STATE Versus MUHAMMAD ARSHAD AMIN

JUSTICE SAAD SAOOD JAN (CHAIRMAN).‑‑ ‑The respondents together with two other persons, namely, Fawad Siddiq and Muhammad Sohail alias Mochha, were tried by the Special Court for Speedy Trials, Lahore, presided over by a Judge of the Lahore High Court, on charges under section 120‑B, 302 and 304 (four counts), read with section 149 and section 148, Pakistan Penal Code. The learned Special Court acquitted the respondents but convicted Fawad Siddiq and Muhammad Sohail alias Mochha. .Subsequently, Fawad Siddiq and Muhammad Sohail alias Mochha entered into a compromise with the complainant party and in pursuance thereof they were acquitted by the Supreme Appellate Court by its judgment dated 12‑12‑1992. However that may be, the State has preferred this appeal against the acquittal of the respondents.

2. The Muslim Students Federation had two factions in Lahore: One was headed by Arshad Amin, respondent, and the other was led by Muhammad Abid Chaudhry, deceased. According to the prosecution, the faction of Arshad Amin felt that in the presence of the deceased, it could not fully dominate the Federation. On 15‑6‑1991 a meeting was held by the faction of Arshad Amin in the hostel of Diyal Singh College which was attended amongst others by the respondents. It was decided at the meeting that the deceased should be liquidated.

3. The deceased was involved in more than two dozens of criminal tees. Some of these were pending in the Anti‑Terrorist Court at Lahore. On 26‑6‑1991‑he attended the Court in connection with one of the cases pending against him. He informed the Court that he was fearing for his life and that he should be given police protection. The Court declined to assist him, observing that he should approach the Provincial Government in this regard.

4. The prosecution further alleged that on the same day after attending the Court he started for his house in a borrowed car. Fee was followed in other car by his brother Muhammad Qasim P.W.18 and his friends, Abdul Qayyum and Abbas Ali (P.W. 19). At about 10‑35 a.m. as he was taking a U‑turn near the Lahore Gymkhana, Fawad Siddiq and Muhammad Sohail alias Machha, co‑convicts, and Pervaiz alias Haji, Muhammad Ilyas Gujar and Mushtaq Ahmad alias Mushtaqi, respondent, together with a number of other persons stood up from behind a car which was parked in the street leading to WAPDA colony. They were all armed with Klashnikovs. As the deceased passed by them they shouted that they had come to kill him. Immediately thereafter Muhammad Ilyas Gujar and Muhammad Sohail alias Mochha fired it the deceased who was hit in the head and neck. Mushtaq Ahmad alias Mushtaqi, Pervaiz alias Haji and Fawad Siddiq and their companions too opened fire at the deceased. As a result not only the deceased but some other persons present in the vicinity, namely, Amjad Mushtaq P.W.21, Constable Talib Hussain P.W.20, Zafar Iqbal and Atnaas Ahmad were injured. The deceased died at the spot.

5. On learning about the occurrence Inspector Mumtaz Ali, Station House Officer, Police Station Race Course reached the scene of occurrence. He recorded the statement of Muhammad Qasim P.W. 18 at 11‑25 a.m. On the basis of this statement a case was registered at Police Station Race Course on the same day at 11‑45 a.m.

6. At the trial, the respondents denied that they were responsible for causing the death of. the deceased or injuring four other persons. They alleged that they had been falsely implicated. They produced a number of witnesses in their defence.

7. It was not the case of the prosecution at the trial that Arshad Amin, Javed Iqbal and Arif Chaudhry, respondents, were present at the time when the deceased was fired at. On the other hand, criminal liability was imputed to them on the basis that they were part of the criminal conspiracy which was hatched to eliminate the, deceased. In support of this part of its case the prosecution relied mainly upon the testimony of Abdul Latif P.W.

25. The learned trial Court did not find his evidence reliable. As a result, it acquitted these three respondents.

8. As regards the actual occurrence, the prosecution examined four eye witnesses, namely, Muhammad Oasim P.W. 18, Abbas Ali P.W. 19, Talib Hussain P.W. 20 and Amjad Mushtaq P.W.

21. The learned trial Court was of the view that Muhammad Qasim P.W. 18 and Abbas Ali P.W. 19 were inimical and interested witnesses; Amjad Mushtaq P.W. 21 too was not a disinterested witness; however, Constable‑ Talib Hussain P.W. 20 was an independent witness and his statement lent sufficient corroboration to the testimony of the other eye‑witnesses. Further, it was of the opinion that the ocular account stood .confirmed by the medical evidence and the police record prepared immediately after the occurrence. Nevertheless, it did consider it fit to record the conviction of the accused except Fawad Siddiq and Muhammad Sohail alias Mochha on that evidence. As regards Mushtaq Ahmad alias Mushtaqi and Pervaiz alias Haji and Muhammad Ilyas Gujar, respondents, it observed:

"Mushtaq and Pervaiz accused were originally described as Mushtaqi and Haji and even the full particulars of the former were not gathered till he was arrested by C.I.A. Staff Narowal in some other case. ' Both are not students nor connected with M.S.F. Similarly Ilyas Gujjar accused is neither a student nor connected with M.S.F. They do not figure at all in the first version with the police contained in inquest report (Exh.PB). So the charge against Mushtaq and Pervaiz also cannot be said to be proved beyond any reasonable doubt. As against Ilyas Gujar as well the complainant, Abbas Ali' and Amjad Mushtaq (P.Ws. 18, 19 and 21) also cannot be believed unless there is corroboration but no corroboration of any sort against him is forthcoming on the record. He also therefore, deserves the benefit of doubt."

Consequently, out of the eight persons put on trial it acquitted six and convicted only two.

9. The law relating the appeals against acquittal has been summarised by the Supreme Court in the case of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11). Briefly stated, a Court would not interfere with a judgment of acquittal merely because on re‑appraisal of the evidence it comes to a conclusion different from that of the court which has acquitted the accused provided both the conclusions are reasonably possible; thus, before the appellate court decides to reverse a judgment of acquittal it must be satisfied that the findings recorded in a judgment under appeal were perverse or could not be recorded on the evidence before it. We have kept these principles in view while hearing the appeal preferred by the State against the acquittal of the respondents. '

10. So far as the charge of conspiracy is concerned it is founded mainly on the evidence of Abdul Latif (P.W. 25). He stated that on 15‑6‑1991 he was taken by Sohail Mochha and Umer Farooq (who absconded after the occurrence) to a room in the hostel of Diyal Singh College, Lahore. He saw Arshad Amin, Javed Iqbal, Arif Chaudhry, Farad Siddiq, Muhammad Ilyas Gujar, Mushtaq Ahmad alias Mushtaqi and Pervaiz alias Haji present in the room. He deposed:

"Javaid Iqbal was telling that he and Arshad (Amin) were going to Court arrest and the deceased be finished. Arshad Amin also stated that they were going to 'be arrested and that Abid Chaudhry be murdered. All the other present agreed with the suggestion."

Now, this witness has shown himself to. be an entirely unreliable person. Before the trial he swore two affidavits. In the first affidavit (Exh. D) he made averments similar to what he stated in Court. In the second affidavit (Exh. DQ) he stated:

He was confronted with both these affidavits at the trial. From his second affidavit it would appear that he was not a witness to what transpired in the room. It is therefore difficult to rely upon his statement with regard to the conspiracy hatched in the hostel room. Apart from his testimony there is no other direct evidence with regard to the alleged conspiracy. Learned counsel appearing for the State referred to the fears which the deceased had expressed on the day of occurrence to the Anti‑Terrorist Court about the threat to his life and contended that this fact supported the allegation with regard to .the existence of the criminal conspiracy to kill him. It is difficult to accept this contention. The deceased did not give details of the quarters or quarter from which he had received the threat or the source from which he had learnt about the same. Admittedly, there were two factions of the Muslim Students Federation and these two factions had been at loggerheads with each other for a long time. It seems unlikely that the persons who had hatched the conspiracy would be alerting the deceased with regard to their designs against him. Apart from that, he was not a man of mild disposition for, at the time of his death he had been involved in as many as 27 criminal cases. He must have made a large number of crimes. The threat to his life could have come from any quarter. In the circumstances, the trial Court does not appear to have erred in not accepting the story of the prosecution with regard to the conspiracy allegedly hatched by Arshad Amin, Javed Iqbal, Arif Chaudhry, respondents, and others. Their acquittal by the trial Court therefore does not suffer from any error.

11. Of the four eye‑witnesses examined by the prosecution Constable Talib Hussain P.W.20 has not implicated any of the respondents. He too was injured at the time of the occurrence. His presence at the spot at the relevant time does not admit of any doubt. He stated:

"I could not identify any of the persons firing. Even now I cannot identify any one of them. The person in the case died in the, very car due to injuries."

His statement could therefore hardly help the prosecution in establishing its case against the respondents. As regards, Amjad Mushtaq P.W. 21, another eye‑witness, the learned trial Court was right in holding that he was an unreliable witness. Before the police his position appeared to be that he was not acquainted either with the deceased or with his assailants. However, at the trial he claimed that he not only knew the deceased who was his Mohalledar but also that the respondents were known to him. He was duly confronted with the position adopted by him before the police and he had no satisfactory explanation to offer for his change of stance. The remaining two eye‑witnesses, namely, Muhammad Qasim P.W.18 and Abbas Ali P.W. 19, were found by the trial Court to be inimical and interested. The learned counsel for the State did not challenge these observations of the learned trial Court.

12. It appears that the first version of the complainant party was different from the one which later found mention in the first information report. This will so appear from the inquest report prepared by Inspector Mumtaz Ali. It begins:

In this version the persons who fired at the deceased were named as Muhammad Sohail Mochha, Umer Farooq, Arif Chaudhry, Fawad Siddiq and Abdul Jabbar it does not include the names of Muhammad Ilyas Gujar, Mushtaq Ahmad alias Mushtaqi and Pervaiz alias Haji, respondents. It mentions Arif Chaudhry as one of the persons who fired at the deceased. In the first information report no such role has been ascribed to Arif Chaudhry and all that has been said is that he participated in the conspiracy earlier hatched by the respondents. Inspector Mumtaz Ali was duly confronted with the inquest report. He had no satisfactory explanation why the version recorded therein was different from that given in the first information report. All that he stated was that some of the names given in the inquest report were `figments' of his imagination. Quite clearly this was a dishonest explanation. Apparently, for reasons not appearing on the record, the first version was discarded by the complainant party and another version was fabricated for incorporation in the first information report. It hardly need be added that the non‑mentioning of the names of Muhammad Ilyas Gujar, Mushtaq Ahmad alias Mushtaqi and Pervaiz alias Haji, respondents, in the fast version makes the case of the prosecution against them doubtful.

13. For the reasons stated above, we find that the eye‑witness account in this case does not emanate from sources which can be described as reliable. The first version of the complainant party as recorded in the inquest report militates against the assertion that Pervaiz alias Haji, Muhammad Ilyas Gujar and Mushtaq Ahmad alias Mushtaqi, respondents, had taken part in the firing on the deceased. There is no satisfactory corroboration of the ocular testimony. The evidence relating to the conspiracy is again not satisfactory. In the circumstances, we are unable to hold that the trial Court erred in any way in acquitting the respondents of the charges against them. This appeal is without any merit and is hereby dismissed.

N.H.Q/113/SAC Appeal dismissed.