-GB and that they were going on the eastern bank of the Sem Nala around 10-00 a.m: when the police party reached there. He deposed that they told the police party that the accused had just passed froze there. The police took them along and chased the accused and that Arshad accused threw away his gun .12 bore. Exh.P.13, alive cartridges Exh.P.14 and blood-stained Chaddar Exh.P.15 and ran away; that the police took the same into possession vide memo. Exh.P.R. Thereafter the police arrested Ashraf accused Who was holding the gun Exh.P.16 and which was taken into possession by the police along with two live cartridges from the pocket of his right side and which are Exh.P.17/1-2. A live cartridge was also extracted from the barrel of the gun Exh.P.18 and which were taken into possession vide memo. Exh.P.S. Thereafter Akhtar Ali accused was arrested and .30 bore pistol Exh.P.19 was recovered from him along with three live bullets Exh.P.2/1-3 which were all taken into possession vide memo. Exh.P.T. He deposed that the police also took into possession blood-stained Shalwar Exh.P.21 and bloodstained Shirt Exh.P.22 vide memo. Exh.P.U. He stated that Waris Ali accused got recovered a .30 box pistol Exh.P.23 from a heap of Sarkanda (reed bushes) lying outside his house near the outer door. He also got recovered three live bullets Exh.P.24/1-3 which were taken into possession vide memo. Exh.P.B.
Thereafter, Maajid accused got recovered a .30-bore mauser Exh.P.25 which was taken into possession vide memo., Exh.P.W. Then Ilyas got recovered a .12 bore gun Exh.P.26 from the Sem Nala which was taken into possession vide memo. Exh.P.K. Thereafter the Dera of Akhtar accused which was locked was raided. Akhtar All accused dug a place near the door of the Dera and took out a key which he !Landed over to the police. Then the police opened the door and thereupon the said accused got recovered gun Exh.P.27 from underneath the bed. The police took into possession a lock and key Exh.P.28 and Exh.P.29 and also a gun Exh.P.27 vide ntem o. Exh.P.Y. P.W.-8 stated that he had signed all these memos. Along with Abdul Majeed P.W.
18. P. W.9 is Aurangzeb Draftsman who on the pointing out of the P.Ws. And on the direction of the police had inspected the place of occurrence and had prepared the site plan Exh. P. Z and Exh .P.
Z/1.
19. Concerning the allegation of abetment, the prosecution examined P.W. 10 Fazal Ahmed who stated that about six months ago, around 5-30 p.m., he along with Ahmed Ali P.W. Was coming to Faisalabad from Chak No, 117 G.B. And when they reached near Murghi Klima More in the area of Chak No, 74 GB, they saw Ilyas, Maajid, Akhtar, Ashraf, Niaz and Mushtaq accused. They got up on seeing them and were seen having firearms with them. Mushtaq handed over .30 bore double- barrel gun to Ilyas. Ashraf have single-barrel, gun to Neela. They were talking with each other.
Ashraf, Niaz and Mushtaq said that they had gathered by chance and that something should be done and Arshad said that the programme chalked out' by Akhtar and Waris should be acted upon.. P.W. 10 stated that they went back on the second day around 9 or 10-00 a.m. When the occurrence had taken place and the police had already gone with the dead bodies and the people were talking with each other. They told them about that what they had heard. This witness again stated that they had told the police about the aforesaid fact. Shaukat All P.W. 11 deposed that he along with. Imtiaz, Arif and Muhammad Shafi was going from Satiana Road to Chak No, 117-GB via Chak No, 77-GB at 6-00 p.m. About six months ago. When they reached the Pul of Sem Nahar, they saw Muhammad Ilyas armed with .12 bore gun, Arshad alias Neela armed with single-barrel .12- bore gun, Akhtar armed with single-barrel .12 bore gun, Maajid and Waris armed with .30 bore pistols. They were consulting with each other about the commission of dacoity. Then they i,e, P.Ws.
And his companions proceeded to their Chak. On the following morning they came to know about the occurrence. They reached the place of occurrence around 10-00 a.m., when the police was already present there. He stated that the police had already come to know about the names of the accused, and that they had also told the police about, the names of the accused.
20. The eye-witness account in this case is furnished by. P.W.12 Mst. Hanifan widow of Sadiq Ali, deceased, P.W. 13 Muhammad. Ashraf and P.W. 14 Hidayat Ali. P.W.12 stated that Sadiq Ali deceased was her husband while Muhammad Mushtaq deceased was a younger brother of her husband.
About six months ago, around 8/9-00 p.m. She along with her husband Sadiq Ali deceased and Hidayat Ali complainant, Mukhtar Ahmed and Mst.Hanifan wife of Hidayat Ali was sitting in their residential room and discussing their household affairs. The door was open and a hurricane lamp was hanging on the door when four persons came there. She named them as Ilyas, Akhtar, Arshad alias Neela and Maajid. She stated that Ilyas was armed, with a .12-bore double-barrel gun, Akhtar and Arshad with single-barrel .12 bore guns and Maajid with a .30-bore pistol. She deposed that all of them aimed their firearms at them, there atened them and asked them to hand over to them ornaments or money, etc, otherwise they would be killed. Her husband Sadiq Ali advanced and enquired as to what money (they were talking about) and thereupon Ilyas accused fired with his gun hitting his right eye. When they intervened, Akhtar accused fired, hitting Sadiq Ali deceased on his right arm. They captured Ilyas accused. In the adjoining room Muhammad Mushtaq, Inayat and Ashraf were present. They ran towards them on hearing the reports of gun-tires and Muhammad Mushtaq caught Ilyas accused. Then Arshad alias Neela accused fired at Muhammad Mushtaq hitting on his left arm and chest. Muhammad Mushtaq fell down on the ground. They caught hold of Arshad alias Neela, but in order to rescue him the other accused gave them numerous blows with the butts. She had received butt blows on her head (which she described as brain) and stated that she was not feeling normal. The accused ran away after firing. She stated that the act of the accused had created terror in the Illaqa, so much so that their three small children proceeded to the house of their maternal grand-parents and since then they have been residing there. She stated that as two murders had been committed in their house, they had lost their senses and did not feel normal. P.W. 12 is supported by P.W. 13 Muhammad Ashraf as also P.W. 14 Hidayat Ali who deposed almost on the same lines.
21. P.W. 15 Muhammad Iqbal, Constable No, 2702 deposed that on 19-2-1998 Muhammad Aslam, Moharrir Head Constalbe No, 419 had handed over to him. Two sealed parcels said to contain bloodstained earth and one sealed parcel said to contain empty cartridges for onward transmission to the office of Chemical Examiner and to the office of Forensic Science Laboratory, Lahore. On 21-2-1998 he deposited the two sealed parcels containing blood-stained earth in the office of Chemical Examiner, Lahore and the sealed parcels said to contain empties cartridges in the Forensic Science Laboratory. He stated that on 24-2-1998 Muhammad Aslam, Moharrir/HC had handed over to him two sealed parcels said to contain clothes and three sealed parcels said to contain .12 -bore guns. On the same day he deposited the aforesaid two sealed parcels said to contain clothes in the office of Chemical Examiner and three sealed parcels said to contain .12 bore guns in the office of Forensic Science Laboratory, Lahore.
22. On the conclusion of the prosecution evidence the statements of the accused under section 342, Cr.P.C. Were recorded. Muhammad Ilyas accused in his statement under section 342, Cr.P.C.
Denied all the incriminating circumstances. In answer to question No, 6 he denied that the gun P.26 had been got recovered by him and which tallied with one of the empties recovered from the place of occurrence as per report of Forensic Science Laboratory, Exh.P.H.H. And claimed that it was a fabricated document. In answer to question No,9 he stated that in fact the culprits could not be identified by the complainant party and that they in connivance with Investigating Officer had cooked up this false case and that the P.Ws. Are related inter se and had deposed falsely. Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused made similar statements. So far as accused Nos.5 to 8 are concerned, they also denied all the incriminating circumstances . However, none of the accused made statement on oath under section 340(2), Cr.P.C. Nor any of them produced any evidence in defence.
23. After conclusion of the trial- the learned trial Court convicted all the eight accused and sentenced them as. Aforesaid.
24. Learned counsel for Ilyas, Akhtar Ali, Maajid and Arshad alias Neela, accused/appellants have argued that the complainant Hidayat Ali has himself disowned the F.I.R. And as such it is a case without an F.I.R. It was pointed out that none of the accused was specifically named in the F.I.R.
They have argued that AkInar accused lived there in the same village, close to the house of the deceased, then how is it that his name was not mentioned in the F.I.R. But the complainant and other P. Ws. While appearing before the Court i,e, P.W. 12, P.W. 13 and P.W. 14 specifically named the accused and which is clearly .An improvement. The learned counsel for the appellants argued that if the eye-witnesses were aware of the names of the culprits at the time of occurrence, then the question would arise as to why their names were not mentioned in the F.I.R. The learned counsel for appellants have argued that the eye-witnesses are closely related to the deceased and they have effected improvements in their statement but in spite of it their statements are full of contradictions and discrepancies and as such they do not inspire confidence. They have argued that the entire prosecution evidence is discrepant and that the medical evidence is also in conflict with the ocular account and the recovery evidence on record is not sufficient to provide corroboration.
25. Learned counsel for the appellants have argued that prosecution evidence relating to the alleged abetment is very weak and therefore, reliance cannot be placed on the same and that the evidence relating to the recovery of the alleged weapons of offence is also weak and the recoveries were totally fake and fictitious and the alleged weapons of offence had been planted upon the accused just to strengthen the prosecution story. It was further argued on behalf of the appellants that the investigation of his case was conducted dishonestly and that the Investigating Officer did not conduct the investigation in an impartial manner.
Moreover, the prosecution had failed to prove the motive in this case and that it had failed to bring guilt home to the accused and as such it is . Clear that the learned trial Court has wrongly convicted the accused.. They have asserted that the prosecution evidence which is full of inconsistencies and contradictions does not warrant conviction and that the conviction as well as the sentence awarded by the learned trial Court to all the accused/appellants is liable to be set aside.
26. On the other side, learned counsel for the State argued with the assistance of learned counsel for the complainant that the F.I.R. Had been promptly lodged and if Hidayat Ali complainant had any intention to falsely involve the accused, he could have done so, in the first instance and it was not necessary for him to wait for some time to implicate the accused falsely in this case. He has argued that at the spur of the moment, soon after the occurrence, the complainant as well as the other eye-witnesses, in whose presety, he occurrence had taken place and before whose eyes two young persons of their family had been done to death were in shock and were not in their senses.
In the circumstances it was not unnatural for the complainant to have missed the names of the culprits, in the F.I.R. They have argued that there was no-reason for the eye-witnesses to leave the real culprits and to involve the accused falsely in a case involving capital sentence. The complainant whose two real brothers had been killed was clearly in shock and ,was not expected to behave like a normal person soon after the occurrence. They have argued that all the eye- witnesses are natural witnesses of the occurrence and are independent and reliable witnesses and merely their relationship with the deceased does not make them unreliable. They have argued that the accused had been identified in the light of lantern (hurricane lamp) and the P. Ws. Had grappled with the accused and that during this scuffle the clothes of Arshad alias Neela accused and live cartridges along with a bag had been snatched from him and that empties had also been recovered at the spot and subsequently weapons of offence were also recovered from the accused and that empties and weapons of offence had been sent to the Director, Forensic Science Laboratory, Lahore and from their report was received that the empties were found fired from the guns secured from the accused. They have further argued that the medical and recovery evidence fully corroborates ocular account and that there is sufficient evidence on record about abetment.
They have argued that although there may be minor discrepancies or contradictions in the prosecution evidence but the same were not sufficient to disbelieve the prosecution story as a whole. They have asserted that the learned trial Court had rightly convicted the accused and the sentences awarded by the learned trial Court were legally justified and should be, therefore, upheld.
27. We have carefully considered the arguments of the learned counsel for the parties. It is correct that the accused had not been specifically named in the F.I.R. However, there is much substance in the argument that the complainant who is brother of the two deceased could not be expected to behave like a normal person soon after the occurrence. A man who had lost his two young brothers and that too in his own house could not be in control of his senses. As such there is no surprise that he did not name the culprits in the F.I.R. Although subsequently he informed the police about their names and also named them specifically at the stage of trial. It is not conceivable as to why Mst.
Hanifan P.W. 12 who lost her husband Sadiq Ali deceased during the occurrence would tell a lie in order to save the real culprits and to falsely implicate and accused in this case. Had it been the case, she would not have wept while making the statement before the learned trial Court. How could she be expected to depose falsely to save real culprits who had destroyed her everything in life by killing her husband in her own house and to rope in some innocent people. P.W. 13 Muhammad Ashfaq and P.W. 14 Hidayat Ali are also the natural witnesses of the occurrence. Even if Akhtar accused had a house in the same locality, there is no evidence that those days he was living there. AT how, it hardly makes any difference if he too was not specifically named in the F.I.R., like three other culprits who are alleged to have actually participated in the occurrence. The gun P- 27 recovered from him tallied with one of the empties as per report of Forensic Science Laboratory, Exh. P. H. H . Arshad alias Neela accused had remained an absconder after the occurrence. Had he not taken part in the occurrence, there could be no reason for his abscondence. As per report of Forensic Science Laboratory, one crime empty tallied with the gun P-13 which he had thrown back while running away. So far as Ilyas accused is concerned, gun .12 bore which is Exh.P.26 was got recovered by him from the Sem Nala. According to the report Exh.P.H.H, a crime empty was found to have been fired with this gun.
28. According to the prosecution story, Maajid alias Maujoo accused had got recovered a .30 bore mauzer Exh.P. 25 which had been taken into possession vide memo. Exh.P.W. The said mauzer does not appear to have been sent to the Forensic Science Laboratory nor there is any report on record in that respect. So we att prepared to give him benefit of doubt in that respect. Lack of corroboration in that respect, renders recovery evidence (against Maajid alias Maujoo accused) inconsequential and for want of corroboration of ocular account, he is entitled to be acquitted. But so far as Muhammad Ilyas, Akhtar Ali and Arshad alias Neela accused are concerned, all the charges against them are proved to the hilt. The ocular account in that respect is corroborated by recovery evidence, and medical evidence also by the report of Forensic Science Laboratory. It is proved on record that they, armed with deadly weapons trespassed into the house of Hidayat Ali complainant/P.W. To commit Qatl-e-Amd of Muhammad Mushtaq and Sadiq Ali deceased and so they committed the offence under section 449, P.P.C. They also trespassed into the house of Hidayat Ali complainant and attempted to commit robbery and hence committed an offence under section 393, P.P.C. They, in furtherance of their common intention caused the death of Muhammad Mushtaq and Sadiq Ali, deceased and thereby committed the offence under section 302/34, P.P.C. They displayed lethal weapons and indulged the indiscriminate firing which caused harassm ent and terror in the locality and thereby they are clearly guilty of an act of terrorism i,e, of the offence under section 7 of Anti-Terrorism Act, 1997. All the charges against all three of them are clearly established.
29. So far as the remaining four accused/appellants i,e, Muhammad Ashraf alias Pappoo, Waris Ali, Niaz Hussain alias Naja and Mushtaq alias Makha are concerned, neither the charge under section 109 read with section 302, P.P.C. Nor the charge under section 109 read with section 393, P.P.C. Are proved against him beyond reasonable doubt. The statement of P.W. 10 Fazal Ahmed does not inspire confidence and does not find support or corroboration from any other P.W. Ahmed Ali P.W.
Was examined by the prosecution and the presumption of law of evidence has to go against the prosecution in that respect. There is not sufficient evidence on record to prove the charge of abetment against any of these four accused and the effort of the prosecution to prove these charges against these four accused i,e, Muhammad Ashraf alias Pappu, Waris Ali, Niaz Hussain alias Naja and Mushtaq alias Makha was halfhearted. So they are entitled to be acquitted of the charges against them. Their conviction and sentences awarded to them by the learned trial Court cannot be legally sustained and are liable to be set aside.
30. In consequence of what has been discussed above, to the extent of (1) Muhammad Ashraf alias Pappu, (2) Niaz Hussain alias Naja, (3) Mushtaq alias Makha and (4) Maajid alias Maujoo accused Criminal Appeal No, 1043 of 1998 is accepted and the conviction as well as sentences awarded to them by the learned trial Court are set aside. They are given the benefit of doubt and are acquitted of all the charges.
(b) To the extent of Muhammad Ilyas accused, however, Appeal No, 1043 of 1998 is dismissed.
(c) Criminal Appeal No, 917 of 1998 of Akhtar Ali accused is dismissed and conviction and sentence awarded to him by the leaned trial Court on all the charges is upheld.
(d) Criminal Appeal No, 98-J of 1998 of Arshad alias Neela accused is dismissed and the conviction and sentence awarded to him by the learned trial Court on all the charges is upheld.
(e) Criminal Appeal No, 163-J of 1998 of Waris Ali accused is accepted and conviction and sentence awarded to him by the learned trial Court is set aside. He is given the benefit of doubt and acquitted of all the charges.
(t) Death sentence awarded to Maajid alia Maujoo accused is not confirmed. However, death sentence awarded to Muhammad Ilyas, Akhtar Ali and Arshad alias Neela accused is confirmed, as such Murder Reference with regard to above three accused i,e, Muhammad Ilyas, Akhtar All and Arshad alias Neela is answered in affirmative, however, qua Majid alias Maujoo, the same is answered in negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.