' KHURSHID ANWAR BHINDER J.--- Kishif Siddique, Asif Siddique and Muhammad Shanque, appellants in Criminal Appeal No,327 of 2007 along with three others were tried by the learned Judge, Anti-Terrorism Court-II, Gujranwala in case F.I.R. No,459 dated 25-11-2002, registered under sections 302/324/427/109/148/149, P. P.0 . Read with section 6/7 of the Anti-Terrorism Act, 1997, at Police Station Sabzi Mandi, Gujranwala, who vide his judgment dated 12-2-2007 convicted Kashif Siddique and Asif Siddique under section 7(a) of the Anti-Terrorism Act, 1997 read with section 302(b), P.P.C. And sentenced them to death for committing murder of Khalid Hamayun and Sarwar deceased with a fine of Rs,2,00,000/- (two lacs) each or in lieu thereof to undergo S.I. For one year's each. The amount of fine if realized was directed to be paid to the legal heirs of the deceased. They were also convicted under section 13 of the Arms Ordinance No,XX, 1965 and sentenced to five years' R.I. Each with a fine of Rs,20,000/- each or in default of payment of fine they shall further undergo two months' S.I. Each. By the same judgment Muhammad Shafique appellant was convicted under section 324, P.P.C. For causing fire shot injury to Aziz Ahmad and sentenced to ten years' R.I. With a fine of Rs,50,000 or in default whereof to further undergo two months' Si. He was also convicted under section 13 of the Arms Ordinance No,XX of 1965 and sentenced to five years'
R.I. With a fine of Rs,20,000/- or in default whereof to further undergo two months' S.I. They were given the benefit of section 382-B, Cr.P.C. And all the sentences awarded to them were ordered to run concurrently. The learned trial Court vide the same judgment acquitted Sabir alias Bhola, Muhammad Shafi and Hafiz Kamal Mustafa from all the charges. Kashif Siddique, Asif Siddique and Muhammad Shafique, convicts have challenged their conviction by filing Criminal Appeal No,327 of 2007, Muhammad Afzal complainant filed two separate appeals, Criminal Appeal No,463 of 2007 against Kashif Siddique, Asif Siddique and Muhammad Shafique for convicting them under sections 148/149/427/449/302(b)/324, P.P.C. And section 7(c) of the Anti-Terrorism Act, 1997, Criminal Appeal No,464 of 2007 was filed against the acquittal of Sabir alias Bhola, Muhammad Shafi and Hafiz Kamal Mustafa whereas the learned trial court has sent Capital Sentence Reference No,17-T of 2007 for confirmation of death sentence of Kashif Siddique and Asif Siddique appellants.
All these matters are being disposed of through this single judgment.
2. Brief facts of the case, registered on the statement of Muhammad Afzal complainant, are that on 25-11-2002, at about 11-45, a.m., he along with Ghulam Muhammad son of Muhammad Sharif and Muhammad Ashraf son of Din Muhammad in his car was going to Dera of Chaudhry Khalid Hamayun at Sheikhupura Road, Gujranwala. Ahead of him Khalid Hamayun was also going to his Dera on his Pajero Jeep Registration No,GAN/1111, driven by Muhammad Sarwar and another Car Honda VTI, Registration No,GAN/35 driven by Mishal. Khan and Aziz Ahmad gunman was also in the front seat of the car. When they reached Sheikhupura Road near Miny Stadium, suddenly Asif Siddique, Saqib Siddique, Kashif Siddique, Tahir Siddique, Faisal Siddique, armed with kalashnikovs, Shafique son of Ata Muhammad, Riaz son of Meraj Din and five unknown accused armed with deadly fire-arm weapons emerged and rounded up vehicles of Khalid Hamayun. Kashif Siddique and Saqib Siddique accused raised Lalkara that Khalid Hamayun be done to death and immediately started firing with their kalashnikovs. Fire shots injured head and flanks of Khalid Hamayun, rest of the accused also started firing on both those vehicles with their respective weapons injuring Muhammad Sarwar, Mishal Khan and one passerby Shahid son of Yousaf who died due to the injuries at the spot. With the firing of the accused persons, Aziz Ahmad, Haroon and Seraj Din also suffered injuries and both the vehicles were destroyed. All the injured were shifted to Civil Hospital, Gujranwala. Three out of them were admitted in the hospital, however, because of serious condition of Khalid Hamayun, he was referred to Lahore for further medical treatment but lie succumbed to the injures on the way. Complainant added that the occurrence was committed by the accused on the abetment of Muhammad Siddique and Mehr Muhammad Saleem. On the same day supplementary statement of the complainant Exh.P.A./1 was recorded and he nominated Hafiz Kamal and Sabir alias Bhola accused that they through mobile phones informed their co- accused about the movement of Khalid Hamayun deceased. According to the complainant the background of the occurrence was that some time ago Kamran Shehzad brother of Asif Siddique and other accused was murdered at the hands of Adnan and others. In respect of said murder Kashif Siddique accused lodged F.I.R. Against Adnan and others including Khalid Hamayun, Tariq Hamayun and their uncle Chaudhry Ishaque. However, Khalid Hamayun and Chaudhry Ishaque were released on bail. Due to the said grudge the accused committed the aforementioned occurrence.
3. After submission of the challan, the charge was framed by the learned trial court against the accused persons to which they did not plead guilty, upon which the prosecution to prove its case examined as many as 28 witnesses in all.
4. Masood Ahmad Bhatti, Draftsman who prepared the site plan of the place of occurrence Exh.P.A.
Appeared as P.W.1. Muhammad Riaz A.S.-I., P.W.2, drafted formal F.I.R. Exh.P.B.. Naveed Abbas Constable P.W.3 transmitted four sealed parcels of blood-stained earth and one sealed parcel containing crime empties to the office of Chemical Examiner and Forensic Science Laboratory, Lahore. Akbar Ali Constable P.W.4 escorted the dead body of Shahid deceased to the mortuary and after post-mortem examination produced last-worn clothes of the deceased before the Investigating. Officer, handed over to him by the doctor, which the Investigating Officer took into his possession vide memo Exh.P.C. He is also the witness of taking into possession detail of mobile phone calls by the Investigating Officer through recovery memo Exh.P.D. Muhammad Iqbal P.W.5 escorted the dead body of Mishal Khan deceased to the mortuary and after post-mortem examination produced before the Investigating. Officer last-worn clothes of the deceased, given to him by the doctor, which the Investigating Officer took into his possession vide memo Exh.P.E. This witness also transmitted three sealed parcels containing kalashnikov to the office of Forensic Science Laboratory, Lahore. Munir Ahmad Constable P.W.6 escorted the dead body of Khalid Hamayun deceased to the mortuary for port-mortem examination and produced before the Investigating Officer last-worn clothes of the deceased, given to him by the doctor, which the Investigating Officer took into his possession vide memo Exh.P.F. Muhammad Arshad Headconstable P.W.7 deposed about the safe custody of sealed parcels containing kalashnikov in the Malkhana of the police station. Aziz Ahmad constable P.W.8 transmitted the sealed parcel containing kalashnikov in the office_ of Forensic Science Laboratory, Lahore. Sajjad Ahmad P. W.9 deposed about the safe custody of sealed parcels of blood-stained earth and kalashnikovs in the Malkhana of the police station. Muhammad Ilyas A.S.-I. P,W.10 appeared to depose about the execution of non-bailable warrants of arrest and proclamations against the proclaimed offenders.
5. On 25-11-2002 Dr. Zahid Hussain P.W.11 at 3-00 p.m. Medically examined Haroon son of Hafeez and found the following injuries on his person:---
(1) Fire-arm lacerated wound with inverted margins, 1 c.m. x 1 c.m. x going deep on lower of left side of abdomen.
(2) Fire-arm lacerated wound with everted margins 1 1/2 c.m. x 1 '/2 c.m. On middle of left buttock.
' According to the doctor all the injures were fresh and caused by fire-arm weapon. Hik/s4LR is Exh.P.G.
' On the same day the same doctor medically examined Muhammad Amin and found the following injury on his person:---
(1) Fire-arm lacerated wound 1 c.m. x 1 c.m. x going deep with inverted margins on left thigh middle inner part. According to the doctor the injury was fresh and caused by firearm weapon. Exh.P.H. Is the MLR.
The same doctor on the same day medically examined Aziz Ahmad and found the following injury on his person:---
(1) Fire-arm lacerated wound 6 c.m. x 4 c.m. x going deep on left foot, upper part on middle of dorsum.
' According to the doctor, injury was fresh and caused by fire-arm weapon. Exh.P.J, is the MLR.
' Dr. Iftikhar Hussain, who conducted post-mortem examination on the dead body of Mashal Khan deceased on 25-11-2002 at 11-15 p.m. Appeared as P.W.12 and found the following injuries on his person:---
(1) A lacerated wound with inverted margins, injury of entry 1 c.m. Circular going deep on front of left ear, 2 c.m. Front from the tragus of ear.
(2) A lacerated wound 4.5 c.m. x 1.5 c.m. With everted margins, exit from the injury No,1, on right side 5f face 2 c.m. Above and outer to right eye, brain was coming out from the wound.
' In the opinion of the doctor death occurred due to injury to vital organs i,e, brain leading to cessation of cardio-respiratory system, consequent upon injuries Nos.1 and 2 which was sufficient to cause death in the ordinary course of nature. Both the injuries were ante-mortem and caused by fire-arm weapon. The probable time between the injuries and death was immediate whereas between death and post-mortem examination was 12 to 24 hours. Exh.P.K. Is the post-mortem report whereas Exh.PK/1 is the sketch of injuries.
' On the same day at 12 O'clock (midnight) the same doctor conducted the post-mortem examination on the dead body of Shahid deceased and found the following injuries on his person:-
(1) Lacerated wound 1.5 c.m. x 1.5 cm, circular, with inverted margins, on front and outer part of left upper thigh, 10 c.m. Below the inguinal ligament (wound of entry).
(2) Lacerated wound 2 c.m. x 1.5 c.m. With everted margins, on inner, extreme upper part of left thigh. It is a wound of exit from injury No,1.
(3) Lacerated wound of 1 c.m. x 1 c.m., inverted margins, on the back of right middle thigh, wound of entry.
(4) Lacerated wound 1 c.m. x 1 c.In. With everted margins, on back of right inner thigh, 5 c.m. From injury No,3.
' According to the doctor, death occurred from haemorrhage shock due to major vascular injuries i,e, left femoral artery and vein, consequent upon injuries Nos.1 and 2, injuries Nos.3 and 4, were nonfatal and muscle deep. All the injuries were ante-mortem, injuries No,1 and 2 were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm weapon. The probable time that elapsed between injuries and death was within three hours whereas time between death and post-mortem examination was within 6 to 12 hours. Exh. PL is the post-mortem examination report whereas Exh.PL/1 is the sketch of injuries.
' On the same day at R.45 p.m. Dr. Capt. Muhammad Khalid, P.W.13 conducted post-mortem examination on the dead body of Khalid Hamayun deceased and found the following injuries on his person:---
(1) A fire-arm lacerated wound of entry 4 c.m. x 3 c.m. Going deep, on left front of head 4 c.m.
Above from left eye-brow.
(2) A fire-arm lacerated wound of entry 3 c.m. x 1.5 c.m. Going deep on outer aspect of left lower chest 12 c.m. Above from left iliac crest.
' In the opinion of the doctor injury No,1 was sufficient to cause death due to its location causing extensive damage to brains parts as a whole, blood vessels in the brain. Consequent upon severe irreversible shock. Death of the injured in specific course of time. Injury No,2 was dangerous but not fatal in nature. All injuries were ante-mortem, homicidal, caused by fire-arm weapon. The duration in between injuries and death was within two hours whereas duration between death and post- mortem examination was within 10 hours. Exh.P.M. Is the postmortem report while Exh.P.M./1 and Exh.P.M./2 are the sketches of injuries.
' On the same day the same doctor at 10-00 p.m. Conducted postmortem examination on the dead body of Muhammad Sarwar deceased and found the following injuries on his person:-
(1) A fire-arm lacerated wound of entry 6 c.m. x 2 c.m. x going deep on right side of head, 6 c.m.
From right ear.
(2) A fire-arm lacerated wound of exit 8 c.m. x 4 c.m. On left side of head, 5 c.m. From left ear, with brain matter, protruding out from the wound.
' According to the doctor injuries Nos.1 and 2 damaged to skull, brain and blood vessels. This resulted into drastic damage of brain (severe head injury), external and internal haemorrhage, leading to severe irreversible shock and immediate death of injured person. The injuries were ante mortem and homicidal and caused by fire-arm weapon. The duration between injuries and death was immediate whereas between death and post-mortem examination was within 12 to 24 hours.
Exh.P.N. Is the copy of the post-mortem report and Exh.PN/1 and Exh.PN/2 are sketches of injuries.
6. Amjad Pervaiz Constable P.W.14 escorted the dead body of Muhammad Sarwar deceased to the mortuary for post-mortem examination and produced before the Investigating Officer last-worn clothes of the deceased, given to him by the doctor and the Investigating Officer took the same into his possession vide memo Exh.P.P. Muhammad Rehan P.W.15 deposed about the presence of the accused on the day of occurrence near the place of occurrence at Riaz Metal Works, Muslim Road, Gujranwala at about 11-00 a.m. Armed with kalashnikovs and used Telephone No,220376 for about 15 to 20 minutes and after they left the factory P.W. Heard fire reports and that Kashif accused along with Ills brothers and his companions committed murder of Khalid Hamayun and his companions. Muhammad Anwar P.W.16.Is the witness of collecting blood-stained earth by the Investigating Officer from four places where the deceased fell after receiving injuries which were secured by the Investigation Officer vide memos. Exh.P.Q. Exh.P.Q./3. He is also the witness of collection of crime empties vide recovery memo Exh.P.R. And taking into possession of Pajero Jeep vide recovery memo Exh.P.S. And car vide recovery memo Exh.P.T. Sheraz Ahmad P. W.17 is the witness of recovery of kalashnikovs taken into possession by the Investigating Officer vide memos.
Exh.P.U. And Exh.P.V. Recovered at the instance of Kashif Siddique and Shafique accused. Zahid Mehmood P. W.18 is the witness of recovery memo Exh.P.W. Of the kalashnikov recovered at the instance of Asif Siddique accused. Mehr Muhammad Babar P. W.19 is the witness of conspiracy to commit the occurrence of murder of Khalid Hamayun hatched between the accused. Irfan Ahmad Sindhu, Special Judicial Magistrate P.W.20 conducted identification parade proceedings of Muhammad Shafi accused within the premises of Central Jail Gujranwala on 16-1-2003 and in this respect he prepared a report Exh.P.X. Muhammad Akram P.W.21 deposed that Sabir Butt accused provided information to his co-accused through mobile phone in respect of movement of Khalid Hamayun deceased on the day of occurrence at 11-30 a.m. From Malik Travels Adda near Mosque one Minar Wali Sheikhupura Road, Gujranwala. Muklitar Ahmad P.W.22 and Haji Mushtaque P.W.23 deposed that Haji Muhammad Siddique proclaimed offender abetted his co-accused to commit murder of Khalid Hamayun to take revenge of murder of Khurram Shehzad on 23-11-2002 through telephonic conversation. Muhammad Afzal complainant appeared as P.W.24 and reiterated the contents of the F.I.R. While Aziz Ahmad P.W.25, injured eye-witness supported his version.
7. Muhammad Nawaz S.-I. P.W.26 and Ejaz Hussain P.W.27 investigated the case. Shaukat Ali, S.-I.
Who chalked out F.I.R. No,469 under section 13 of the Arms Ordinance No,XX, 1965 Exh.P.W.28/1, appeared as P.W.28.
S. After conclusion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. Kashif Siddique, accused in reply to a question that why this case against you and why the P.Ws. Have deposed against him stated that Khalid Hamayun deceased was his cousin and running different business and he was also influential political figure in the city. His sister Uzma was married to Asif Siddique co-accused but unfortunately marital tie ended with divorce which created abnormal relations between the two families. On 14-1-2002, Khurram Shehzad his brother was murdered and in this respect F.I.R. No,16 of 2002 was registered at Police Station Sabzi Mandi against Khalid Hamayun deceased, his father, brother and others. Khalid Hamayun deceased had many other enemies and one of them committed his murder but in order to pressurize him and his family to effect compromise in murder of Khurram Shehzad complainant falsely roped him in this case. Kashif accused also took plea of alibi that on 13-11-2002 he through Passport No,KA-111299 Visa No,2525580 went to Iran through Taftan Check Post Balochistan. He returned back on 9-12- 2002 and was illegally taken to Gujranwala due to the influence of family of Khalid Hamayun deceased and involved as accused in this case. Accused also tendered in his defence copy of F.I.R.
No,305 of 1991 registered at Police Station Sabzi Mandi as Exh.D.A., certified copy of F.I.R. No,384 of 1992 Police Station Saddar Gujranwala as Exh.D.K., certified copy of F.I.R. No,1250/1999 Police Station Sabzi Mandi, Gujranwala Exh.D.L., certified copy of F.I.R. No,16 of 2002 Police Station Saddar Gujranwala Exh.D.L./A, certified copy of challan report in case F.I.R. No,761 of 1999 Police Station Model Town Exh.D.N., certified copy of F.I.R. No,761 of 1999 Police Station Model Town Exh.D.N./1, certified copy of application moved by Abdul Hafeez, Muhammad Sheraz and Muhammad Umar accused in case F.I.R. Ne.761 of 1.999 Police Station Model Town, Gujranwala under section 249-A, Cr.P.C. Exh.D.N./2, certified copy of application moved as criminal miscellaneous application under sections 22-A and 22-B of Cr.P.C. In the court of Sessions Judge, Gujranwala by his wife Mst. Saima Kashif Exh.D.P. And certified copy of reply of Inspector/S.H.O. Police Station Sabzi Mandi, Gujranwala Exh.D.P./1.
9. Asif Siddique accused who is brother of Kashif Siddique accused also made similar statement while reply to the aforesaid question. He also narrated the same facts as were stated by his brother Kashif Siddique accused in respect of plea of alibi.
10. Shafique accused while replying to the same question took the plea that he has been involved in the case due to previous emnity as his nephew Khurram Shehzad was murdered and he was eye-witness of the occurrence against Khalid Hamayun deceased, his brother and father in said murder case. He also stated that he was arrested from Karachi and falsely implicated by the complainant in this case being real Chacha of co-accused.
11. Muhammad Shafi accused stated in answer to the aforesaid question that he being Numberdar of his Chak No,642 Tehsil Jaranwala District Faisalabad arranged sureties for his co-accused in this case who were also involved in criminal case, registered at Police Station Saddar Faisalabad because of his close relations with in-laws of Shaukat Ali. He further stated that he has been roped in this case falsely and that he was not present at the alleged time of occurrence and he did not participate in this occurrence. He also produced copy of Rapat No,20 of Roznamcha dated 2-12- 2002, Police Station Saddar Faisalabad Exh.D.U., application for verification of Numberdari dated 2- 6-2003 Exh.D.V., certified copies of F.I.Rs, Nos.891, 892 and 893 date4 15-9-2002 Police Station Saddar Faisalabad Exh.D.W./1, Exh.D.W./2 and certified copies of surety bonds Exh.D.Y., Exh.D.Y. /1 and Exh.D.Y./2 in his defence.
12. Sabir alias Bhola accused while replying to the aforesaid question stated that Haji Muhammad Siddique absconding co-accused was President of Anjaman-e-Arhatian, Fruit and Sabzi Mandi, Gujranwala in the year 2002 and he was Incharge of Security Guard and was very close to Haji Muhammad Siddique. The accused further deposed that Khalid Hamayun deceased was Behnoi of complainant, Muhammad A fzal and also Tayazad of complainant. The complainant not only falsely involved whole family of Haji Muhammad Siddique but also involved falsely his close workers in this case. He was arrested in this case on 28-11-2002, when he was attending Qul ceremony of deceased Khalid Hamayun whereas his arrest was dishonestly shown dated 22-12- 2002. He further stated that he never led to the recovery of Mobile Phone No,0300-6402449 from his house and recovery is fake. He also stated that there were two recovery witnesses, namely, Saeed and Shaukat but both of them have not been examined before the court and they were given up by the prosecution. The only witness of reccee, namely, Muhammad Akram is resident of Qila Didar Singh and closely related to complainant party and that he has deposed cn the instance of complainant. He further stated that he never used the said mobile phone and that he has been falsely implicated in this case by the complainant due to influence.
13. Hafiz Kamal Mustafa accused while replying to the same question stater that he was running a Khokha Shop in Sabzi Mandi Gujranwala under Haji Muhammad Siddique his co-accused who was President of Anjaman-e-Arhatian, Fruit and Sabzi Mandi Gujranwala and has been falsely involved in this case by the complainant being close worker of Haji Muhammad Siddique co-accused. He further stated that he in fact was arrested by Muhammad Nawaz Sub-Inspector on 3-12-2002 from his house but malafidely shown his arrest dated 22-12-2002. He denied the recovery of Mobile Phone No,0300-6420822 and motorcycle and stated that these were fake and fictitious recoveries planted on him. He added that recovery witnesses cited against him have not been examined by the prosecution. He claimed himself to be innocent.
14. The accused, in their defence, examined as many as five witnesses. Javed Garsheen D.S.P./C.I.A.
Appeared as D.W.1 and produced photocopies of Rapat No,7 dated 11-12-2002 and Rapat No,11 dated 15-12-2002, pertaining to Police Station Branch, Quetta, written by Azam Headconstable Exh.D.W.1/A and Exh.D.W.1/B. He stated that he, on the direction of S.S.P., Quetta that accused of Gujranwala were with Levies and custody of both Kashif and Asif accused, one after other with interval of 2/3 days were handed over to the Inspector of Gujranwala Police, namely, Tahir Majeed and Sadiq along with documents. Muhammad Nadeem Inspector/S.H.O. Police Station Crime Branch, Quetta appeared as D.W.2 and stated that Rapat No,7 dated 11-2-2002 about handing over of Kashif accused and Rapat No,11 dated 15-12-2002 about handing over of Asif accused were destroyed in compliance with orders of S.S.P. Quetta and produced Exh.D.W.2/A, copy of compliance report of said order as Exh.D.W.2/B and a certificate in respect cf destruction of the record as Exh.D.W.2/C. Walayat Hussain, Sub-Inspector F.I.A., Quetta Chaman appeared as D.W.3 and stated that on 13-11-2002 he was posted as Incharge, Check Post, Check Post Taftan Immigration Post and on the same day Kashif and Asif accused crossed border to Iran. He further stated that on 12-9-2002 Kashif accused returned and was handed over by his staff to Levies and on 12-12-2002 Asif accused also returned to Pakistan and he was also handed over to Levies by his staff. He also stated that he never saw both the accused and their passports, however, from the record the number of passport of Asif accused is KB147294 and that of Kashif accused is KA111299.
He further stated that at the time of handing over both the accused he was not present and said proceedings were completed by his subordinates, Munir A.S.-I. And entries in the record were also made by same subordinate. He also stated that both these accused were handed over to Levies on telephonic instructions of S.S.P. Quetta. Munir Ahmad Sub-Inspector appeared as D.WA and stated that on 13-11-2002 when he was posted as A.S.-I. At Taftan Immigration Check Post both the accused Kashif and Asif came and he checked their passports and visas and after observing them made entries in the relevant register to go to Iran. He also stated that on 9-12-2002 he received instructions of S.S.P., Crime Branch Quetta to check the record in respect of exit of both these accused to Iran and directed that on their return they should be produced before him. He further stated that on the same day at about 12-00/12-30 noon Kashif accused returned from Iran and Mubashir Headconstable brought Kashif accused along with his passport. He contacted S.S.P.
Quetta through telephone and received instructions that the accused be handed over to Levies as he was required by Gujranwala police and he handed over Kashif accused to Levies along with his passport and letter. He further stated that on 12-12-2002 Asif accused also returned to Pakistan and in the same manner he was also handed over to Levies. Said witness also identified both the accused in the court along with their passports and stated that both were stamped by him at Taftan Check Post. He placed on record copies of documents. As Exh.D.W.4/A. Mubashir Ahmad A.S.-I,, F.I.A. Appeared as D.W.5 and stated that on 9-12-2002 Kashif accused returned from Iran and was retained and handed over to Levies and on 12-12-2002 Asif accused also returned from Iran and was also handed over to Levies and he made entry in the record which he produced before the trial court as Exh. DW. 5/A-2.
15. After conclusion of the trial and hearing the learned counsel for the parties, the learned trial court vide judgment dated 26-9-2005, convicted Kashif Siddique and Asif Siddique under section 7(a) of the Anti-Terrorism Act, 1997 for committing murders of Khalid Hamayun and Sarwar deceased and sentenced them to death with a fine of Rs,2,00,000 (two lacs) each or in default thereof to undergo one year S.I. Each. The fine if realized was directed to be paid to the legal heirs of both the deceased. They were further convicted under section 13 of the Arms Ordinance, 1965 and sentenced to five years' R.I. With a fine of Rs,20,000 (twenty thousand) each or in lieu thereof to further undergo two months' S.I. Each. By the same judgment, the learned trial court convicted Muhammad Shafiq for causing fire shot injuries to Aziz Ahmad and sentenced to ten years' R.I. With a fine of Rs,50,000 (Fifty thousand) or in default whereof to further undergo two months' S.1. He was given the benefit under section 382-B, Cr.P.C. He was also convicted under section 13 of the Arms Ordinance, 1965 and sentenced to five years' R.I. With a fine of Rs,20,000 (twenty thousand) or in lieu thereof to further undergo two months' S.I. The sentences awarded to Muhammad Shafiq were ordered to run concurrently.
16. After conviction, the convicts/appellants filed Criminal Appeal No,1654 of 2005 before this Court challenging their conviction while Muhammad Afzal complainant filed Criminal Appeal No,1653 of 2005 against the acquittal of Muhammad Shafi etc. Whereas the learned trial court made a reference i,e, Capital Sentence Reference No,26-T/2005 seeking confirmation of death sentence awarded to Kashif Siddique and Asif Siddique. This Court vide judgment dated 11-12-2006, accepted Criminal Appeal No,1654 Of 2005, set aside the impugned judgment and remanded the case back to the learned trial court with the direction to decide the same afresh within sixty days.
Criminal Appeal No,1653 of 2005 was also disposed of in terms of the above order and the reference was answered in the negative.
17. After remand, the learned trial Court vide judgment dated 12-2-2007 convicted and sentenced the appellants as mentioned in paragraph No,1 of this judgment.
18. Mian Farrukh Aftab, learned counsel for the appellants Kashif Siddique and Asif Siddique submits that the presence of the complainant at the place of occurrence is highly doubtful. The complainant stated in his statement that he reached the place of occurrence by chance and witnessed the occurrence from 25/30 feet. He has also stated that he has serious enmity with accused persons who after committing the occurrence fled away from the occurrence by passing nearby him but they did not cause any injury to the complainant. Since the complainant was not present at the place of occurrence, therefore, the conviction on capital charges cannot be sustained on the sole statement of Aziz Ahmad injured P.W. Without any corroboration from an independent source. His statement is also contradictory to the other prosecution evidence. He was not able to see the occurrence from the place where he was allegedly present at the time of occurrence. His injury was not possible at the durson of his foot wniie he was sitting in the car following Pajero Jeep of Khalid Hamayun, deceased and his foot wear was also not produced by the prosecution either before the Investigating Officer or during evidence before the Court. Both the eye-witnesses are related to the deceased, as such, they are interested witnesses and no reliance could be placed on their statements for convicting the appellants. He further submits that Khalid Hamayun deceased was having previous enmity with many people and he was also involved in murder case of Khurram Shahzad, deceased brother of Kashif and Asif accused. From the motive part of the story of the occurrence, it is clear that the accused have been involved in this case in order to compel them to effect compromise in the murder case of Khurram Shahzad. Learned counsel also submits that recovery of weapon from the appellants is also highly doubtful as no independent witness was associated by the police in the recovery proceedings and the same was effected from an open place of the house, as such, the recoveries are defective and carry no evidentiary value. No person from the locality from where the recoveries of weapons were effected joined the alleged recovery proceedings which is clear-cut violation of section 103, Cr.P.C. The empties recovered from the spot were sent to the Forensic Science Laboratory on 12-12-2002, after the arrest of Kashif appellant which casts doubt on the prosecution version. He further submits that the arrest of the accused at Gujranwala is also suspicious as the prosecution has badly failed to prove their arrest at Gujranwala and the prosecution withheld the best possible evidence and the appellants proved that they were not in the country at the time of occurrence through the statements of D.W.1 to D.W.5, as such, the prosecution has badly failed to prove its version rather defence plea on this aspect of the case is fully proved on the basis of evidence. He further submits that the F.I.R. Was delayed and was lodged after deliberations and preliminary investigation at the spot.
' Learned counsel also argued that Kashif and Asif accused went to Iran on 1341-2002 on valid passports and visas and they returned on 9-12-2002 and 12-12-2002, as such, they were not present in Pakistan at the time of occurrence and they raised their plea of alibi before the Investigating Officer at the time of their arrest.
19. Learned counsel for Muhammad Shafique, appellant submits that no specific role was attributed to Muhammad Snafique in the F.I.R. He was arrested after ten month of the cccurrence from Karachi. He has only been attributed injury to Aziz Alunad P.W. The learned counsel tried to establish that the injury on the person of Aziz Ahmad injured P.W. Is not attributed to Muhammad Shafique while referring to the statement of Muhammad Rehan P.W.15 wherein he stated in categorical terms as under:--- "I had not seen the injured at the place of occurrence. I did not come to know, if someone was injured at the place of occurrence. I do not know the names of the persons, who told me about the occurrence, I did not try to meet any relative of Khalid Hamayun, deceased at the place of occurrence nor I had seen there any relative of Khalid Hamayun, deceased at the place of occurrence at that time."
' On the basis of aforesaid statement of P.W.15, learned counsel argued that since according to the aforesaid witness no person was injured, therefore, conviction recorded by the learned trial court against Muhammad Shafique has no legs to stand, as such, he be acquitted of the charge.
20. Mr. Munir Ahmad Bhatti, learned counsel for the complainant submits the F.I.R. Was lodged promptly without deliberations and consultations. The complainant is not a chance witness as he goes to the Fruit Market daily on the way on which the incident took place. He also submits that the ocular account is supported by the medical evidence as Khalid Hamayun deceased received two injuries and Mishal Khan deceased also received two injuries. The statement of the complainant was corroborated by the statement of injured P.W. Appellant resorted to indiscriminate firing by which Pajero Jeep and Honda Car VTI were totally smashed. Presence of the injured P.W. Is not doubtful and is corroborated by the medical evidence as he was immediately examined by the doctor. His statement under section 161, Cr,P.C. Was recorded by the Investigating Officer immediately after the occurrence and the injured P.W. Is not related to the deceased. He further submits that crime empties recovered from the place of occurrence were sent to the Forensic Science Laboratory on the same day. He also argued that no defence evidence was produced by the accused before the Investigating Officer and the photographs were changed by the expert on the Passports of Asif and Kashif accused. The accused Asif and Kashif were not produced before the Magistrate at Quetta wherefrom they were allegedly arrested, therefore, no reliance could be placed on the defence evidence. The eye-witnesses are natural, independent and true witnesses and the defence failed to shatter their testimonies. The presence of P.W.25, the injured at the time and place of occurrence cannot be doubted for the reason that he sustained injury during the occurrence which was corroborated by the medical evidence and it was not opined by the doctor that the injury sustained by him was self-suffered. Learned counsel also argued that charge against the accused was also framed under sections 7(a) and 7(c) of the Anti-Terrorism Act, 1997, they should also be convicted and sentenced separately. He also argued that Sabir alias Bhola, Muhammad Shafi and Hafiz Kamal Mustafa were illegally acquitted by the learned trial court. There was ample evidence against them to connect them with the commission of offence, as such, they be also convicted and sentenced in accordance with law as they were also the members of unlawful assembly and facilitated other co-accused through mobile phones by informing them the movement of Khalid Hamayun deceased and the learned trial court has failed to take into account phone details Exh. P D /1-14.
' Sardar Mashkoor Ahmad learned Special Prosecutor-General for the State has supported the impugned judgment.
21. We have heard the learned counsel for the appellants, learned counsel for the complainant as well as the learned Special Prosecutor-General for the State and have also perused the record. The impugned judgment has been perused with care and caution. The entire evidence has been thrashed out with the assistance of the learned counsel for the parties. The prosecution to prove its case examined two eye-witnesses, namely, Muhammad Afzal, the complainant as P.W.24 and Aziz Ahmad injured P.W.25. Both have narrated the manner in which the occurrence took place and are unanimous in their statements. Aziz Ahmad P.W.25 while supporting the version of Muhammad Afzal complainant narrated that fire shot made by Kashif accused hit on the forehead of Khalid Hamayun and fire shot made by Saqib (proclaimed offender) hit the deceased on his left flank. Fire shot made by Asif accused hit on head of Sarwar driver, fire shot made by Tahir Siddique (proclaimed offender) hit on temporal bone of Mashal Khan, fire shot made by Faisal (proclaimed offender) hit on left thigh of Shahid deceased and the fire shot made by Shafique accused with his kalashnikov hit on left foot of Aziz Ahmad. He also stated that fire shot of Riaz (proclaimed offender) also hit on right buttock of Shahid deceased and thereafter indiscriminate firing was made by all the accused which caused injuries to Haroon Hafeez and Muhammad Amin. Statements of both the eye-witnesses are fully supported by each other and inspire confidence as they are truthful and natural witnesses of the occurrence. Presence of Aziz Ahmad P.W. Cannot be doubted as he suffered injury during the occurrence and he proved his injury through medical evidence. The presence of the Complainant at the time and place of occurrence is also natural. The defence cross-examined both these witnesses at length spreading over 53 pages but could not shatter their statements. The statement of Muhammad Rehan P.W.15 is also of great importance. He is an independent witness having no relations with either of the parties. He deposed that few moments before the occurrence he met the accused while armed with deadly fire-arms in Riaz Metal factory where he was working as an employee. The accused remained there for some time and made telephone calls and immediately after their leaving the factory he heard fire report and that Khalid Hamayun has been murdered along with his companions, at the hands of the accused. The defence badly failed to create doubt in his statement despite the lengthy cross-examination. From the above analysis it is crystal clear that the prosecution through ocular account has proved its case beyond any shadow of reasonable doubt against the accused-appellants.
22. We have also examined the evidence of recoveries with care and caution out of which recovery of crime empties from the spot is of much significance. To prove recoveries of crime empties prosecution examined Muhammad Nawaz P.W.26 who deposed that he collected crime empties from the spot and took the same into his possession vide memo Exh.P.R. Muhammad Anwar P. W.16 supported the statement of aforesaid witness about the collection of crime empties from the place of occurrence which were sent to the Forensic Science Laboratory through Naveed Abbas constable P.W.3 who stated that the sealed parcel containing crime empties was deposited by him in the said office intact. Even the said parcel remained intact in the Malkhana of the police station as is apparent from the statement of Sajjad Hussain P.W.19. The sealed parcel containing crime empties was deposited in the Forensic Science Laboratory on 12-12-2002 which is much prior to the arrest of the accused persons. The recoveries of weapons of offence from Kashif, Asif and Shafique accused are also proved through the statements of Sheraz Ahmad P.W.17, Zahid Mehmood P.W.l8, Muhammad Afzal P.W.24 and Muhammad Nawaz S.-I. P.W.26. Kashif Siddique accused got recovered kalashnikov from the Almirah in his residential house in the presence of Sheraz Ahmad P.W.17. Muhammad Shafique accused got recovered kalashnikov from the safe of Baithak of his house in the presence of aforesaid witnesses whereas Asif Siddique accused got recovered kalashnikov from a Jesti Petti lying in his Dera. As far as the contention of the learned counsel for the appellants that the recoveries were effected from an open place is concerned, it may be noted that residential house and Dera are never open places, hence the contention of the learned counsel for the appellants that the recoveries were effected from open place, has no force regarding recoveries of weapons of offence. According to the report of Forensic Science Laboratory the crime empties were matched with the weapons recovered from the accused. Thus there is no legal force in the argument of the learned counsel for the appellants that the recovery was effected in violation of section 103, Cr.P.C. As according to law any technical defect committed by the Investigating Officer while effecting recoveries would not annul the whole prosecution evidence.
23. In support of their plea of alibi that on the day of occurrence they were not present in Pakistan rather they had gone to Iran on 13-11-2002, Kashif and Asif accused produced five witnesses in their defence. It appears from the record that both the aforesaid accused did not raise this plea before the Investigating Officer and was raised at the trial after taking legal advice from an expert. It is settled law that when such a specific plea is raised by the accused in their defence, the accused are responsible to prove the said plea by adducing cogent and convincing evidence and they cannot blame the prosecution that it has failed to prove that fact. The defence evidence produced by the accused in support of their plea of alibi is not inspiring confidence because the accused- appellants have failed to produce any evidence to show that where they remained in Iran durin3 the interregnum period and had they remained in Iran during said period they could have proved it by way of some documentary evidence or producing any witness. As against the aforesaid evidence the prosecution has produced Mahr Babar P.W.19, Mukhtar Ahmad P.W.22 and Haji Mushtaq P.W.23 to prove that the accused were present in Gujranwala few days before the occurrence, as such, the accused-appellants have badly failed to prove their plea of alibi. Learned counsel for the appellants has also referred to the hotel bill and photographs taken in Iran as an evidence to the effect that the appellants Kashif and Asif had genuinely entered Iran and were not present at the time and place of occurrence. It is noteworthy that as far as photographs produced by the appellants are concerned, it has no evidentiary value. The hotel bill produced by the appellants is also of no significance as it can very easily be manoeuvered. The plea of alibi of the appellants is also negated from the fact that it is an international immigration policy which is prevalent in almost every country in the world that at the time of entry into a country through air, sea and land, embarkation immigration card is to be filled in by the passenger entering the country which provides all necessary credentials regarding name of the passenger, date of birth, passport number, permanent residential address, name of carrier, length of stay and proposed address. On the basis of embarkation immigration card data so collected by the immigration authorities is preserved on the website in order to know as to who entered the country. Likewise, when the same passenger disembarks he again fills in the disembarkation card providing the same information which is cross checked with reference to the information supplied at the time of entering the port of embarkation and the same record is maintained by the immigration authorities to exactly know the exit of the said passenger. Appellants have not been able to produce any such embarkation card which is an authentic source of information regarding passenger's immigration which has not been produced by the appellants in support of their plea of alibi. Even otherwise, Forensic Science Laboratory where Passports of the appellants were sent, reported (Exh.P.SS.) that the alignment of round seals on the pictures at page 3 of Passports have been disturbed and not exactly round. It appears that photographs on the Passports were changed which fact creates a dent in the defence evidence produced by the appellant in support of their plea of alibi, as such, the defence has failed to prove the plea of alibi.
24. In view of the above discussions we have come to a definite conclusion that the prosecution has proved its case beyond any shadow of doubt against Kashif Siddique, Asif Siddique and Muhammad Shafique and the learned trial court has rightly convicted them.
25. Now coming to the roles of Sabir alias Bhola, Hafiz Kamal Mustafa and Muhammad Shafi, who were acquitted by the learned trial court by giving them the benefit of doubt and the complainant has filed Criminal Appeal No,464 of 2007 against their acquittal, we have examined the whole prosecution evidence with respect to their roles. The allegation against Sabir alias Bhola and Hafiz Kamal Mustafa is that they facilitated the other accused by informing through mobile phones about the movements of Khalid Hamayun deceased. The complainant had not nominated them in the F.I.R. Rather he implicated them through his supplementary statement. There is no evidence against Hafiz Kamal Mustafa in respect of information received by the complainant and passed on to the police. The evidence against Sabir alias Bhola is not inspiring confidence for the reason that the phone details is not a reliable evidence because its scribe or signatory has not been examined by the prosecution. As far as evidence against Muhammad Shafi is concerned, he was not nominated in the F.I.R. By the complainant. Identification parade proceedings (Exh.P.X.) and the statement of Irfan Ahmad Sandhu P.W.20 are not reliable pieces of evidence and no reliance can be placed on it for convicting him, as such, the prosecution has failed to prove case against Sabir alias Bhola, Hafiz Kamal Mustafa and Muhammad Shafi beyond doubt and the learned trial court has rightly acquitted them.
26. Now coming to the quantum of sentence we are of the view that since the prosecution has proved all the charges against the appellants, therefore, the trial court has failed to convict and sentence them on each charge separately for the reason that the offence of terrorism is defined under section 6 of the Anti-Terrorism Act 1997, as an independent offence which is punishable under section 7 of the said Act. Seeking guidance from the law laid down in Muhammad Amin v.
The State 2002 SCM R 1017 we convict and sentence the appellants as under:--- ' Kashif Siddique and Asif Siddique are convicted under! Section 302(b), P.P.C. For committing Qatl- e-Amad of Khalid Hamayun and Sarwar deceased respectively and sentenced them to death with direction to pay Rs,1,00,000 (one lac) each to the legal heirs of each deceased as compensation under section 544-A, Cr.P.C. And in default of payment of compensation, they shall undergo six months' S.1, each.
' Kashif Siddique and Asif Siddique are also convicted under section 7(a) of the Anti-Terrorism Act, 1997 and sentenced them to death with a fine of Rs,1,00,000 (one lac) each or in default of payment of fine to undergo six months' S.I. Each.
' Kashif Siddique and Asif Siddique are further convicted under section 7(d) of the Anti-Terrorism Act, 1997 for causing massive damage to the vehicles of Khalid Hamayun deceased and sentenced to imprisonment for life each with a fine of Rs,1,00,000 each or in default of payment of fine they shall further undergo six months' S.I. Each.
' Kashif Siddique and Asif Siddique are also convicted under sections 427/149, P.P.C. And sentenced to two years' R.I. With a fine of Rs,50,000 each or in default of payment of fine they shall further undergo three months' S.I. Each.
' The sentence under section 13 of the Arms Ordinance No,XX of L 1965 awarded to both the accused Kashif Siddique and Asif Siddique by the learned trial court is maintained.
' Charges against Shafique accused under sections 324/427/149, P.P.C., section 7(c) of the Anti- Terrorism Act, 1997 and section 13 of the Arms Ordinance No,XX of 1965 have been proved by the prosecution, as such, Shafique accused is convicted under section 324, P.P.C. For causing fire shot injury to Aziz Ahmad and sentenced to ten years' R.I. With a fine of Rs,50,000 or in default of payment of fine to further undergo six months' S.I. He is also convicted under section 7(c) of the Anti-Terrorism Act, 1997 for causing grievous bodily harm and injury to Aziz Ahmad and sentenced to imprisonment for life with a fine of Rs,50,000 and in default of payment of fine he shall further undergo six months' S.I. He is also convicted under section 7(d) of the Anti-Terrorism Act 1997 for causing massive damage to the vehicles of Khalid Hamayun deceased and sentenced to imprisonment for life with a fine of Rs,1,00,000 or in default of payment of fine to further undergo six months' S.I. He is further convicted under sections 427/149, P.P.C. And sentenced to two years' R.I.
With a fine of Rs,50,000 and in default of payment of fine to further undergo three months' S.I. The sentence awarded to Shafique accused under section 13 of the Arms Ordinance No,XX of 1965, by the learned trial court is maintained.
' The accused-appellants are given the benefit under section 382-B, Cr.P.C. And the sentences awarded to them shall run concurrently.
27. In view of the above, we dismiss Criminal Appeal Nos.327 of 2007, filed by the convicts, dispose of Criminal Appeals Nos.463 and 464 of 2007, filed by the complainant and answer Capital Sentence Reference No,17-T of 2007 in the affirmative and confirm the death sentence awarded by the learned trial Court to Kashif Siddique and Asif Siddique appellants.