KHALIL AHMAD Versus State

ASIF SAEED KHAN KHOSA, J.--- Khalil Ahmad, Munir Ahmad, Muhammad Hanif, Muhammad Idrees, Muhammad Saleem and Muhammad Ilyas appellants were convicted on two counts of an offence under section 7(a) of the Anti-Terrorism Act, 1997 vide judgment dated 9-8-2003 handed down by the learned Judge, Anti-Terrorism Court-II, Lahore and were sentenced to death each on each count and a fine of Rs.1,00,000 each on each count or in default of payment thereof to undergo rigorous imprisonment for six months each on each count. All the said appellants were also convicted for an offence under 7(h) of the Anti-Terrorism Act, 1997 and were sentenced to rigorous imprisonment for ten years each and a fine of Rs.50,000 each or in default of payment thereof to undergo rigorous imprisonment for six month each. The said appellants were further convicted for an offence under section 148, P.P.C. each and were sentenced to rigorous imprisonment for three years each and a fine of Rs.20,000 each or in default of payment thereof to undergo rigorous imprisonment for four months each. The above mentioned appellants were also convicted for an offence under section 337-L(2), P.P.C. each and were sentenced to rigorous imprisonment for two years each. The said appellants were also ordered by the learned trial Court to pay a sum of Rs.2,00,000 each to the heirs of both the deceased or in default of payment thereof to undergo simple imprisonment for six months each. They were further ordered to pay a sum of Rs.25,000 each to each of the three injured victims or in default of payment thereof to undergo simple imprisonment for six months each. All the sentences of imprisonment passed against the appellants were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. was extended to the appellants. Each of the above mentioned appellants has filed a separate appeal before this Court which appeals have been heard by us along with Murder Reference No.35-T of 2003 seeking confirmation of the sentences of death passed against them by the learned trial Court. We propose to decide all these matters together through the present consolidated judgment.

2. The occurrence in this case had taken place at 2-00 p.m. on 21-6-2002 in Mauza Bhen Dhilwan situated within the area of Police Station Manawan, District Lahore and according to the prosecution's case the present appellants along with their eleven co-accused had launched an assault upon the complainant party inside the village mosque and had committed the murder of Muhammad Ibrahim and his son namely Zafar Ullah in furtherance of an ongoing murder feud between the parties. During the same occurrence three other persons namely Abdul Majeed, Muhammad Shehzad and Lal Din, available inside that mosque at that time, had also received injuries on their persons. No specific injury had been attributed to any, of the appellants their co-accused and the allegations levelled against them were couched in generalized and collective terms. F.I.R. No.178 was lodged in respect of the said incident by Mst. Jamila Bibi complainant, wife of Muhammad Ibrahim deceased and mother of Zafar Ullah deceased, at 5-00 p.m. on the same day, i.e. 21-6-2002 at the spot which was subsequently registered at Police Station Manawan, District Lahore for offences under sections 302/148/149, P.P.C. During the investigation section 324, P.P.C. was added to the F.I.R. As a result of the investigation conducted by the local police all the present appellants were found to be innocent and, resultantly, in the Challan submitted on 10-9-2002 their names were placed in column No.2 thereof.

Dissatisfied with the investigation of the police qua the appellants Mst. Jamila Bibi complainant instituted a private complaint against the present appellants and their co-accused in respect of the same incident on 7-11-2002 and after recording of the preliminary evidence the present appellants and their co-accused were summoned by the learned trial Court to face a trial.

3. At the commencement of the trial the learned trial Court framed a charge with the four heads against the present appellants only as the appellants' co-accused had become fugitives from the law by then and had been declared as Proclaimed Offenders. The appellants pleaded not guilty to the charge and claimed a trial.

4. During the trial the prosecution produced twelve witnesses in support of its case against the appellants. Mst. Jamila Bibi complainant (P.W.7), Muhammad Sharif (P.W.8) and Muhammad Siddique (P.W.9) furnished the ocular account of the incident in question and they also deposed about the motive. The medical evidence was provided by Dr. Maqbool Hussain (P.W.1) and Dr. Muzamal Hussain (P.W.10). The remaining evidence produced by the prosecution was more or less of formal nature. In their statements recorded under section 342, Cr.P.C. the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They unanimously maintained that they were not present at the scene of the crime at the relevant time and that they had been falsely implicated in this case on account of pitched enmity of the complainant party. The appellants did not make statement on oath under section 340(2), Cr.P.C. but they produced five witnesses in their defence. Ch. Muhammad Munir, S.P. (D.W.1) and Shah Nawaz, Inspector (D.W.3) deposed about conducting the investigation of the State case and finding the appellant innocent. Lal' Din (D.W.2), Abdul Majeed (D.W.4) and Muhammad Shehzad (D. W.5) were the injured witnesses who had sustained injuries during the alleged incident and they categorically stated that the assailants causing injuries to them had not been identified by them.

5. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants, were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference before this Court.

6. We have heard the learned counsel for the parties at some length 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 eye-witnesses produced by the prosecution were related and inimical witnesses who had failed to receive any independent corroboration and that the injured witnesses in this case had failed to implicate the appellants in any manner. It has, thus, been submitted 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 counsel for the State has maintained that the eye-witnesses produced by the prosecution were natural witnesses who had consistently deposed against the appellants and that the said witnesses had received ample corroboration from the motive as well as support from the medical evidence. He has gone on to maintain that the prosecution had succeeded in establishing the appellants' guilt to the hilt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court do not warrant any interference by this Court.

7. After hearing the learned counsel for the parties and going through the record we have straightaway observed that in the F.I.R. lodged by Mst. Jamila Bibi complainant (P.W.7), the wife of Muhammad Ibrahim deceased and the mother of Zafar Ullah deceased, she had never claimed that she was herself an eye-witness of the alleged occurrence but in the private complaint instituted by her after about five months of the said occurrence she had claimed that she too had witnessed the occurrence herself. After discussing the statement made by her and the attending circumstances of this case the learned trial Court had arrived at an express conclusion that the presence of Mst. Jamila Bibi complainant (P.W.7) at the spot at the time of the alleged occurrence was not free from doubt in view of this finding and conclusion recorded by the learned trial Court itself the worth and evidentiary value of the statement made by Mst. Jamila Bibi complainant (P.W.7) may not detain us any further.

8. Muhammad Sharif (P.W.8) had appeared before the learned trial Court as an eye-witness of the alleged occurrence. Admittedly the said witness is a son of Muhammad Ibrahim deceased and a brother of Zafar Ullah deceased. He had no stamp of injuries on his person so as to vouchsafe his presence at the spot during incident in issue. His enmity with the accused party was a foregone conclusion inasmuch as he had admitted before the learned trial Court that he was an accused person in the case of murder of a co-accused of the present appellants namely Nisar. Evidence had been brought on the record of this case to establish that at the time of making his statement before the learned trial Court in connection with the present case this witness was a Proclaimed Offender in the case of Nisar co-accused's murder. This related and inimical witness produced by the prosecution as an eye-witness was proved to have been making divergent statement at different occasions regarding participation of the present appellants in the murders in issue. It had been suggested to him during his cross-examination that in his statement recorded under section 161, Cr.P.C. during the investigation of the State case pertaining to these very murders he had never stated about the presence and participation of the present appellants in the alleged occurrence but he had totally denied the making of that statement under section 161, Cr.P.C. He was duly confronted with the said statement which was then brought on the record as Exh.D.A. wherein he had completely failed to mention the present appellants as members of the assaulting party. The appellants had produced Shah Nawaz, Inspector before the learned trial Court as D.W.3 who had clearly maintained that he had truly and correctly recorded the statement of this witness under section 161, Cr.P.C. and Exh.D.A. was the same statement which was made by this witness before him during the investigation of the State case. The veracity and trustworthiness of Muhammad Sharif (P.W.8) qua the present appellants has, thus, been found by us to be utterly unreliable.

9. The only other eye-witnesses produced by the prosecution and left in the field is Muhammad Siddique (P.W.9). This witness is also a son of Muhammad Ibrahim deceased and a brother of Zafar Ullah deceased. He too was not only closely related to the deceased but was also quite inimical towards the appellants. He is also an accused person in the case of murder of Nisar co-accused and he had been produced before the learned trial Court from a jail. His interest in deposing against the appellants is, therefore, not different to contemplate or fathom. The sequence of events and the roles allegedly played by the appellants and their co-accused during the alleged occurrence narrated by him before the learned trial Court were sharply contradictory to those stated by his brother namely Muhammad Sharif (P.W.8). During his cross-examination the learned trial Court had itself recorded an observation that this witness was making a "conscious false statement." This self-condemned liar was, therefore, not worthy of an implicit reliance vis-a-vis the appellants.

10. The discussion made above shows, and shows quite clearly, that both Muhammad Sharif (P.W.8) and Muhammad Siddique (P.W.9) were not only closely related to the deceased but were also quite inimical towards the appellants and both of them had made contradictory statements regarding the sequence of events taking place during the fateful incident and the roles allegedly played by the present appellants and their co-accused during the same and, therefore, we have deemed it prudent to look for independent corroboration before placing a wholehearted reliance upon their statements qua the present appellants in a case of this nature. It may be relevant to mention here that both these eye-witnesses had categorically maintained that a co-accused of the present appellants namely Nisar had actively participated in the present incident taking place at 2-00 p.m. on 21-6-2002 whereas the appellants had produced a copy of F.I.R. No.271 (Exh.D.H.) registered at police station Batapur, District Lahore on 5-9-2002 for offences under sections 302/148/149/201, P.P.C. according to which the said Nisar co-accused had already been murdered by the complainant party of this very case at 1-00 p.m. on 21-6-2002, i.e. one hour prior to the present occurrence. The said criminal case pertaining to the murder of Nisar co-accused is still pending adjudication before the learned trial Court and, therefore, we refrain from commenting upon the same any further but this aspect of the matter has surely put us to further caution regarding the reliability of Muhammad Sharif (P.W.8) and Muhammad Siddique (P.W.9) in the case in hand.

11. It is proverbial that motive in a criminal case is a double-edged weapon which can cut both ways. On the one hand it can provide motivation to the accused party to commit an offence against the complainant party` and on the other hand it can also prompt or propel the complainant party to falsely implicate the accused party so as to get even with it in order to settle an old score. The parties to this case are admittedly locked in an ongoing murder feud and they have been implicating each other in different cases of murder, etc. for quite some time. In that backdrop of pitched enmity between the parties we have found it to be unsafe to consider the motive set up in the case by the prosecution to be providing independent corroboration to the ocular account furnished against the present appellants.

12. There is no denying the fact that no weapon had been recovered from the appellant's possession during the investigation of this case by the local police and, thus, the prosecution has not been able to receive corroboration from any recovery from the appellants.

13. The medical evidence produced in this case was not of much avail to the prosecution as the prosecution had never attributed any specific injury to any of the appellants. Thus, the medical evidence available in this case could not provide any independent support qua the individual appellants so as to confirm his participation in the alleged occurrence.

14. The F.I.R. lodged by the complainant had been recorded at the place of occurrence and not at the police station and this is generally indicative of the fact that the F.I.R. had been recorded after due deliberations and preliminary investigation. The private complaint instituted by Mst. Jamila Bibi complainant had been filed after about five months of the alleged occurrence which too provided sufficient time to the complainant party to falsely implicate anybody who was otherwise inimical towards it. Thus, even on this score the prosecution's case had failed to receive any independent corroboration or confirmation so as to inspire our confidence in the ocular account.

15. We cannot lose sight of the fact that admittedly three persons namely Abdul Majeed, Muhammad Shehzad and Lal Din had also received injuries on their persons during the same occurrence and both Muhammad Sharif (P.W.8) and Muhammad Siddiqui (P.W.9) had admitted before the learned trial Court that the said three injured persons were independent and impartial witnesses. All the said injured witnesses had not been cited by the complainant party as its witnesses and all those injured persons had in fact appeared before the learned trial Court as D.W.4, D.W.5 and D.W.2 respectively and admittedly they had failed to identify or incriminate the present appellants as members of the assailing party. Their statements made before the learned trial Court and their failure to implicate the present appellants in this case has gone a long way in compounding our doubts about the appellants' involvement in the alleged occurrence.

16. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. The above mentioned appeals are, therefore, allowed, the convictions and sentences of all the six appellants recorded by the learned trial Court are set aside and they are acquitted of the charge by extending benefit of doubt to them, They shall be released from the, jail forthwith if not required in any other case.

17. Murder Reference No.35-T of 2003 is answered in the negative and the sentences of death passed against the appellants by the learned trial Court are not confirmed.

N.H.Q./K-32/L Appeal accepted.