2003 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.97/T of 2000 filed by Akhiar-ul-Hassan, Qari Abdul Waheed, Saed Akbar Shah, Saed Ghani, Hafiz Muhammad Shahid, Hafiz Muhammad Shafique. Muhammad Saqib, Abdul Ghani, Kamran Zafar, Zafar Ali Khan and Fida Hussain appellants who were convicted and sentenced by Judge, Special Court No.11, Anti-Terrorism, Rawalpindi vide judgment dated 16-3-2000 as under:-- Akhyar-ul-Hassan: Death with further direction to pay Rs. three lacs as compensation and in default to undergo six months' under section 302(b), P.P.C. Qari Abdul Waheed: Imprisonment for life. Said Akbar Shah, Syed Abdul Ghani, Hafiz Muhammad Shafique, Muhammad Saaqb, Abdul Ghani,, Kamran Zafar, Zafar Ali Khan and Fida Hussain. Three years' R.I. and to pay a fine of Rs.5,000 each in default six months' S.I. under section 148, P.P.C. Murder Reference No.747/T of 2000 for confirmation of death sentence or otherwise shall also be replied through this judgment. We also propose to dispose Criminal Revision No.69 of 2000 filed by the complainant for enhancement of sentence of the accused respondents alongwith Criminal Appeal No.268/T of 2000.

2. Occurrence in this case had taken place at 10-30 p.m. on 8-10-1998 at a distance of. 3 furlongs from Police Station City Chakwal while the matter was reported to the police at 12-05 a.m. (midnight) on 9-10-1998 through written complaint Exh.P.A./1 by Kamran Afzal, Assistant Commissioner, Sadar and the formal F.I.R. Exh.P.A. was recorded by a Sub-Inspector.

3. Briefly stated the facts of the case are that the complainant was Assistant Commissioner, Sadar Chakwal. Muhammad Javed alongwith some others moved an application seeking permission to use sound system for having Naat Khawani and Qawali at the shrine of Mai Moazzama Shaheed. On 2-10-1998 the complainant granted permission to use the sound system with the condition that inter deck would be used at low volume and no political or religious speech would be made. On 7-10-1998 Zafar Ali alongwith 16/17 persons and the pupils of Madrassa moved an application that permission should not be granted for Qawali on the shrine of Mai Moazamma because it was against Sharia and that they would not allow the same. In this regard, Qari Abdul Waheed had also made telephonic calls to the complainant. The complainant sent the application of Zafar Ali etc. to Police Station City for legal action. On 8-10-1998 at about 6 p.m., Ch. Muhammad Yousaf D.S.P., Sultan Fayaz Kiani, Magistrate, Akbar Ali, Inspector, Aasim Iftikhar, Inspector, Ghulam Ali, S.-I., Ghulam Mustafa, S.-I., Rehmat Khan, S.-I., Kausar Mahmood, Iftikhar Ahmad, A.S.-I. Talib Hussain, H.C. Muhammad Nawaz, F.C. Muhammad Arshad, F.C., Aamir Hussain, F.C., Irshad Hussain, F.C. alongwith other police officials came at the spot and then narrated all the facts prevailing at the spot to the , Deputy Commissioner who stated that Qazi Mazhar Hussain, Administrator, Madni Mosque had rang him 3 or 4 times that in case of Qawali, there will be disturbance and that Qari Abdul Waheed had also phoned him that in case of Qawali, there will be bad blood. The Deputy Commissioner directed the A.C., complainant that some men' from the administration committee of program be sent to Qazi Mazhar so that matter could be settled amicably through negotiation. So, the complainant sent Seth Abdur Rashid, Ex-Councilor and' Aziz Balam Khan to Qazi Mazhar Hussain. The complainant was also told by Akbar Ali, Inspector S.H.O., City Chakwal that Qari Abdul Waheed and Qazi Zahoor Ahmad had threatened on -telephone that they would not allow holding of the Qawali. At about 10 p.m. Seth Rashid Ahmad and Aziz Balam told the complainant that as it has been settled with Qazi Sahib that Tabla would not be used in the Qawali and the volume of the deck would also he low. The complainant alongwith officials was present at 10-30 when Naat was being recited at the stage. The arrangement of light was there when suddenly men of Qazi Mazhar group armed with fire-arms and Dandas attacked upon the participants of the Mahfil and started breaking with the Lalkaras that they would not allow the Qawali to be recited and no one should go spared. The participants of the Mahfil and the aggressors grappled and in the meantime firing was started by the aggressor group, On the eastern side of the road, the complainant alongwith Sultan Fayaz Magistrate, Ch. Muhammad Yousaf, D.S.P., Akbar Ali. Inspector, Ghulam Ali. S.-I., Rehmat Khan, S.-I. Kausar Mahmood. A.S.-I. was present. From the firing by the aggressor group, one shot hit Ch. Muhammad Yousaf. D.S.P. on his chest. The people while running saved their lives. The injured D.S.P. was shifted to D.H.Q. Hospital and to disburse the aggressors used tear gas, The name of the person who fired at the deceased later on was known to be Hafiz Akhiarul Hassan who was apprehended at the spot alongwith fire-arm. Other people 9 in number were also taken into custody alongwith Dandas which they were carrying. It was also alleged that the attack was opened at the instance of Qazi Mahzar Hussain, Qazi Zahoor and Qari Abdul Waheed.

4. Investigation of the case was taken over by Akhar Ali, Inspector (P. W.21) Akhiar-ul-Hassan accused was arrested at the spot and a pistol P.2 was taken into possession vide memo. Exh.P.D. The revolver taken into custody from Saed Akbar was secured vide memo. Exh.P.U. Zafar Ali also produced .12 bore gun P.9 which was taken into possession vide memo. Exh.P.J. From the spot, Fida Hussain, Kamran Zafar, Muhammad Sahahid, Muhammad Shafique, Saqib. Saed Abdullah and Saed Ghani were taken into custody alongwith Danda vide different recovery memos. Ch. Muhammad Yousaf succumbed to his injury in the hospital, The Investigating Officer then went to hospital, inspected the dead body of deceased prepared inquest report Exh.P.X. and from the spot took into possession the blood-stained earth vide memo. Exh.P.F. Three crime-empties were also taken into possession from the spot vide memo. Exh.P.E. Om 9-10-1998 Qazi Mazhar Hussain and Qari Abdul Waheed were arrested. Akhiar-ul-Hassain and Saed Akbar accused were also got medically examined. On. I 1-10-1998 Nisar Moulvi, Allah Bakhsh, Ibrar Hussain, Shaukat Islam. Matloob Ilussain, Muhammad Abbas, Muhammad Zubair, Nasir Iqbal, Zeeshan Ahmad, Muhammad Sumair. Muhammad Suleman, Sakhawat Hussain. Muhammad Sher, Muhammad Imran. Tahir Siddiqui. Talih Hussain. Muhammad Zubair son of Muhammad Khalid, Ameer Sher. Saleem Khan, Noor-ul-Huda, Abdul Wahid, Taj Nabi and Gul Nawaz accused were arrested. Dur interrogation, on 18-10-1998 Nisar Moulvi got recovered pistol I which was taken into possession vide memo. Exh.P.G. Allah Bakhsh a led to the recovery of pistol P.7 which was secured vide men Exh.P.H. Firstly, incomplete challan was submitted, the supplement, challan was submitted and finally after completion of the investigation all the accused were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced witnesses in all, thereafter, learned D.D.A. tendered in report Chemical Examiner Exh.P.EE., report of Serologist Exh.P.FF., report the F.S.C. Exh.P.GG. and closed the prosecution case, then, I statements of the accused were recorded under section 342, Cr.P.C. which they pleaded innocence and claimed false implication. They al produced in their defence Malik Saee Abdullah, Magistrate as D. W After conclusion except the present eleven appellants, all the remaining accused were acquitted from the charge.

6. Learned counsel for the appellants after having read the entire prosecution evidence and other material available on record submits that so far as motive is concerned, it has come on record that amicable settlement was arrived at between the parties through intervention of the respectable and the local administration and this fact is supported from the statements of Aziz Akhtar Balam and Abdur Rashid P. Ws.9 and respectively, who were the organizer of the function and also admitted Abdul Rauf Khan, Deputy Commissioner, Chakwal examined as P.W. Further submits that even the complainant who was the Assista Commissioner in the F.I.R. did not state that he had seen Akhiar Hassan appellant firing at the deceased. He has also drawn our attend to the statement of Akbar Ali, Inspector P.W.21 who had stated that he did not mention in any case diary that. he had seen Akhiar-ul-Hass, tiring at the deceased. Adds that the other alleged eye-witness name Muhammad Javed was declared hostile. Further adds that the statement Iftikhar Ahmad, A.S.-I. PV.19 is at variance with the statements other police officials. This witness also did not see the appellant committing the murder of the deceased. According to his statement, I came to know later on that fire of the appellant hit the deceased. Learn counsel submits that so far as arrest of appellant Akhiar-ul-Hassan at it spot after the occurrence Alongwith weapon of offence is concerned, the is all fabrication and concoction and the fact of arrest of. the appellant from the spot is contradicted by Saee Abdullah, Magistrate examined D. W.1 when he stated that on 9-10-1998 he was sent to make a raid the Madrassa of Qazi Mazhar and when he reached in a room, there accused was present who was apprehended by the police and he told his name as Akhiar-ul-Hassan and that the said Magistrate had correctly identified the accused before the trial Court. According to the learned counsel, the version of the prosecution that weapons of offence were taken into possession after apprehension of Akhiar-ul-Hassan and others has no legs to stand because had they been taken into possession on the night of occurrence, then how the pistol was got recovered from the house of Qazi Mazhar on the next day. It is submitted by learned counsel for the appellants that there is no mention of crime-empties in the F. I. R. Learned counsel for the appellants submits that so far as conviction and sentence of Qari Abdul Waheed is concerned, there is no evidence on record except the solitary statement of Munir Hussain, F.C. P.W.15 which was to the effect that he had seen Qari Abdul Waheed making telephone calls to people of different institutions to reach at the spot at the scheduled time. Further submits that the witnesses who .had supported the case of the prosecution, they were all subordinates to Ch. Muhammad Yousaf, D.S.P., who was allegedly murdered in this case. Concluding his submissions, learned counsel for the appellants submits that the prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal. Raja Muhammad Anwar, learned counsel for the appellants submits that Akhiar-ul-Hassan appellant is maternal-son of Qari Mazhar Hussain. On the other hand learned counsel for the State opposes the submissions made by learned counsel for the appellants. He submits that all the witnesses who have fully supported the prosecution case had no ill-will or enmity to falsely implicate the appellants and even not a single suggestion was put to any witness. Further submits that P.W.19 Iftikhar Ahmad, A.S.-I. had specifically stated that all the three accused were arrested at the spot alongwith weapons of offence and amongst them Akhiar-ul-Hassan was also there who has been awarded death sentence and the recovery of empties match with the weapon recovered on the pointation of Akhiar-ul-Hassan as per report of the Serologist. Adds that the opinion of the doctor cannot take over the eye-witness account. According to the learned counsel, Munir Hussain, F.C. had no enmity whatsoever against the appellant. He in nutshell supports the judgment of the trial Court. We have heard learned counsel for the parties and have gone through the record. Initially 35 accused were named in the F.I.R. while 24 were acquitted. Akhtar-ul-Hassan has been awarded death sentence while Qari Abdul Waheed has been sentenced to imprisonment for life and the remaining nine accused namely Said Akhar, Syed Abdul Ghani, Hafiz Muhammad Shahid, Hafiz Muhammad Shafique, Muhammad Saqab, Abdul Ghani, Kamran Zafar, Zafar Ali Khan and Fida Hussain were convicted under section 148, P.P.C. and sentenced to 3 years' R.I. Neither the State nor any aggrieved party had filed appeal against the acquittal of 24 accused. The complaint in this case was lodged by Kamran Ali Afzal, Assistant Commissioner examined as P. W .8. He was declared hostile as he did not support the prosecution case. The other eye-witnesses from the public namely Seth Rashid Ahmad arid Aziz Balam Khan examined as A P.Ws.9 and 10, respectively also did not support the prosecution case. Now, in the field there remains the evidence of police officials, namely, Akbar Ali, Inspector, Iftikhar Ahmad, A.S.-I., Ghulam Mustafa, S.-I., Ghulam Ali, A.S.-I. and Kausar Mehmood, A.S.-I. From the evidence of these witnesses it has come on record that firing was made by two groups of attackers coming from different side and at least 25/30 shots were fired at the complainant party but only one tire hit the deceased Muhammad Yousaf, D.S.P. Iftikhar Ahmad, A.S. -I. examined as P.W.19 stated that he came to know later on that fire of Akhiar-ul-Hassan hit the deceased. By implication it is proved that he had not seen with his own eyes that the fire of Akhiar-ul-Hassan hit the deceased. At page 111 of the paper book, this witness had stated that three persons were taken into custody by the police 25/30 yards away from the place of occurrence. It has also come on record that till 12 night nobody was arrested by the Police. Inspector Akbar Ali examined as P.W.21 had admitted that there were two groups of attackers who tired about 25 to 30 shots. He also admitted that he did not mention in any Zimni that it was Akhiar-ul Hassan appellant whose fire hit the deceased. The story of the prosecution at initial stages was that Akhiar-ul -Hassan was apprehended at the spot alongwith the weapon of offence. The appellants in their defence examined Saee Abdullah, Magistrate as D. W.1 who stated that at about morning prayer time on 9-10-1998 he came to know about the murder of Ch. Muhammad Yousaf, D.S.P. and that at about 6-30 a.m., the Assistant Commissioner, Chakwal brought Qazi Mazhar Hussain accused alongwith him in the police station. He further deposed that he was called by the Deputy Commissioner and other higher officers of the administration to raid the house of Qazi Mazhar Hussain the maternal-grandfather of Akhiar-ul-Hassan where a girl school was being run by the Madni Masjid Institution. This witness deposed that he alongwith one D.S.P, and other police went to the residence of Qazi Mazhar Hussain and in the second room of the school he found a person whose name he came to know later on as Akhiar-ul-Hassan when he was apprehended by the police. This witness identified before the trial Court, the said accused, as Akhiar-ul-Hassan who was arrested on 9-10-1998 from a room of the residence of Qazi Mazhar Hussain. There is no denying the fact that the said Magistrate had retired at the time of making the statement but there is no reason to disbelieve him. His statement has totally shattered the case of the prosecution about the arrest of Akhiar-ul- Hassan at the time of occurrence. It is correct that there .was no enmity between the police officials and the appellants but it is an admitted fact that all the police officials were the subordinates of deceased Ch. Muhammad Yousaf who was a D.S.P They have to toe the line which was stated in the F.I.R. by the complainant who himself did not support the prosecution case though he was A.C. at the time of occurrence and was also present at the place of occurrence for reasons best known. to him and was declared hostile. Dr. Khalid Azadar P.W.14 who medically examined Akhiar-ul Hassan, on 9-10-1998 at 4 p.m. found some blunt weapon injuries which were three in number and the duration of the injuries given was six hours and also as fresh. If one wants to stretch the time from both the sides that can be two hours on- either side. This opinion of the doctor also falsifies the arrest of Akhiar-ul-Hassan on 8-10-1998 at about 1 a.m. (midnight). Had he been arrested at midnight just after the occurrence then the duration must have been 15 to 16 hours. So far as Qari Abdul Waheed convict appellant is concerned, the only evidence against him is that of Munir Hussain, F.C. examined as P.W.15. He deposed that the convict was talking on phone with some persons that some persons should be sent at the place of function. To whom, the convict was making calls, there is no mention and none from the public was produced to corroborate the statement of Munir Hussain, F. C. So far as positive report of the fire-arms is concerned, merely on the basis of positive report of the Fire-arms Expert, neither the conviction can be recorded nor maintained specially when the eye-witness account is disbelieved. It is also important to mention here that at least 50/60 shots were fired as has been admitted by Akbar Ali, Inspector (P. W .21) but only three crime-empties were recovered from the spot. It also creates doubt about the prosecution story. When it has been proved through evidence on record that case of the prosecution against Akhiar-ul-Hassan and Qari Abdul Majid. who have been awarded death sentence and imprisonment for life is of doubtful nature, we feel no hesitation. in taking the same view against the conviction of the appellants who have been awarded 3 years' R.I. with further direction to pay a fine of Rs.5,000 under section 148, P.P.C. After having analyzed the matter critically from all aspects specially the evidence of complainant who was Assistant Commissioner and was present at the place of occurrence but did not support the case of the prosecution before the trial Court, the statements of prosecution witnesses Aziz Akhtar Balam, Seth Abdur Rashid (P.Ws.9 and 10), the statement of doctor who medically examined Akhiar-ul-Hassan convict appellant in particular the duration of injuries given by him, the statement of Javed Iqbal son of Ghulam Hussain examined as P.W.18 who was declared hostile and also the evidence of Iftikhar Ahmad, A.S.-I. P.W.19 when in his examination-in-chief he deposed that out of said firing one shot hit Muhammad Yousaf, D.S.P. and that later on it was learnt that fire of Akhiar-ul-Hassan had hit D.S.P. Muhammad Yousaf, statements of P.W.21 Investigating Officer and that of Saee Abdullah, Magistrate examined as D.W.1 about the arrest of Akhiar-ul-Hassan appellant, we are of the considered view that the prosecution has miserably failed to prove its case against the appellants rather the case of prosecution is full of doubts. The benefit of doubt has to be given to an accused as a matter E of right and not a grace. Applying the said principle of settled law, we accept the appeal filed by the appellants, set aside the conviction and sentence recorded against them and acquit them of the charge. Akhiar-ul -Hassan and Qari Abdul Waheed are in jail and they shall be released forthwith if not required to be detained in any other case. So far as remaining 9 appellants are concerned, they have been released from jail after having served out their full term of sentence as they were never allowed bail after conviction by the trial Court. The death sentence of Akhiar-ul-Hassan convict appellant is not confirmed. Murder Reference is replied in the negative. Criminal Revision No.69 of 2000 and Criminal Appeal No.268/T of 2000 filed by the complainant are dismissed. N.H.Q./A-670/L Appeal accepted.