' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,47/T of 2004 filed by Muhammad Ayyaz alias Waqar Ahmad, Saif ur Rehman alias Saifi and Abu Bakar alias Nasir, who, along with Sabir Hussain alias Shakeel, Taufique alias Zabi Ullah and Asif Raza Malik faced trial in case F.I.R. No,485, registered at Police Station Taxila, District Rawalpindi, on 9-8-2002 for offences under sections 302/324/120-B/34, P.P.C. Read with sections 4/5 of Explosive Substances Act and section 7 of the Anti-Terrorism Act, before learned Judge, Special Court Anti-Terrorism No,1, Rawalpindi, after conclusion of trial, the learned trial Court vide judgment, dated 20-1-2004 while acquitting rest of the accused, convicted the appellants under section 7(a) of Anti-Terrorism Act, 1997 and sentenced them to death each on four counts with compensation of Rs,1,00,000 each on each counts or in default one year's R.I. Each. The appellants were also sentenced to undergo imprisonment for life on 8 counts, for causing injuries to P.Ws.9 to 14, 30 and 31, with fine of Rs,50,000 each on each counts or in default six months' R.I. The sentences were to run concurrently.
2. Murder Reference No,9!T of 2004 tor confirmation or otherwise of death sentence of appellants and Criminal Appeal No,143 of 2004 filed by the State against acquittal of the respondents therein shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Registered on the statement of Salamat Masih (P.W.29), who was security guard of Mission Hospital, Taxila, are that on the fateful day, he along with Earick Masih was present on duty at Mission Hospital, Taxila, at about 7-45 a.m. It was raining and the people were coming and going in the hospital through main gate as usual. In the meantime three young persons aged about 25/26 years, two of them of the heights of about 5 feet and 5/6 inches white colour, third one of average height, wheatish colour wearing Shalwar Qameez, one of them had tied red colour handkerchief around his neck, entered in the Hospital through the main gate along with other people. The man with average height held on pistol on the complainant and Earick Masih. The remaining two accused on reaching opposite to the footpath leading to the Church, threw one grenade each towards the Church, both of the grenades blasted on the footpath near the Church and caused two ditches. About 23/24 males and females sustained injuries, who were coming out from the Church. On noise of complainant. Earick Masih and other people and hue and cry of the injured the accused fled away from the spot. One of the accused who had thrown grenade was found dead on the footpath of the road outside the Church and one grenade was lying underneath him. It is also mentioned in the F.I.R. That the complainant and Earick Masih can identify the accused. The injured men and women were under treatment in the hospital and one woman Eleshba succumbed to the injuries.
4. After having' conducted investigation by the Investigating Officers the accused were found guilty and report under section 173, Cr.P.C. Was submitted accordingly. The learned trial Court framed charge against the accused, who denied the same and claimed trial. Hence the trial commenced.
During trial the prosecution in order to prove its case produced 33 witnesses in all. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication.
They did not appear as witness under section 340(2), Cr.P.C. However, they produced six D.Ws. In their defence. After conclusion of trial, the learned trial Court convicted and sentenced the appellants as stated above.
7.(sic) After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellants in support of this appeal has contended that nobody was named in the F.I.R., only shaky descriptions of the accused were mentioned therein; that the identification parade was not held according to High Court Rules; that there are material contradictions in the statements of eyewitnesses; that the accused at the time of identification parade were putting fetters; that there is no evidence on record that three accused whose descriptions have been mentioned in the first information report and three who have been identified during identification parade through features are the same; that in the F.I.R. It is mentioned that there were three accused persons but the complainant has improved his version before the trial Court and has enhanced the number of the accused from three to four; that it was not explained that during identification parade the three eye-witnesses identified three accused persons but the other eye-witnesses only identified two accused and they did not state that these were the same persons, who had come in the Church and committed the occurrence; that Fayyaz Razzaq eye-witnesses during identification parade identified only two accused namely Abu Bakar and Muhammad Ayyaz, who were entered in the Church, while the third accused, who had died outside the Church; that at the time of conviction and sentence of appellants it was not clarified that who was present inside the Church and who had met his death outside the Church; that the accused who had met his death outside the Church had received fire-arm injury on the backside of his chest but that fire-arm has not been explained; that on the other hand the story of the prosecution was that the accused had met his death outside the Church due to grenade, which was in his hand and one grenade was found underneath his dead body; that all the deceased and 19 injured P.Ws. Received injuries, which were of the dimension of .05 cm, either the same can be caused by pellets or by bullets and there is no explanation on the part of the prosecution in that regard; that the instant case against the appellants is full of doubts, so they should be granted benefits of doubt; that no documents is available on the file written by the Investigating Officers; and that prima facie it proves the fact that the same were the afterthought and the recovery of pistol and grenade was planted on the appellants. Thus, in view of the above submissions the appellants are entitled to acquittal. In support of his submissions the learned counsel has relied upon AIR 1925 Lahore 426, 1975 PCr.LJ 38, PLD 1981 SC 142, 1985 SCMR 721, 1988 SCMR 557, 1993 SCMR 585, 1995 SCMR 127, PLD 1996 Karachi 246 and 1996 PCr.LJ 1315.
8. Conversely, the learned counsel Assistant Advocate-General submits that there is no enmity between the eye-witnesses and the accused, hence no question of false implication arises; that date, time and place of occurrence have not been denied; that the accused persons had, in fact, created terror by throwing grenade; that the accused persons have been identified in the identification parade; that the recovery of grenade has been effected from the accused; and that it was only Fayyaz Razzaq, who had identified the two accused namely Abu Bakar and Muhammad Ayyaz and had not identified the third accused. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at great length and scanned the entire evidence minutely.
10. In this case the occurrence has taken place on 9-8-2002. The matter was reported to the police through complaint on the same day at 9-20 a.m. Formal F.I.R. Was recorded on the same day at 9- 55 a.m. Complainant in this case is Salamat Masih, who is security guard at Church. In all five persons from the complainant party lost their lives including four females and, one male, while the 6th person, who was culprit, was companion of the appellants and was later on identified as Kamran Mir. There are 19 injured P.Ws. In this case. Although the prosecution produced nine witnesses amongst them the relevant eyewitnesses are Salamat Masih P.W.29, Mushtaq Anwar P.W.30 and Fayyaz Razzaq P.W.31. Identification parade in this case was held on 21-8-2002 under the supervision of Amjad Saeed, Judicial Magistrate Section 30/P.W.22. Mushtaq Anwar, who was technician in the hospital, Salamat Masih, who was security guard, and Earich Masih (eye-witness) identified all the appellants during identification parade. It was Fayyaz Razzaq who had identified only Abu Bakar and Muhammad Ayyaz and could not identify Saif ur Rehman during identification parade. Although lengthy cross-examination was conducted on the eye-witnesses and also on the learned Magistrate, who had held the identification parade, but only minor discrepancies could have been brought on the record. There , was no reason, for false implication of the appellants in this case. The appellants were not known to the eye-witnesses prior to the occurrence. It was the reason that only their description was mentioned in the F.I.R. During identification parade, as mentioned above, except Fayyaz Razzaq, all the eye-witnesses had identified the appellants. All the eye-witnesses are consistent and have supported the prosecution case on all the material points before the trial Court. They have fully supported the prosecution case. It was a case in which five innocent persons had lost their lives and 19 persons had received injuries. It was a case of terrorism and it had created insecurity amongst public at large. The recoveries of pistol and hand grenade were also effected from the appellants. Ocular account is fully corroborated by the medical evidence.
11. After having heard the learned counsel for the parties and having gone through the evidence on record we are of the opinion that the prosecution has proved its case against the appellants. There is no mitigating circumstances in favour of any of the appellants. The whole result of the above discussion is that the appeal filed by the appellants fails. Their conviction and sentence awarded by the learned trial Court is maintained on all counts.
12. Consequently, death sentence on all counts is maintained. Murder reference is answered in affirmative.
13. So far as appeal against acquittal (Criminal Appeal No,143 of 2004) is concerned, the appeal filed by Muhammad Ayyaz, Saif ur Rehman and Abu Bakar, who are also respondents in this appeal, against their conviction and sentence has already been dismissed and to the extent of remaining respondents it has been noticed that as no identification parade of these respondents was held, they were rightly acquitted by the learned trial Court and thus, no interference is called for. This appeal stands dismissed.