' ASIF SAEED KHAN KHOSA, J.--- Liaqat Ali alias Kakka and Khalid alias Naju appellants were convicted for an offence under sections 302(b)/109, P.P.C. By the learned Judge, Anti-Terrorism Court No, II, Gujranwala vide judgment, dated 18-7-2002 and were sentenced to death each on eight counts and to pay a sum of Rs, 2,00,000 each on each count to the heirs of the respective deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months on each count. The appellants were also convicted for an offence under section 7(a) of the Anti-Terrorism Act, 1997 and were sentenced to death each on eight counts and a fine of Rs,2,00,000 each or in default of payment thereof to undergo imprisonment for one year each. The appellants were further convicted for an offence under section 324, P.P.C. And were sentenced to rigorous imprisonment for seven years each and a fine of Rs,1,00,000 each or in default of payment thereof to undergo simple imprisonment for six months each. The fine, if realized, was ordered to be distributed equally among the three injured victims in this case. Through the same judgment five co-accused of the present appellants namely Muhammad Akram, Ata Ullah , Asif alias Boota, Khalid son of Abdul Rashid and Muhammad Zafar were acquitted by the learned trial Court. Three co-accused in this case namely Abdul Akram alias Faiz, Billu and Javed son of Hassan had been declared as proclaimed offenders in this case and, thus, their case was separated from that of their co-accused. Liaqat Ali alias Kakka and Khalid alias Naju appellants have challenged their convictions and sentences before this Court through Criminal Appeal No, 1306 of 2002 and the State has assailed the acquittal of the above mentioned five accused persons through Criminal Appeal No, 1305 of 2002. We have heard both these appeals together alongwith Murder Reference No,97-T of 2002 seeking confirmation of the sentences of death passed against the convicts-appellants by the learned trial Court. We propose to decide all these matters together through the present consolidated judgment.
2. The necessary facts giving rise to the present appeals .And the connected Murder Reference are that at about 4.15 p.m. On 19-4-2001 as many as eight persons had allegedly been done to death and three others were injured by the appellants and some of their co-accused inside the Dera of Muhammad Nasir complainant in village Goralla situated within the atea of Police Station, Wahndu, District Gujranwala and F.I.R. No,49 was registered in that regard at the said police station at 5-10 p.m. On the same day, i,e, 19-4-2001 at the instance of Muhammad Nasir complainant for offences under sections 148/302/324/149/109, P.P.C. During the investigation sections 6/7 of the Anti- Terrorism Act, 1997 were added to the F.I.R. It was alleged in the F.I.R. That the said bloodbath had taken place with the abetment of Asif alias Boota, Khalid son of Abdul Rasheed, Allah Ditta and Muhammad Muzaffar accused. The motive set up in the F.I.R. Was that on 26-5-2000 Muhammad Nasir complainant's servant namely Imtiaz had been murdered and injuries had been caused to four other persons by Liaqat Ali alias Kakka appellant and others and a criminal case in that regard was pending which was being perused by the complainant party against the appellants and their co-accused.
3. The details of the investigations carried out in this case as well as of the evidence produced by the prosecution and the defence before the learned trial Court are available in the impugned judgment passed by the learned trial Court as well as in the paper-book printed by the Office of this Court and, therefore, the present judgment may not be unduly burdened with a reproduction thereof.
4. We have heard the learned counsel for the appellants and the learned Assistant Advocate- General appearing on.Behalf of the State and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned Assistant Advocate-General has maintained that the prosecution had succeeded in establishing the guilt of the appellants and their co-accused to the hilt and, therefore, the appeal filed by the convicts may be dismissed and the acquittal of some of the accused persons recorded by the learned trial Court may be set aside and they may be also convicted and appropriately sentenced.
5. After hearing the learned counsel for the appellants and the learned Assistant Advocate-General appearing for the State and after going through the record of this case with their assistance we have straightaway observed that although the record of this case is voluminous yet the point for determination in this case is quite short and simple. According to the F.I.R. Lodged by Muhammad Nasir complainant (P.W.14) both the convicts-appellants were not only physically present at the scene of the crime at the relevant time and they had allegedly actively participated in the occurrence by resorting to firing at the deceased and the injured witnesses yet the learned trial Court had expressly found the said allegation against the convicts-appellants to be incorrect and at page No,26 of its judgment it had been observed by the learned trial Court that "I am of the considered view that the presence of both these accused at the time of occurrence is not established". We have found it to be rather intriguing to notice that although the prosecution's case against the convicts-appellants was not in respect of abetment yet the learned trial Court had, after disbelieving the said appellants presence and participation in the main occurrence, proceeded to convict and sentence the appellants for abetment. Ihsan Elahi, Moharrir/H.C. (D.W.1) and. Muhammad Sarwar, Record Keeper (D.W.4) had proved the fact before the learned trial Court through the relevant record that at the relevant time the convicts-appellants were in a jail having duly been arrested in connection with another criminal case. The prosecution's case was that the alleged abetment had been provided by Asif alias Boota, Khalid son of Abdul Rasheed and Muhammad Zafar co-accused but the said accused persons had been acquitted by the learned trial Court after disbelieving the statements made by Khaliq Saeed (P.W.8) and Amjad Ali (P.W.9) in that regard. The observations made by the learned trial Court for disbelieving the said prosecution witnesses are to be found at pages Nos.16 and 17 of the impugned judgment passed by the learned trial Court. In these circumstances the reasons prevailing with the learned trial Court for convicting the convicts-appellants for providing behind-the scene abetement, which considerations are to be found at pages Nos.26 and 27 of the impugned judgment passed by the learned trial Court, have been found by us to be nothing but conjectural in nature and based upon nothing but surmises without being grounded in the evidence brought on the record. It may be true that in an appropriate case a Court can reconstruct a story but such reconstruction has to be derived on the basis of inferences deducible from the evidence available on the record but such reconstruction, nay downright invention or innovation, cannot be conjured up on the basis of mere suppositions which unfortunately has been found by, us to be the case in the present case. It may also be relevant to mention here that on the one hand the learned trial Court had convicted the convicts- appellants for abetting their co-accused regarding the murders but on the other hand the learned trial Court had convicted the same convicts-appellants under section 324, P.P.C. For actually causing injuries to the injured witnesses, in this case at the spot. These findings recorded by the learned trial Court were mutually incompatible and destructive of each other. In these circumstances it has become quite clear to us that after having become morally convinced of the appellants involvement in the hole affair the learned trial Court had proceeded to convict them on a hypothesis which was not supported by the evidence available on the record. In this respect the learned trial Court had depicted scant regard for the evidence available on the record and even for its own findings vis-a-vis the prosecution's case against the appellants. In this view of the matter, while appreciating the moral conviction of the learned trial Court, we cannot but disapprove such an approach adopted by the learned trial Court for deciding a criminal case and that too of such a grave nature as the present one. We are, therefore, constrained to observe that in his zeal to convict the appellants against whom he probably felt morally convinced the learned trial Judge (Ch. Muhammad Hussain Maiken) outran his discretion and travelled beyond the record of the case by diving deep into the realm of conjectures little realizing that such an approach ran counter to the ends of justice which he was apparently motivated to foster.
6. As regards the State's appeal against the acquittal of five accused persons we have noticed that the said appeal has not so far even been admitted to regular hearing. After going through the record of this case we have observed that Khaliq Saeed (P.W.8) and Amjad Ali (P.W.9) had rightly been discarded by the learned trial Court vis-a-vis the alleged abetment provided by Asif alias Boota, Khalid son of Abdul Rasheed and Muhammad Zafar accused. Ata Ullah accused had been found even by the Investigating Officer to be innocent and no weapon had been recovered from his custody. The allegation belatedly levelled against Muhammad Akram accused regarding abetment provided by him to his co-accused was asserted by Munir Ashiq (P.W.13) but he had been given a lie in that regard by Muhammad Riaz (D.W.3) with reference to the relevant record. In these circumstances no legitimate exception can be taken by us to the acquittal of the said accused persons by the learned trial Court.
7. For what has been discussed above a conclusion is irresistible that the prosecution had failed to prove its case against Liaqat Ali alias Kakka and Khalid alias Naju appellants beyond reasonable doubt. Criminal Appeal No,1306 of 2002 is, therefore, allowed, the convictions and sentences of the said appellants recorded by the learned trial Court are set aside and the said appellants are acquitted of the charge. They shall be released from the jail forthwith if not required in any Other case.
8. For the reasons recorded above Criminal Appeal No, 1305 of 2002 filed by the State against the acquittal of five accused persons is hereby dismissed.
9. Murder Reference No,97-T of 2002 is answered in the negative and the sentences of death passed by the learned trial Court against Liaqat Ali alias Kakka and Khalid alias Naju appellants are not confirmed.