' KHALIL-UR-REHMAN RAMDAY, J.---Ghulam Abbas, Shahid Ali and Shaukat Nazir were tried by a learned Special Judge presiding over a Special Court established at Sargodha under the Anti- Terrorism Act of 1997, firstly for committing the Qatal-e-Amd of Sultan Ali deceased; secondly for committing a murderous assault on Mst. Bashiran P.W. And thirdly for committing robbery in the house of the said deceased. Through a judgment dated 10-9-1998, the said learned Trial Judge found the said three appellants guilty of the charge under section 302/34, P.P.C.; convicted each one of them accordingly and punished each one of them with death and fine of Rs,1,00,000 or 10 years' R.I. In default of payment of fine. Each one of them was also convicted under section 324/34, P.P.C. And directed to suffer 10 years' R.I. With a fine of Rs,20,000 or two years' R.I. In default of payment of fine. All three of them were further convicted under section 394/34, P.P.C. And each one of them was ordered to undergo 10 years' R.I. And to pay a fine of Rs,20,000 or to suffer two years' R.I.
In default of payment of fine.
2. These three convicts approached the Lahore High court through Criminal Appeal No,156-I of 1998 impugning the above-noticed conviction and punishments recorded against each one of them while Murder Reference No,206-T of 1998 was received in the said Honourable High Court seeking confirmation of the above-mentioned sentences of death awarded to the said three convicts.
Through their judgment dated 13-7-1999, their Lordships in the. High Court dismissed the above- mentioned appeal and answered the murder reference in affirmative by confirming the sentences of death awarded to the three appellants.
3. These three convicts then petitioned this Court through Jail Petition No,241 of 1999 questioning their above-noticed conviction and punishments. This petition was received in this Court 59 days after the time prescribed for the purpose had expired and was therefore accompanied by an application praying for condonation of delay in the filing of the said petition under Article 185(3) of the Constitution on the ground that the appeal filed by them in the High Court had not been filed through any counsel but had been submitted through Jail; that they did not receive any intimation from the High Court in proper time about the dismissal of their said appeal and that it was on coming to know of the same through their relatives that they secured a certified copy of the judgment and filed the petition before this Court and that in the circumstances the delay in filing the said petition deserved to be condoned in the interest of justice.
4. Leave was granted by this Court in this case through an order dated 6-9-2001. It was observed in the said leave granting order that the question of condonation of delay shall also be considered at the time of the hearing of the main appeal.
5. Since the appellants before us could not afford to engage the services of an advocate for filing and prosecuting the appeal in the High Court as also for filing and pursuing their petition before this Court and thus since the appellants did not have the benefit of assistance and proper guidance of a legal practitioner and also because each one of the three appellants stood punished, inter alia, with death therefore, we are of the opinion that it was a fit case where delay in filing the petition leading to this appeal deserved to be condoned. We order accordingly and now proceed to decide this appeal on its merits.
6. The prosecution story starts with the arrival of Muhammad Aslam complainant, alongwith Zafar- Ullah (given up) at the house of his maternal uncle Sultan Ali in Chak No,7-Shumali within the area of Police Station Bhalwal of District Sargodha at about 8-00 a.m. On 24-12-1997. He disclosed through the F.I.R. Recorded at 8-30 a.m. On the said day at the above-mentioned Police Station that they reached his said maternal uncle's house and knocked at the main gate which was not responded; that then they opened the main gate and reached the residential room of the said house; that the door of the said room was slightly open and on peeping inside they found the wife of his said maternal uncles, namely, Mst. Bashiran lying on a double bed in an injured condition and moaning with pain while the dead body of his maternal uncle namely Sultan Ali was lying on a cot with a cloth wrapped around its neck; that on opening the door of the adjacent room they found the quilts and other items lying scattered while a suit-case, a brief-case and an iron-box were lying open; that the complainant and his companion Zafarullah raised ALARM as a result of which quite a few people including Muhammad Nazir Lumberdar reached there whereafter the complainant arranged transportation of Mst. Bashiran Bibi to Bhalwal hospital and after deputing some persons to guard the dead body of Sultan deceased, he proceeded to Police Station Bhalwal for lodging the F.I.R. Which, as has been mentioned-above was recorded at 8-30 a.m. This was thus the story of Muhammad Aslam complainant who was a resident of District Hafizabad and who had offered no special reason to come all the way to Sargodha to the house of his deceased maternal uncle except for a courtesy call and that also in the early morning of a cold winter day i.e, within about an hour of the sunrise.
7. On the record is also a story narrated by one Muhammad Asghar (P.W.12). He is a 27/28 years old son of a brother of Mst. Bashiran (injured . P.W.). Sultan deceased and Mst. Bashiran P.W. Did not get blessed with any child and it is on record that they had adopted this Asghar P.W. As their son who used to ordinarily reside with them although he occasionally went to visit his own parents in Mandi-Bahaud-Din. However, the case of Bashiran P.W. Was that Asghar P.W. Had returned to their house in the evening preceding the night of occurrence and was sleeping in the BAITHAK of their house on the fateful night. Asghar P.W. Also admitted being in the house of the deceased on the night of occurrence and being asleep in the BAITHAK of the said house. He claimed that he suddenly woke up at about mid-night and saw Shaukat Ali appellant armed only with a barrel of a gun, Shahid appellant armed with a Churn and Ghulam Abbas armed with a iron rod, scaling over the boundary wall of the house of Sultan deceased. He followed the three appellants and even asked Ghulam Abbas appellant to throw down the brief-case that he was carrying but he was threatened by Shaukat appellant with a gun fire. He continued to follow the appellants and on reaching Bann Habib, Shaukat appellant disappeared into a sugarcane field while Shahid and Ghulam Abbas appellants continued on and after reaching NABI SHAH they; however, went away towards Alipur. Asghar P.W. Claimed to have become tired and therefore discontinued the chase.
He rested there for about two hours and then started back towards Chak No,7-NB i.e, the place of occurrence and on reaching Chak No,13-NB he started waiting for a TONGA and in failing to find one he started to walk back to Chak No,7-NB and found, on reaching there, that Sultan had been done to death by the appellants while his Aunt Mst. Bashiran P.W. Had been seriously injured who had since been taken to the hospital.
8. Whatever had happened in the bed-room of the deceased and Mst. Bashiran P.W. Was narrated by the said Mst. Bashiran (P.W.11). She claimed that she and her husband Sultan deceased were sleeping in their bedroom; that at about mid-night Sultan deceased woke up and switched on the electric bulb in the room at which she also woke up and at that point in time, the three appellants out of whom Shaukat was armed with a gun, Shahid was armed with Churri and Ghulam Abbas was armed with an iron rod caught hold of Sultan deceased and pushing him in the room demanded valuables. She had further alleged that Sultan deceased refused to oblige at which Shaukat appellant gave a blow on the head of the deceased with the BUTT of his gun who was followed by the other two appellants who inflicted injuries on the person of the deceased with their respective weapons. She had gone on to add that Shaukat appellant repeated the BUTT blow as a result of which the gun got broken from its BUTT and in the process the gun got fired. Mst. Bashiran further disclosed that as a result of these injuries her husband died at the spot whereafter the appellants wrapped a cloth around his neck and his body and tied him with one of the legs of the cot. Bashiran claimed to have then raised hue and cry upon which the appellants caught hold of her and inflicted injuries on her person as a result of which she became unconscious and regained consciousness only after 8/9 days. This was the reason why the Investigating Officer could not record the statement of Mst. Bashiran P.W. Under section 161 Cr.P.C. Before 1-1-1998 i.e, till about 8 days after the occurrence. She also declared that the assailants had muffled their faces.
9. Muhammad Aslam complainant raised alarm at about 8-00 in the morning after finding Sultan deceased lying dead and finding Mst. Bashiran lying injured in their house and according to him quite a few people including Lumberdar got attracted to the spot and collected there. But it is strange that when Mst. Bashiran P.W. Raised hue and cry at night when sound is much more audible as against the day-time and when even a gun had got fired no one got attracted to the place of occurrence and this was in spite of the fact that the same was located in a thickly populated area. Stranger still is the claim that neither this hue and cry raised by Mst. Bashiran P.W.
Nor the firing of a gun was sufficient for Asghar P.W. To rush to the room from where all this emanated to find out why his aunt was raising alarm and why a gun-shot had been fired. It may, be mentioned here that it was admitted by Asghar P.W. That he had heard the report of a gun-Fire while he was still in his room and before he had come out to see the appellants walking away from the place of occurrence.
10. Strangest of all is the further conduct of Asghar P.W. That having heard a gun-fire in the house where he was present and awake, he opted not to rush to the said room to find out the reason or the fact of the firing of a gun and instead opted to chase the appellants. These alleged culprits were also more than cordial towards Asghar P.W. And let him chase them for miles without any serious objection or resistance and in spite of the fact that while chasing them this. Asghar P.W.
Was also raising alarm. Asghar P.W. Could not and did not apprehend the culprits that he was chasing. Even the alarm raised by him had not attracted any one on the way and despite this he continued with his pursuit of the culprits for about 13/14 miles till he got exhausted and discontinued the chase. Feeling absolutely indifferent to whatever may have happened to his aunt and to her husband, Asghar P.W. Then decided to take rest for about two hours at the Canal Bridge near Nabi Shah and returned to the place of occurrence only at about 11-00 a.m. The next morning i.e, about twelve hours after the occurrence. This story narrated by Asghar P.W. Is, to say the least, far from being believable.
11. It is true that Mst. Bashiran had received 14 injuries on her person but it was never stated by Dr. Muhammad Ali (P.W.1) who had examined her on 24-12-1997 that she was unconscious when she arrived in the hospital nor is there any evidence that she had remained so till 1-1-1998. This doctor never gave any opinion about the nature of the injuries received by her because no X-ray report had been provided to him despite his objections and instructions. A document Exh.P.0 is however available on record and as per this document 05 of these injuries received by Mst. Bashiran P.W.
Were Shujja Khafifah while 06 of them were declared as Shujjah Modiyah and only one was found to be Ghair Jaifa Mutalahimah. These were thus not the kind of injuries which could have rendered Mst. Bashiran unconscious and that also for 8/9 days. As has been noticed-above, it was the admission of Mst. Bashiran P.W. That the culprits had muffled their faces yet offers no explanation for identifying them. She had further claimed that after knocking down her husband, the accused persons had wrapped the neck and the body of the deceased with a cloth and had tied him with one of the legs of the cot. But Aslam complainant alleged that on entering the room he had found the dead body of Sultan deceased lying on a cot. It is not understandable as to how this dead body had managed to untie itself and had then further managed to lie on the bed when even Mst.
Bashiran P.W. Was also not in a position to offer any help as she had become unconscious.
12. The entire prosecution case thus comprises of strange happenings and unnatural and mysterious conduct on the part of the P.Ws. The prosecution case consists of claims which are not plausible and thus unbelievable. Needless to add that the defendants had suggested that having been adopted by the deceased and Mst. Bashiran P.W., Asghar P.W. Was demanding transfer of property by Sultan deceased to him and he might well be the one who had committed or had arranged the commission of the crime in question and that in order to save him as he was a son of a brother of Mst. Bashiran, the said Mst. Bashiran had manouvred to fabricate a false case against the appellants.
13. Be that as it may, having examined and scrutinized the entire evidence available on record, we are of the opinion that the testimony offered by the above-mentioned three crucial witnesses was not plausible. In this view of the matter the other pieces of evidence such as the alleged recovery of some allegedly robbed articles lose their significance.
14. Consequently, we are of the opinion that in the present case the prosecution could not be said to have proved the guilt of the three appellants beyond all reasonable doubts. Criminal Appeal No,333 of 2001 is therefore allowed. The impugned conviction and punishments recorded against the three appellants are set aside. Each one of them is acquitted of the charges levelled against them and shall be set at liberty forthwith if not required to be detained in any other case.
15. Before we part of this judgment, we would like to bring on record that the learned trial Judge was not conscious of the fact, even in the year 1998, that the provisions of section 302, P.P.C. Had undergone a change in the year 1990 and the said provisions no longer envisaged imposition of fine as one of the punishments awardable under the said provisions of section 302, P.P.C. The learned trial Judge also appeared to have been oblivious of the provisions of section 65 of the.
P.P.C. Which provide that the maximum term of imprisonment which could be awarded in default of payment of fine could not exceed 1/4th of the maximum term of imprisonment prescribed for the given offence. The maximum term of imprisonment envisaged by section 302, P.P.C. Is a sentence of imprisonment for life which for the purposes in question had to be reckoned as imprisonment for 25 years as per the provisions of section 57 of the Pakistan Penal Code. Therefore, directing the appellants to undergo 10 years' R.I. In default of payment of fine under section 302, P.P.C. Was also fallacious and in complete ignorance of the relevant provisions of law.