1996 P Cr (PLP)

Dates of hearing: 25th, 26th and 28th June, 1995. NAZIR AHMAD BHATTI, C.J.‑‑‑--On 2‑2‑1989 in the morning complainant Muhammad Bashir, Sub‑Eingineer in Irrigation Workshop, Bhalwal had gone to National Bank of Pakistan, Bhalwal to bring the amount of salary of the employees of the Workshop. The salary had to be received from the Bank by Muhammad Rafiq, Sub‑Divisional Officer and the complainant, Muhammad Afzal Dafadar, Clerk Khalid Latif, Accounts Clerk Muhammad Azam and Noor Muhammad retired Head Clerk had to assist Muhammad Rafiq, S.D.O. in this respect. They went to bank on Jeep No.LES‑5142 driven by Muhammad Afzal. They had a wooden box also with them for putting the cash in it. They received the salary amounting to Rs.3,49,000 from the Bank but the aforesaid Muhammad Rafiq did not keep the amount in the box but put it in a cloth bag and . handed it over to Dafadar, Muhammad Afzal. All the employees were coming back to the Workshop on the jeep. When they reached near Fish Farm at about 11‑30 hours they saw a person armed with a klashnikov standing on the left side of the road. The said person was of stout body with a height of 5/6 feet and aged about 25/26 years. He started firing at the complainant party. There was another unknown person standing on the right side, young in age with wheatish complexion and armed with a double‑barrel shot‑gun. The latter also started firing. As a result of firing by both the aforesaid accused Muhammad Aslam, Khalid Latif, Noor Muhammad, Muhammad Afzal and driver Afzal Khan were injured. The jeep stopped and Muhammad Rafiq and the complainant carne outside and took refuge in the nearby field but they were also fired at and Muhammad Rafiq got injured. The firing stopped after some time but the complainant saw a person coming on a motorcycle and both the armed assailants sat on the motorcycle and turned back and disappeared from the place. The complainant went to the jeep and found the amount stolen. He also saw Muhammad Aslam and Khalid Latif lying dead at the spot. On the report of the fire‑shots Abdul Hamid brother of injured Khalid Latif another employee of the Irrigation Department reached the spot. The complainant went to Police Station,' Bhalwal and recorded P.I.R. No.34 at 12‑05 hours.

2. It transpired that the aforesaid 3 culprits had an encounter with the police on the same day as a result of which Naseer one of the assailants was killed on the same day. The other 2 culprits Fayyaz Rasool and Azad Iqbal were arrested by the police and after investigation were sent up for trial before Additional Sessions Judge, Sargodha. Fayyaz Rasool was convicted under section 396, P.P.C. and was sentenced to death and to pay a fine of Rs.50,

000. Accused Azad Iqbal was also convicted under section 396, P.P.C. and was sentenced to undergo life imprisonment. One Fayyaz Rasool had challenged his conviction and sentence by Criminal Appeal No. 139/L of 1991 which was dismissed. His appeal in the Supreme Court of Pakistan was also dismissed. Likewise his review petition before the Supreme Court of Pakistan was also dismissed. It had not come on the record that convict Azad lqbal had ever challenged his conviction and sentence by any appeal.

3. During investigation the present appellants Nisar Ali, Mushtaq Ahmad, Sabir Ali and Muhammad Munir Akhtar were also implicated in the offence and also sent up for trial before the learned Additional Sessions Judge, Sargodha alongwith the aforesaid two accused. The said 4 accused were charged under section 148/149/302/307, P.P.C. and section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The 4 appellants pleaded not guilty to the charges and claimed trial.

4. After the conclusion of the trial the aforesaid 4 appellants were also convicted under section 396, P.P.C. and each of them was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.20,000 each or in default to further undergo rigorous imprisonment for 2 years. The appellants herein, had challenged their conviction and sentence by an appeal in the Lahore High Court, Lahore but the same was returned on 3‑10‑1992 for filing the same before the appropriate Court The appellants then filed the present appeal in this Court on 15‑2‑1993. The impugned judgment was made by the learned Additional Sessions Judge on 7‑5‑1991 and the appeal was filed on 15‑2‑1993. It was time‑barred. However, the appellants had challenged their conviction and sentence before the Lahore High Court and that appeal was within time. They withdrew that appeal from the Lahore High Court on 3‑10‑1992 and then this appeal in hand was filed in this Court on 15‑2‑1993. Although the appeal was time‑barred but since many important legal and actual objections have been raised against the impugned judgment, we had admitted the appeal to regular hearing overruling the objection about limitation. At the time of admission of the appeal a notice for enhancement of the sentence was also served upon the appellants under Revision No.67/L of 1993. The appeal and the aforesaid revision are being disposed of by this single judgment.

5. The State had produced 25 witnesses in proof of the prosecution case whereas the appellants had made depositions under section 342, Cr.P.C. but they neither produced any defence nor made any evidence on oath.

6. At the outset it is to be noted that the F. I. R. was recorded after about 35 minutes of the occurrence by a Sub‑Engineer of the Workshop but it did not disclose the name of any of the appellants as being the assailants or the culprits. The Investigating Officer had stated that he had recorded supplementary statement of the complainant about the role of the appellants in the commission of the offence but neither any such supplementary statement was produced in evidence nor the complainant made any deposition confirming the testimony of the Investigating Officer in this regard. However, during the trial only this much was brought on the record that appellants Nisar Ali, Sabir Ali and Muhammad Munir Akhtar had met the complainant party in the Bank and had asked him whether the salary would be paid to the employees on that day. The aforesaid deposition was made by P.W.15 Muhammad Bashir, P.W.16 complainant Muhammad Rafiq and P.W.17 Muhammad Afzal during the trial.

7. It was also brought in the prosecution evidence that the appellants were also present nearby the place of occurrence at the titre when the offence had taken place. After the arrest of the appellants the Investigating Officer also recovered two bundles of currency notes of the denomination of Rs.50 from each of them at their pointation on. 9‑2‑1989. However, the aforesaid amounts were not recovered from the house of any of the appellants but from some rooms in the Haveli of one Gujjar. It was also alleged that the said recovered currency notes were issued by the Bank on the day of occurrence but no record of the Bank was produced to confirm this contention. Only oral testimony of P.W.22 Muhammad Ishaq Cashier of National Bank of Pakistan was recorded about this allegation.

8. The appellants were employees of the Workshop Generally the salary used to be distributed on 1st of every month. However, in the month of August. 1989 the salary was not drawn on the 1st but it was drawn on the next day and it was natural for the employees to enquire from the administration whether the would receive the salary on that day. It is also an admitted fact that the, appellants were office‑bearers of the Union of the Workshop and they must be E known to every employee of the Workshop but in spite of that their names were not disclosed in the F.I.R. as being either the assailants or the culprits. Since the occurrence had taken place, near the Workshop and firing had been resorted to and admittedly many employees had reached the spot at that time so it was also natural for the appellants to have also reached the spot. As they were office ?bearers of the Union of the employees, it was somewhat obligatory for them to have reached the spot. There existed strong reasons to believe that the appellants had been implicated in the occurrence as an afterthought and most probably to curb their union activities. Evidence had been subsequently fabricated to implicate them in the occurrence. It is also to be noted that the complainant in his testimony as P.W.16 did not implicate appellant Mushtaq Ahmad as being present in the Bank on the day of occurrence.

9. After taking into consideration all the aforesaid circumstances we have come to the conclusion that all the four appellants were falsely implicated subsequently and they had not taken any part in the commission of any offence during the aforesaid occurrence.

10. Consequently the appeal is accepted. The conviction and sentence of all the appellants recorded on 7‑5‑1991 by the Additional Sessions Judge, Sargodha are set aside and they are acquitted of the offence for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other case. As a consequence of acceptance of this appeal the criminal revision petition is dismissed. N.H.Q./1020/FSC?????????????????????????????????????????????????????????????????????????????? Appeal accepted.