2004 PLP 1411 (MLD)

This judgment will dispose of Crl. Appeal No. 107‑J of 2002 and Crl. Revision No. 1197 of 2002 directed against the judgment dated 16‑4 2002 passed by Ch. Muhammad Hussain Maiken, Judge Anti‑Terrorism Court‑11, Gujranwala, whereby he convicted all three appellants under section 302, P.P.C. and sentenced them to undergo life imprisonment each on two counts as Tazir with further direction to pay Rs.2,00,000 each or in default thereof six months S.I. They were also convicted under section 201, P.P.C. and were sentenced to undergo three years R.I. each with fine of Rs.20,000 each or in default six months S.I. All the sentences were ordered to run concurrently with benefit of section 382‑B, Cr.P.C.

2. Brief facts of the case as narrated by the complainant in the F.I.R. Exh.P.A./1 are that one Muhammad Riaz cousin (Khalazad) of the complainant gave some amount and documents to Muhammad Ramzan alias Jana (since dead) for employment. On 11‑12‑1990 Muhammad Riaz and Khadim Hussain went to the house of Muhammad Ramzan at Eimanabad and demanded the amount and documents back on which hot words exchanged between, them. In the mean time the companions of Muhammad Ramzan namely Zulfiqar, Makhdoom Rasheed, Shahab Din, Javaid Iqbal and Muhammad Tufail, armed with different weapons came there, Muhammad Ramzan alias Jana, Zulfiqar and Makhdoom Rasheed fired with their weapons at Muhammad Riaz and Khadim Hussain who received grievous injuries. Thereafter, Shahab Din, Javaid Iqbal and Muhammad Tufail cut both the deceased into pieces and put the same on fire and then threw their bones in upper Chenab Canal. As per F.I.R., the occurrence was witnessed by Abdul Majeed and Abdul Qayyum, P.Ws. The complainant stated that he had been searching for Muhammad Riaz and Khadim Hussain deceased and also took "Qasim Niyan" from their opponents. After a long gap the accused due to differences arisen between them, made extra judicial confession before Ch. Jalil Ahmad and Muhammad Ashiq P.Ws.

3. After getting information about the occurrence the local, police completed all the necessary formalities and thereafter Tariq Mahmood S.I. was entrusted the investigation of this case who alongwith his subordinates proceeded to the spot on 16‑12‑2000 and on 17‑12‑2000 he prepared the site‑plan, Exh.P.B. He also made arrest of Shahab Din and recorded the statements of the P.Ws. under section 161, Cr.P.C. Thereafter investigation of the instant case was entrusted to Manzoor Ahmad Inspector who got warrants of arrest of all the remaining accused and ultimately he initiated the proceeding under section 87, Cr.P.C. against them. He submitted incomplete challan in the Court and thereafter he arrested Javaid Iqbal and declared him innocent during investigation. On 25‑4‑2001, he also arrested Zulfiqar accused and sent him to Jail. On 29‑7‑2001 Muhammad Iqbal Inspector/S.H.O. arrested Muhammad Tufail and sent him to the Judicial Lock‑up. He submitted the supplementary challan to the Court. Makhdoom Rasheed accused is still at large and. his case has been separated from the accused under section 512, Cr.P.C. Only Shahab Din; Zulfiqar Ali, Javaid Iqbal and Muhammad Tufail accused were charge‑sheeted.

4. Prosecution in order to prove its case has produced as many as 8 witnesses including eye‑witnesses, Investigating Officers, witnesses of extra judicial confession and other formal witnesses. After giving up Ashiq and Muhammad Iqbal A.S.‑I. being unnecessary. learned P.P. closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded their innocence. The learned trial Court after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties, convicted and sentenced the appellants as mentioned above. Hence this appeal.

5. Learned counsel for all the appellants submits that occurrence had taken place on 11‑12‑1990 while the F.I.R. was lodged on 16‑12‑2000, that the two eye‑witnesses namely Abdul Majeed and Abdul Qayyum, P. W.1 and P. W.2 did not‑ inform the police for 10 years. Even P.W.1 told this occurrence to the complainant who is not an eye‑witness, one year after the occurrence, that P.W.1 is also not the resident of the place of occurrence. He also admits his enmity with the accused party. P.W.2 Abdul Qayyum had stated before the learned trial Court that he told about the said occurrence 9/10 years after the occurrence. He also admits his enmity with the appellants.

6. Learned counsel further submits that Muhammad Jalil P.W.3 who is witness of extra judicial confession about Muhammad Ramzan accused (since dead) and Javaid Iqbal (acquitted accused) had stated that he was told by the above‑said two accused persons seven years after the occurrence about the occurrence and even he did not state this fact to the police thereafter, that no recovery of any incriminating article was effected from any of the appellant, that, motive; if any, was against Muhammad Ramzan, who has already died. He submits that one of the accused Makhdoom Rashid is still at large. He adds that as far a statement of Abdullah complainant is concerned, his evidence is based on hearsay. Lastly he submits that in-fact it is a case of no evidence and that the appellants are entitled to acquittal.

7. Learned State Counsel on the other hand submits that fact remains that both the P.Ws. did not narrate or inform the police about the said occurrence but submit that appellants remained absconder for a long time, that it is a corroborative piece of evidence that one of the accused namely Makhdoom Rashid is still absconder.

8. Learned counsel for the complainant Mr. Zafar Iqbal Chohan, who has also filed a Crl. Revision No. 1197 of 2002, submits that eye‑witnesses and the complainant had no reason to falsely implicate the accused persons and this is the reason for the delay in lodging, the F.I.R. He adds that two eye‑witnesses namely Abdul Qayyum and Abdul Majeed infact belong to the accused party and this is the reason that they kept mum for such a long time, that when these two eye witnesses disclosed this fact, investigation was conducted and then the case was registered, that both the eye‑witnesses were cross‑examined by the learned defence counsel but nothing could be brought on the record in favour of the appellants. As the F.I.R. was lodged after 10 years so there was no question of recovery of any incriminating article or the dead body.

9. I have heard the learned counsel for the parties and also have gone through the record available on the file. In all there were five accused, three accused namely Shahab Din, Zulfiqar and Tufail are appellants before this Court. Makhdoom Rashid co‑accused is still at large while Muhammad Ramzan the main accused had died. The occurrence in this case had taken place on 11‑12‑1990 while the matter reported to the police on 16‑12‑2000 by Muhammad Abdullah maternal cousin (Khalazad) of Muhammad Riaz. He is not an eye‑witness in this case. He lodged the F.I.R. on the basis what he was told by Abdul Qayyum and Abdul Majeed P.Ws. There are two deceased persons namely Muhammad Riaz and Khadim Hussain. Both the eye‑witnesses appeared before the police 10 years after the occurrence i.e. after lodging the F.I.R. The distance between the police station and the place of occurrence is 2 Furlongs. It is unimaginable that when two persons had seen the occurrence, according to them, with their own eyes but they remained mum for a long period of 10 years and there is no proper explanation of such a long delay in lodging the F.I.R. Both the eye witnesses admit their enmity with the appellants. As far as Muhammad Jalil who is witness of extra judicial confession concerned, he was against Muhammad Ramzan (since dead) and Javaid Iqbal who has already been acquitted by the learned trial Court. No incriminating article was recovered from any of the accused. In fact it is a case of no evidence. In this view of the matter, while granting benefit of doubt to the appellants, this appeal is accepted and the conviction and sentence awarded to the appellants is hereby set aside. The appellants are behind the bars, they shall be released forthwith if they are not required in any other case. Crl. Revision is dismissed. Any observation made in this judgment will not prejudice the case of Makhdoom Rashid, who is still at large. H.B.T./S-97/L Appeal accepted.