' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,198-J of 2002, filed by Jabar Hussain, appellant and Criminal Appeal No,889 of 2002 filed by Shakeel Ahmad, appellant who were convicted and sentenced by learned Judge Anti-Terrorism Court No,1, Gujranwala vide judgment dated 29-5-2002 as under:-- {{TABLE}} J Jabbar HussainImprisonment for life and to pay a fine of Rs.2 lass, in default six months' S.-I. under section 302(b), P.P.C. read with section 7(a) of Anti---Terrorism Act, 1997.
10 years R.I. and to pay a fine of Rs. One lac, in default six months' S.-I. under section 324, P.P.C. read with section 7(b) of Anti-Terrorism Act, 1997 and Two years' R.I. under section 353, P.P.C.
All the sentences were ordered to run concurrently.
Shakeel AhmadDeath and to pay a fine, of Rs. Five lacs, in default six months' S.-I. under section 302(b), P.P.C. read with section 7(a) of Anti-Terrorism Act, 1997, 10 years R.I. and to pay a fine of Rs. One lac, in default six months' S.-I. under section 324, P.P.C. read with section 7(b) of Anti-Terrorism Act, 1997 and Two years' R.I. under section 353, P.P.C.
' Murder Reference No,66-T of 2002 for confirmation of death sentence or otherwise of Shakeel Xhmad appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 9-50 a.m. On 4-11-2001 at a distance of 1 kilometre from Police Station Hajipura District, Sialkot while the matter was reported to the Police by Asmat Ullah through written complaint Exh.P.N. At 11-10 a.m. On the same day at Civil Hospital, Sialkot and the formal F.I.R. Exh.P.M./1 was recorded by Muhammad Arif, A.S.-1.
3. Briefly stated the facts of the case are that Asmat Ullah, the complainant was present near BBC Chowk Fateh Garh alongwith Khadim Hussain, HC and Muhammad Riaz, A.S.-I. In connection with security arrangements when information was laid through a mukhbar that Imtiaz Sohail alias Sohaila a nominated accused in case F.I.R. No,557 dated 27-10-2001 under section 392, P.P.C. And Shakeel Ahmad alongwith an unknown person, all armed with .30 bore pistols were present at Fateh Garh Road in a street of Mohalla Hajipuara with an intention to commit an offence.
Muhammad Riaz, A.S.-I. Gave information to Police Station on telephone. When the complainant alongwith his companions had just reached in the street mentioned above and were to park the motorcycle, they saw Imtiaz Sohail, Shakeel and one unknown standing in the street. Shakeel said to his companions in a loud voice that the Police had come and they should save thethselves. He simultaneously fired two shots with his pistol which hit on the face of Muhammad Riaz A.S.-I.
Thereafter, Sohail also fired two shots which hit on left side of head and left shoulder of Muhammad Riaz A.S.-I. Then all the three accused fired at Muhammad Riaz which hit on various parts of his body. The accused ran away and were chased by Khadim Hussain and the complainant while firing with their official arms. After covering some distance, Imtiaz Sohail fired at the complainant which hit on his belly and the accused ran away. Khadim Hussain shifted both the injured to hospital where Muhammad Riaz, A.S.-I. Succumbed to his injuries. As a result of firing, one Bhola a passerby was also injured.
4. Investigation of the case was taken over by Muhammad Irfan-ul-Haq (P.W.19). He after receipt of information regarding the occurrence, went to Civil Hospital, Sialkot, recorded the statement of Asmat Ullah, the complainant and sent the same to Police Station for registration of the F.I.R. The dead body of Muhammad Riaz deceased was examined by the Investigating Officer. He prepared the injury statement Exh.P.T. And also the inquest report Exh.P.T./1. From the spot, blood-stained earth was taken into possession vide memo. Exh.P.B. And 21 crime empties were secured vide memo. Exh.P.C.8 crime empties of shots fired by the Police Officials were taken into possession vide memo. Exh.P.E. Four crime empties of .30 bore pistol were also secured vide memo. Exh'.P.D. The accused Shakeel was arrested on 13-11-2001 and on 19-11-2001, the Investigating Officer got conducted the identification parade of Jabar Hussain held in the jail premises. On 19-11-2001, the accused Shakeel got recovered .30 bore pistol P.8 which was taken into possession vide memo.
Exh.P.J. Similarly, on 28-11-2001, Jabar Hussain got recovered .30- bore pistol P.9 which was taken into possession vide memo. Exh.P.K. Muhammad Anwar. P.W.16 arrested Jabar Hussain accused who was already in the custody of Police of Police Station Naikapura, on the same day produced him before a Magistrate and sent him to jail for identification parade. The third unknown accused namely Faisal alias Poma was got transferred from District Jail, Gujrat and on 19-2-2002, identification parade was held in jail. The physical remand of Faisal was obtained and he while on remand got recovered pistol P.10 which was secured vide memo. Exh.P.L. After completion of the investigation, all the three accused were challaned to face the trial.
5. Malik Saeed Hassan, learned counsel for appellant Shakeel Ahmad after having read the entire prosecution evidence and other material available on record submits that there was no motive on the part of appellant to have committed murder of the deceased or join hands with his co- accused namely Imtiaz Sohail (P.O.) and that Shakeel appellant had no relationship or friendship with his co-accused. Further submits that the motive,' if any, laid with Imtiaz Sohail and not to Shakeel, appellant. According to learned counsel, all the Police Officials including the deceased were in plain clothes when according to their own statements they were on official duty for checking security arrangements. Learned counsel submits that it was a case of personal vengeance because Shakeel appellant was involved in the murder case of a cousin of Irfan-ul- Haq, Inspector/S.H.O. (P.W.19) who was also the Investigating Officer of the instant case. According to the learned counsel, both the eye-witnesses are Police Officials and there being no independent corroboration to their statements, no reliance can be placed on their testimony. Further submits that according to Doctor Shabbir Hussain (P.W.5) who conducted post-mortem examination on the dead body of Muhammad Riaz, the deceased, the injuries could have possibly been caused by one fire-arm. Elaborating his arguments, learned counsel submits that according to case of the prosecution, the appellant Shakeel and his co-accused were armed with automatic weapons and spray of one burst from the one fire-arms could have caused the injuries on the person of the deceased.
' Learned counsel submits that that the occurrence had admittedly taken place in a thickly- populated area but not a single public witness was either cited or produced by the prosecution before the trial Court while 18 persons had appeared before .Tariq Abbas Qureshi D.W.2 in order to prove innocence of Shakeel Ahmad appellant. This D.W. Deposed before the trial Court that only one accused was present at the time of occurrence who exchange firing with the Policy Party.
' As to recoveries, learned counsel submits that the crime empties were taken into possession from the spot on the day of occurrence, that is, 4-11-2001 while Shakeel Ahmad appellant was arrested in this case on 13-11-2001 and he while in custody allegedly got recovered a pistol on 19-11-2001 but the crime empties were sent to the office of the Fire-Arms Expert on 20-11-2001, that is, after recovery of pistol, so such a recovery loses its significance.
' Learned counsel for Jabar Hussain appellant submits that he was not named in the F.I.R., he was arrested in this case when he was already in custody in connection with some theft case; the identification parade held in this case was doubtful as the witnesses of the parade were the Police Officials of same Police Station where the instant murder case was registered so the possibility their having been shown to the P.Ws. Cannot be ruled out; in the F.I.R., one accused person was shown to be unknown while in the supplementary statement which was allegedly recorded on the same day, two accused were shown as unknown which shows the anxiety on the part of the prosecution to falsely involve as many as persons as can be; on the same set of evidence Faisal a co-accused of the appellant has been acquitted and that the defence version of Jabar Hussain appellant is more probable and nearer to the truth as compared to the version of the prosecution.
It has been concluded by learned counsel that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
6. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and supports the judgment of trial Court. He submits that it was a case of promptly lodged FIR.; Shakeel appellant was named in the F.I.R. While Jabar appellant was identified during the identification parade; ocular account is fully corroborated by medical evidence and the positive report of the Fire-Arms Expert and that Asmat Ullah, the complainant being an injured witness his testimony cannot be brushed aside.
7. We have heard learned counsel for the parties and have gone through the prosecution evidence with their able assistance. According to the prosecution, the occurrence had taken place at 9-15 a.m. On 4-11-2001 while the matter was reported to the Police not in the Police Station but at Civil Hospital at 11-10 a.m. On the same day though the distance between the place of occurrence and the Police Station was 1 kilometre. The complainant in this case is Asmat Ullah FC while the other P.W. Produced by the prosecution is Khadim Hussain 'H.C. Admittedly, the occurrence had taken place in a thickly-populated area surrounded by houses and shops but neither any person from the locality was either cited or produced by the prosecution to prove its case. In the F.I.R., only Shakeel Ahmad and Imtiaz Sohail were named in the FIR., while one was stated to be as unknown.
According to statement of Asmat Ullah which is complaint Exh.P.M., he alongwith Khadim Hussain H.C. And Muhammad Riaz A.S.-I. Deceased armed with pistols in plain clothes were present at BBC Chowk Fateh Garh for checking security arrangements, they received spy information that Imtiaz Sohail a nominated accused of case F.I.R. No,557 dated 27-10-2001 for an offence under section 392, P.P.C. Alongwith Shakeel Ahmad was present in a street of Mohallah Hajipura in order to commit some crime. It has not come on record that Shakeel Ahmad appellant had any connection in the nature of friendship, class-fellow, caste-fellow or was involved in any case with his co- accused Imtiaz Sohail. They had no common intention. It was Imtiaz Sohail appellant who was to be arrested being a nominated accused in a case under section 392, P.P.C. Shakeel Ahmad who according to prosecution had raised lalkara and fired two shots on the persons of the deceased was not required in any case, so there was no fun for him to fire at Muhammad Riaz, A.S.-I., the deceased in the instant case. Then two accused were named in the F.I.R. While the third was shown to be unknown but in the supplementary statement which allegedly was recorded an the same day, two persons were shown as unknown. This shows the anxiety on the part of the prosecution to falsely implicate as many as persons it can. The very important fact in this case is the statement of Asmat Ullah, the complainant. Some portion of his cross-examination occurring at page 47 of the paper book may be reproduced. The same reads as under:-- "It is correct that I am the complainant of a case F.I.R. No,442 dated 9-11-2000 under sections 302/324/353/34, P.P.C., Police Station Hajipura, Sialkot and the deceased of the said case was Zulfiqar Ali. It is correct that said deceased was Khalazad of Wan ul Haq, Inspector/S.H.O. The Investigating Officer of this case. It is correct that accused Shakeel accused present in the Court was charged under section 109, P.P.C. In the said case".
' Inspector Irfan ul Haq, the Investigating Officer of the present case appeared as P.W.19. He admitted before the trial Court that Shakeel Ahmad was involved in the murder case of his Khalazad for abetting the offence under section 109, P.P.C. Both the eye-witnesses namely Asmat Ullah and Khadim Hussain, the Police Officials were subordinate to Irfan ul Haq, Inspector/S.H.O.
There is bright possibility that Irfan ul Haq Inspector/S.H.O. Being revengeful towards Shakeel Ahmad, appellant have directed his subordinates to falsely implicate Shakeel and the major role of opening the firing was attributed to him and this is the reason that no person from the public was either cited or produced by the prosecution to prove its case.
' According to F.I.R., two shots were fired by Shakeel Ahmad, appellant. He opened the attack and the shots fired by him hit on the face of Muhammad Riaz A.S.-I. Then Imtiaz Sohail, appellant fired shots which hit on the head and left shoulder of the deceased and thereafter all the three accused fired on the person of Muhammad Riaz which hit different parts of body of the deceased. It means that at least 7/8 shots were fired at the person of the deceased but there are five injuries on his person. All the injuries are either on the head, face or chest, that is upper part of body of the deceased. The accused according to prosecution were armed with automatic weapons and the injuries on the person of the deceased could have been caused by one spray of the bullets. It is settled law that when there are two possibilities of an incident occurring in the case, the one which goes in favor of the accused has to be given preference. Merely because of the fact that Asmat Ullah the complainant was injured, it cannot be said with certainty that he told the whole truth. The injuries on the person of Asmat Ullah, the complainant, according, to the statement of Dr. Shabbir Hussain Jangua (P.W.13) were superficial and simple in nature and that the patient was stable and conscious and his general condition was satisfactory.
' The concurrence had taken place on 4-11-2001. Shakeel Ahmad, appellant was arrested in this case on 13-11-2001 and the pistol on this pointation was recovered on 19-11-2001. The crime empties were sent to the office of the Fire-Arms Expert on 20-11-2001. It seems that after plantation of the pistol upon Shakeel appellant, the empties were prepared and then sent to the Fire-Arms Expert. No reliance can be placed upon the said recoveries.
' It was the case of the prosecution that the complainant alongwith Khadim Hussain and Muhammad Riaz, A.S.-I. (now deceased) were on official duty to check the security arrangements.
Asmat Ullah, the complainant himself produced before Irfan ul Haq, Inspector/ S.H.O./Investigating Officer his blood-stained clothes consisting of Qameez, Shalwar and Bunyan which were taken into possession vide memo. Exh.P.F. If the complainant, the deceased and the eye-witness Khadim Hussain were on official duty they must have been in Police uniform and not in plain clothes. This also casts/doubt upon the veracity of the prosecution story.
' What we gather from the above discussion is that there is no independent corroboration to the statements of the eye-witnesses either through recovery or motive. Merely on the basis that the deceased had fire-arm injuries and the complainant was also injured would not be sufficient to maintain conviction against the appellants in the instant case and only medical evidence cannot be taken into consideration without any other independent corroboration. The appellant Shakeel Ahmad in his defence produced Tariq Abbas Qureshi, Additional S.P., who stated before the trial Court that 18 persons appeared before him to prove innocence of Shakeel Ahmad and they also sworn affidavits to that effect. This witness admitted in cross-examination that he did not give finding of innocence or guilt against Shakeel Ahmad, the appellant.
' For all that has been discussed above, we are of the considered opinion that the motive having been disbelieved qua Shakeel Ahmad, appellant and so the recoveries and also dishonest improvements on the part of the complainant Asmat Ullah in his supplementary statement by stating in the F.I.R. That there was only one unknown person and in the supplementary statement mentioning two unknown persons, recovery of the plain clothes of the deceased and the injured witness when they were allegedly on official duty, the personal vendetta of Wan ul Haq, Inspector/S.H.O./Investigating Officer, the defence has been able to I create dents in the prosecution story and the benefit of dents has to be extended to an accused not as a grace but as a matter of right, so while extending the said benefits doubt, we accept the appeal filed by Shakeel Ahmad, convict appellant, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. His death sentence is not confirmed. Murder Reference is replied in the negative. Shakeel Ahmad appellant is in jail. He shall be released forthwith, if not required to be detained in any other case.
' Now, we take up the case of Jabar Hussain appellant. He was not named in the F.1.R. On the same evidence, Faisal who too was not, named in-the F.I.R. Was acquitted by the trial Court. In the F.I.R., one person was named as unknown while in the supplementary statement, two persons were stated to be unknown. The identification parade had got no value in the instant case so far as Jabar appellant is concerned because both the witnesses of the parade are Police Officials having been posted in the same Police Station where the F.I.R. Was recorded. Further, Jabar Hussain appellant was already in custody in some theft case with other Police and he was got shifted to Police Station Hajipura so there is all possibility that he must have been shown to the witnesses. In these circumstances, the possibility of false implication of Jabar Hussain appellant in the instant case cannot be ruled out. So while giving the benefit of doubt, we acquit him of the charge, set aside the conviction and sentence recorded against him by the trial Court and acquit him of the charge. This appellant is also in jail. He shall be released forthwith, if hot required to be detained in any other case.