JUDGMENT JUDGMENT WAQAR HASSAN MIR, J.---The appellant Irfan Ali alias Ghulam Raza alias Ramzan son of Haji Dilbar Shah has filed this appeal (Criminal Appeal No.50 of 2006) against the judgment dated 1-9-2006 passed by the learned Judge, Anti-Terrorism Court-H Multan, camp at New Central Jail, whereby he was convicted and sentenced as under:
(i) DEATH SENTENCE on 40 counts each, under section 7(a) of ATA, 1997 with fine of Rs.300,000 on each 40 counts and in case of nonpayment of fine of Rs.300,000 for each 40 counts, to further undergo six months' S.I. On each 40 counts as consecutive.
(ii) TEN YEARS' R.I. Under secsection 7(h) of ATA, 1997, with fine of Rs.100,000 and in default of payment of fine, to further undergo three months S.I.
(iii) The appellant/accused was further burdened with a sum of Rs.300,000 on each 40 counts as compensation payable to legal heirs of each deceased for 40 counts under section 544-A, Cr.P.C.
And in case of default in payment of compensation, to undergo simple imprisonment of six months for each 40 counts. The sentence of imprisonment awarded for default of the payment of fine was ordered to run consecutively.
Murder Reference No.11 of 2006 for confirmation or otherwise of death sentence of the appellant shall also be replied through this single judgment.
2. The 'appellant/ accused was Challaned by the police of Police Station Lohari Gate Multan City to face the trial in case F.I.R. No.193 of 2004 dated 7-10-2004, offence under sections 302/324/ 436/427, P.P.C., section 7 of ATA, 1997 and 3/4 of Explosive Substances Act, 1908.
3. The F.I.R. (Exh.PNNNNN) was chalked out on the basis of application (Exh.PSSSSS) submitted by Syed Anwar Ali Shah (P.W.73) wherein he stated that today in the night he was present in the congregation held for Maulana Azam Tariq Shaheed Conference at "Chhota" Park situated in front of Riaz-ul-Aloom, Mohallah Rasheed Abad. At about 4-25 a.m. On 7-10-2004 he along with his companions Abdul Ghafoor son of Abdul Sattar resident of Samija-Ahmadabad and Maulana.
Abdul Ghafoor Jhangvi were present at the said place where congregation ended in prayers. The other participants of different cities were moving towards the road; that about 200 meters away from the main congregation, a Suzuki Car exploded with a bomb and the passerby people received injuries forthwith and out of them 39 persons succumbed to the injuries at the spot and 96 were seriously injured. The motive as set up was that the occurrence was committed by the militants of Fiqa Jaffaria', who have become their enemies.
4. After registration of the F.I.R., the accused/appellant was challaned whereas his co-accused namely Amjad Abbas alias Saleem was declared as Proclaimed Offender and case of the present accused/ appellant was separated under section 512, Cr.P.C. On 5-5-2005. After completion of the formalities, the accused/appellant was charge sheeted on 20-10-2005, who denied the charge and claimed trial. The prosecution produced as many as 80 P.Ws. In this case and after closure of the prosecution evidence, the statements of three Court Witnesses (CWs) were also recorded. The statement of the accused was recorded under section 342, Cr.P.C. Who also produced two defence witnesses.
5. P.W.1 was Dr. Asif Jameel Ansari, who conducted the postmortem examinations on the dead bodies of the deceased namely Aurangzeb son of Ramzan, Gulzar Ahmad son of Abdul Ghaffar, Qaisar Abbas son of Khuda Bakhsh, Javaid son of Wali Muhammad, Muhammad Muazam son of Abdul Qadir, Muhammad Tahir son of Manzoor Hussain, Qari Muhammad Hanif son of Allah Ditta, Abdul Basit son of Nazar Muhammad, Ashiq Hussain son of Ghulam Muhammad, Ijaz Ahmad son of Irshad Ahmad, Muhammad Ikram son of Muhammad Sultan, Attiqueur-Rehman's son of Nazar Hussain, Abdul Malik son of Muhammad Bakhsh, Taj Muhammad son of Khuda Bakhsh, Abdul Malik son of Haji Ramzan, Saif Ullah son of Ghulam Hussain, Saeed Ahmad son of Alam Jaffar, Allah Rakha son of Ghulam Farid, Muhammad Ibrahim son of Allah Yar, Riaz Hussain son of Pir Bakhsh, and Muhammad Rafique son of Qadir Bakhsh Sunari.
6. P.W.2 was Dr. Fayyaz Khan Durrani, who conducted the post-mortem examinations on the dead bodies of the deceased namely Muhammad Riaz son of Ghulam Fareed, Hafiz Abdul Khaliq son of Ghulam Qadir, Abdul Jabbar son of Allah Bakhsh, Abdul Rehman's son of Muhammad Ramzan, Imtiaz Munawar son of Ali Muhammad, Hammad Ahmad son of Mohib Ahmad Khan, Muhammad Azam son of Hafiz Muhammad Bakhsh, Hussain son of Muhammad Riaz, Abdul Ghaffar son of Dost Muhammad, Qadir Bakhsh son of Haji Allah Bakhsh, Khalid Dad son of Haji Muhammad, Allah Bakhsh son of Muhammad Yaqub, Saad Ullah son of Abdul Latif, Muhammad Tahir son of Muhammad Esa, Umar Farooq son of Abdul Latif, Abdul Malik son of Abdul Latif, Muhammad Nawaz son of Walayat Ali, Qari Hafeez-ur-Rehman's son of Hafiz Allah Bakhsh, and Mahmood Ahmad son of Bashir Ahmad.
7. P.W.3 was Yar Muhammad, who identified the dead bodies of Abdul Ghaffar son of Dost Muhammad, Khalid Dad son of Haji Muhammad, Abdul Qadir son of Allah Bakhsh, Allah Bakhsh son of Yaqoob, Saeed Ullah son of Abdul Latif and Muhammad Moazam son of Qadir Bakhsh before the doctor at the time of their postmortem examinations in the mortuary P.W.4 Muhammad Ajmal identified the deadbody of Abdul Basit deceased P.W.5 Shahbaz Munawar identified the dead body of Imtiaz Munawar deceased (his brother), P.W.6 Attique-Rehman's identified the dead-body of Hafeez-ur-Rehman's deceased, P.W.7 Allah Ditta identified the dead body of Qari Hanif deceased, P.W.8 Tariq Saeed identified the dead body of Tahir Aziz deceased, P.W.9 Muhammad Saeed identified the dead body of Allah Bakhsh deceased; P.W.10 Bashir Ahmad identified the dead bodies of Ashiq Hussain and Ijaz Ahmad deceased; P.W.11 Muhammad Ramzan identified the dead body of Muhammad Ikram deceased; P.W.12 identified the dead body of Qaisar Abbas and P.W.13 Abdul Qadir identified the dead body of his son Muhammad Moazzam, before the doctor at the time of postmortem examinations in Nishtar Hospital, Multan.
8. P.W.14 Zahoor Ahmad escorted the dead bodies of 18 deceased persons from the place of occurrence to Nishtar Hospital Multan for the purpose of postmortem examination on 7-10-2004 and on 12-10-2004 escorted the dead body of Aurangzeb to the mortuary of Nishtar Hospital Multan from cold storage of the said hospital for the purpose of postmortem examination. P.W.15 Irfan Hayat, draftsman prepared the scaled site plan and handed over the same to the I.O. On 9- 10-2004. P.W.16 Ghulam Fareed identified the dead bodies of Riaz and Husnain deceased, P.W.17 Muhammad Rafique identified the dead body of Muhammad Ibrahim deceased, P.W.18 Ijaz Hussain identified the dead body of Attique-ur-Rehman's deceased, and P.W.19 Muhammad Umar identified the dead body of Abdul Rehman's deceased, before the doctor at the time of post- mortem examination in Nishtar Hospital, Multan.
9. P.W.20 Karim Ullah, P.W.21 Saeed Ahmad, P.W.22 Muhammad Altaf, P.W.23 Muhammad Hussain, P.W.24 Khizar Hayat, P.W.25 Nazeer Ahmad, P.W.26 Muhammad Ashraf, P.W.27 Ashiq Hussain, P.W.28 Muhammad Ramzan, P.W.29 Khalid Shahzad and P.W.30 Haq Nawaz are the injured P.Ws. In this occurrence.
10. P.W.31 Shaukat Ali, S.-I., deposed that he along with Aamir Yazdani, Abdul Malik and Shaukat constables (P.Ws) was on duty at the place of occurrence and saw that at about 12-00 in the night of 6-10-2004 or 12-30 a.m. a Suzuki car (white colour) was parked by four persons near to the Conference place, four persons passed in front of the P.Ws. After parking the car on the road side, who were seen in the lights and that the same car exploded at about 4-25 a.m. And he (P.W.31) along with Shaukat, Aamir Yazdani and Abdul Malik constables (P.Ws) received injuries by explosion in the car. This P.W (P.W.31) participated in the identification parade held on 26-10-2004 and identified Irfan Ali Shah accused as culprit out of four persons who had parked the exploded car at the place of occurrence. P.W.32 Abdul Malik No.1797-C was also the eye-witness and injured P.W. P.W.33 Haq Nawaz Chohan, DDO(R), supervised the identification parade on 26-10-2004 within the premises of New Central Jail, Multan. P.W.34 Zeeshan Khalid was the owner of exploded car, which was snatched on 5-10-2004 and this P.W. Identified Irfan Shah accused on 26-10-2004, in the identification parade, as the same person who had snatched his car on pistol point.
11. P.W.35 was Abdul Ghaffar, who received injuries at the place of occurrence and helped in shifting the deceased persons to Nishtar Hospital, Multan, and also attested the memo. Of recovery of blood-stained earth. P.W.36 Arif Saeed was the eye-witness of the occurrence being participant in the congregation on 6-10-2004; this P.W. Also participated in the identification parade on 26-10- 2004 and identified Irfan Ali Shah accused. P.W.37 Muhammad Akhtar, 1571/HC, was Moharrar of the Police Station, who received the parcels etc. For keeping the same in Malkhana of Police Station for safe custody. P.W.38 Saeed Ahmad, 148/HC, received five parcels as Moharrar from Mazhar Nawaz, S.-I, containing bloodstained earth, body parts of the Suzuki car comprising engine, chassis plate and kept the same in safe custody and then handed over the articles to Muhammad Akhtar, HC, and P.W.39 Muhammad Ramzan, S.-I. Delivered the parcels of above said articles to the concerned offices i.e. The office of Chemical Examiner and that of Forensic Science Laboratory Lahore on 23- 10-2004.
12. P.W.40 Tahir Mehmbod, S.-I., was handed over the non-bailable warrants of arrest issued against Amjad Abbas alias Saleem son of Ghulam Abbas, which remained unexecuted. P.W.41. Ijaz Ahmad, 1153/C, witnessed the recoveries got effected by Irfan Ali accused. P.W.42 Mohib Ahmad Khan identified the dead body of his son Hamid Mehmood deceased, P.W.43 Abdul Latif identified the dead bodies of his son Hafiz Umar Farooq and Hafiz Abdul Malik deceased, P.W.44 Muhammad Bilal identified the dead body of Abdul Malik deceased, and P.W.45 Ijaz Ahmad identified the dead body of Qari Saeed Ahmad deceased, before the doctor at the time of postmortem examinations at Nishtar Hospital, Multan. P.W.46 Muhammad Latif, P.W.47 Ghulam Murtaza and P.W.48 Hafeez-ur- Rehman's are the eye witnesses as well as injured P.Ws in this case. P.W.49 Muhammad Ashraf identified the dead body of Riaz Hussain deceased before the doctor at the time of postmortem examination. P.W.50 Tajammal Hussain, P. W.51 Muhammad Saleem Ullah, P.W.52 Rajab Ali, P.W.53 Hafeez Ullah P.W.54 Muhammad Shafique, P.W.55 Muhammad Tahir, P.W.56 Abdul Hafeez, P.W.57 Ghulam Abbas, and P.W.58 Javaid Nishat are also the injured P.Ws in this occurrence P.W.59 Muhammad Muavia identified the dead body of his cousin Aurangzeb deceased before the doctor at the time of postmortem examination.
13. P.W.60 was Azmat Khan S.-I., the Investigating Officer of this case: he arrested the accused Irfan Ali and deposed about the steps of investigation carried out by him. P.W.61 was Fiaz Ahmad, Inspector, who on 6-10-2004 was deputed as Incharge with regard to security of the congregation held near Rasheed Abad Chowk and was present at the spot when explosion took place at 4-30 a.m. On the same night i.e. 7-10-2004. Anwar Ali Shah (P.W.) handed over a written application to this P.W. Which he sent to the Incharge Investigation Police Station Lohari Gate and on 5-1-2005 this P.W. Prepared the incomplete report under section 173, Cr.P.C. P.W.62 was Abdul Rehman's, who received explosives injuries at the place of occurrence and was medically examined. P.W.63 Muhammad Tariq Constable was entrusted with 11 dead bodies for escorting the same to Nishtar Hospital Multan for postmortem examination. P.W.64 Arshad Ali witnessed the snatching of car by Irfan Ali accused from Zeeshan P.W. On 5-10-2004 and identified Irfan Ali Shah accused as the same person who snatched the car. P.W.65 Khadim Hussain, 1470/HC, wrote down the F.I.R.
(Exh.PNNNNN) as H.C/Duty Officer in Police Station Lohari Gate, Multan.
14. P.W.66 Mazhar Nawaz, S.-I./ Investigating Officer of this case, inspected the place of occurrence, prepared the usual site plan, prepared injury statements of about 100 injured persons, took into possession Chassis plate, engine of Suzuki Car, the wreckage of Car, Magnet, burnt motor cycle and jeep as well as blood stained earth through sealed parcels; also prepared the applications for postmortem examinations of the dead bodies as well as their inquest reports, got prepared the scaled site plan of the place of occurrence from the draftsman, recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 12-10-2004 the injured Qaisar Abbas died in Nishtar Hospital, Multan and this witness got conducted the postmortem of the deceased; on 13-10-2004 he recorded the statements of the injured P.Ws. And on 16-10-2004 joined Waseem son of Mahboob Elahi as suspect and then the investigation was changed and entrusted to Azmat Khan, S.-I.
15. P.W.67 Mubarak Ali, P.W.68 Abu Bakkar, P.W.69 Muhammad Asif, and P.W.70 Muhammad Arif also received injuries at the place of occurrence and were medically examined. P.W.71 Abdul Rehman's identified the dead body of his brother Taj Muhammad deceased before the doctor at the time of postmortem examination. P.W.72 Sabir Hussain, S.-I. On 25-4-2005 checked out the register of property dealer `Gulistan Property' and at page No.149 thereof found photographs of Irfan accused on the identify card in the name of Ghulam Raza through which House No.410, I-Block was rented to him for Rs.3500 per month; this P.W. Also took into possession the entry in the register of Multan Guest House Multan and recorded the statements of the P.Ws under section 161 Cr.P.C. P.W.73 Syed Anwar Ali Shah was the complainant of this case.
16. P.W.74 Muhammad Iqbal a was the owner and proprietor of Multan Guest House Multan, who stated that on 2-10-2004 at about 9-00 a.m. a person came to him, demanded a room for stay; he delivered him a room and the identity card was endorsed in his register, which register was taken into possession by the police. P.W.75 Rana Shakeel Ahmad, A.S.-I., was the witness of memo of register of Gulistan Property Dealer and that of Multan Guest House. P.W.76 Hafiz Muhammad Tayyab identified the dead body of his brother Muhammad Tahir before the doctor at the time of postmortem examination. P.W.77 Haji Muhammad identified the dead body of his brother Muhammad Nawaz. P.W.78 Abdul Rauf, Proprietor of Gulistan Property Dealing Agency, deposed that page No.149 of the register was filled up by one of his servants; this P.W was declared hostile and was cross-examined by the prosecution.
17. P.W.79 was Muhammad Bashir, Bomb Disposal Technician Civil Defence, who stated that on 7- 10-2004 he received telephonic call from '15' Police that a bomb blast occurred at Rasheed Abad Chowk; he along with his team proceeded to the place of occurrence, found exploded car with dig of 2 feet into 1-1/2 feet depth; he also examined the affected area and his conclusion was that it was a bomb explosion; it was an improvise explosive device locally made. P.W.80 was Hafiz Obaid Ullah, who made entry in register of accommodation of Multan Guest House Multan as clerk on the asking of Malik Iqbal (P.W.)/proprietor of said Guest House. This witness did not recognize the accused/appellant in the learned trial Court due to the lapse of time as to whether the accused present in the trial Court was the person whose name was entered by him. This P.W. Was declared hostile by the learned P.P and was cross-examined.
18. The learned P.P gave up the P.Ws. Namely Muhammad Ramzan son of Faiz, Bakhsh, Zulfiqar Ali/C, Muhammad Aslam S.-I., Shaukat Ali/C No.1806, Aamir Yazdani/C No.428, Zulfiqar Ali No.1163/HC, Maulana Abdul Ghafoor Jhangvi, Muhammad Ramzan, Abdul Majeed, Faiz-ul-Haq, Shakeel Ahmad constable No.1295, Allah Ditta son of Nazeer Ahmad, Bilal son of Abdul Sattar, Ismail son of Akram, Aslam son of Gul Muhammad, Muneeb-ur-Rehman's, Atta Ullah son of Allah Dewaya, Asif son of Mushtaq, Bilal son of Khadim Hussain, Rashid son of Azeem-ud-Din, Muhammad Aslam, S.-I, and by tendering in evidence the report of Forensic Science Laboratory, report of Serologist and that of Chemical Examiner, closed the prosecution case.
19. Three C.Ws. i.e. Subah Sadiq, HC/1868 (C.W.1), Allah Bakhsh HC/ Moharrar (CW-2) and Muhammad Riaz HC/Moharrar (CW-3) were also examined. Thereafter, statement of the accused/ appellant under section 342, Cr.P.C. Was recorded. He did not opt to appear on oath in his defence as provided under section 340(2), Cr.P.C. However, he opted to produce the defence evidence. The statements of two defence witnesses i.e. Rizwan Sheikh, Reporter of daily `Khabrain' as DW-1 and Muhammad Mazhar, Staff Reporter of newspaper daily 'Jang' Multan as DW-2 were recorded. News Reporter, Photographer of daily `Nawa-i-Waqe and representative of PTV were given up being unnecessary.
However, after conclusion of the trial, the accused/appellant was convicted and sentenced by the learned trial Court, as mentioned above.
20. Learned counsel for the appellant submits that the prosecution has failed to produce any incriminating evidence against the accused/appellant; the investigation was dishonest and defective, right from its commencement; the names of the P.Ws i.e. Shaukat Ali, S.-I. (P.W.31), Abdul Malik constable (P.W.32), Arif Saeed (P.W.36) were not mentioned in the F.I.R. As P.Ws, therefore, their claim of presence and identification of the culprits, who parked the car, is highly doubtful; that the F.I.R. Was lodged with deliberations, delay and after preliminary investigation; that the complaint (Exh.PSSSSS) is not proved on record; that deployment of the P.Ws. At the scene of occurrence is not proved; the recoveries alleged against the accused/ appellant are not of incriminating nature and the identification parade is against law as the ordinary precautions have not been adopted; that Ghulam Habib, Warder, was the source of information for recognition of Irfan Ali accused/appellant who remained with the supervising Magistrate throughout the identification parade; that observation of the P.Ws. Who participated in the identification parade cannot be claimed extraordinary in the dark night, hence the prosecution failed to bring home the charge against the accused/appellant. Further submits that the accused/appellant was publicized in the newspapers, his photograph was published before holding of identification parade, which proves fatal to the prosecution evidence; that motive has not been proved on record; that Zeeshan Khalid (P.W.) and Arshad (P.W.) were later on introduced and the occurrence of snatching the car has not been proved on record; that identification of the accused by Zeeshan and Arshad (P.Ws.) was the result of publications of photographs of the accused; that one tainted piece of evidence cannot corroborate another tainted piece of evidence and finally that the accused/appellant was made a scapegoat and the prosecution has failed to prove the charge against him.
21. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant submits that the prosecution has succeeded to prove the charge against the accused/appellant through reliable testimonies of P.W.31 Shaukat Ali, S.-I., P.W.2 Abdul Malik constable and P.W.36 Arif Saeed and the presence of these P.Ws has been proved on the record at the scene of occurrence; that arrangement of lights has been proved on record at the scene of occurrence; that specific role has been attributed to the accused/appellant by the P.Ws. Even when they identified him in the test identification parade; that the P.W. Zeeshan. Khalid was an independent person who specifically nominated the present accused/appellant and recognized him in the identification parade as the same person who snatched the car; that the exploded car was identified by Zeeshan Khalid (P.W.) as the same car which was snatched by the accused/ appellant from him and that his statement stood corroborated by the testimony of Muhammad Arshad (P.W.64); that the recoveries were effected from the accused/ appellant; that hearsay evidence of the newspaper cannot be made basis for contradicting the prosecution evidence and that the prosecution has succeeded to establish the charge against the accused/ appellant for the terrorism act, causing the death of 40 persons and injuring the P. Ws.
22. Arguments heard. Record perused.
23. Before proceeding further, we are deeply grieved of the incident and pray that Almighty Allah may rest the departed souls in eternal peace and tranquility.
24. The charge in this case was framed on 20-10-2005 under 120 heads and first head of the same shows that the appellant was charged under section 3 of Explosive Substances Act, 1908. The same Statute contains section 7, which is reproduced below for convenience:- "7. Restriction on trial of offences. No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the [Provincial Government.] Out rightly we have asked the learned counsel for the complainant as well as the learned Deputy Prosecutor-General as to whether in this case, sanction for conducting the trial under Explosive Substances Act, 1908 as postulated by section 7 was granted or available in the record, but they were unable to point out or provide any sanction letter in the Paper Book or otherwise from the record. We are reminded of a maxim "A communi observantia non est recedendum" Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful. Therefore, we see that on this score alone, the trial stands vitiated. But in view of sensitivity of the matter, we are now discussing the merits of this case.
25. After hearing both the parties, we have formulated the following points for convenience, to be discussed in detail and to give our comments and findings:--
(i) The F.I.R. (Exh.PNNNNN) is destitute of the fact as to who had come outside the congregation and who had parked the car.
(ii) The F.I.R. Is also devoid of any description of features of the persons who had parked the car.
(iii) There is no mention of the P.Ws. In the F.I.R. Who had taken part in the Test Identification Parade (hereinafter referred to as "TIP") and even otherwise the other record is also silent about the same.
(iv) Whether in this case the registration of the F.I.R. Was delayed and was registered after deliberations and concoctions.
(v) As may as 40 inquest reports were prepared in this case containing the names of Abdul Ghaffar Jhangvi and Abdul Ghafoor Jhangvi as P.Ws., who have identified the dead bodies at the time of postmortem examination.
(vi) Snatching of car by the present appellant from Zeeshan Khalid (P.W.34).
(vii) TIP, whether was conducted according to the High Court Rules and Orders.
(viii)The detention of the appellant, whether in police lock up or in Investigation Center, Multan.
(ix) Publishing of a photograph of the appellant in the newspaper before the conduct of TIP.
(x) The recoveries if proved in toto would have any bearing on the case and still connects the appellant with this case.
(xi) Whether any independent corroboration was available in this case to sustain the conviction.
(xii) Whether, the investigation in this case was up to the mark or it was simply a mouthwash upon hype created after the bomb blast.
26. Now we dilate upon the above points in detail. As far as the F.I.R. Is concerned, the same contains the names of all the deceased and the injured. This fact merely shows that since it was a conference in the nature and congregation was open to everybody, therefore, there was no possibility for the complainant to know the name and parentage of every deceased and the injured. On the other hand, in spite of detail of names of the deceased and the injured contained in the F.I.R. There is no mention of the fact as to how the car was parked and who has parked the same. Even no detail of description of features of the accused is provided in the F.I.R. The F.I.R. Also does not contain the names of the P. Ws. Who have participated in the TIP. The occurrence in this case has taken place on 7-10-2004 at 4-25 a.m. And it is reported on the same day at 5-55 a.m.
Through an application by Syed Anwar Ali Shah, the complainant (P.W.73). We see that factually as many as 40 inquest reports unless were prepared the names of the deceased could not have been known to the complainant and same is the case of injured. Even otherwise we see that magnitude of the blast created the panic and jolted whole of the city and in this spectrum the lodging of the F.I.R. Within 1-1/2 hour containing the names of all the deceased and the injured of course shows that the same was registered after due deliberation and consultation. Even the names of Abdul Ghaffar Jhangvi and Abdul Ghafoor Jhangvi, which are found in all the inquest reports, are not mentioned in the F.I.R., which means that of course the occurrence had taken place at 4-25 a.m.
And the same was reported at 5-55 a.m. But the narration and writing down of the occurrence in the F.I.R. Register had not taken place till the other formalities were completed.
27. There is a very strange fact, which has taken place in this case, i.e. Snatching of car by the appellant etc. From Zeeshan Khalid (P.W.34) and the F.I.R. Regarding this occurrence was produced in this case as Exh.CW1/A, the particulars of which show that F.I.R. No.154 of 2004 dated 7-10-2004 offence under Sections 392/411/427, P.P.C. Was registered with Police Station New Multan District Multan, wherein the time and date of occurrence is stated to be 7-00 p.m. On 6-10-2004. It now can well be perceived that the occurrence in the present case has taken place on 7-10-2004 and the matter was reported to the police in case F.I.R. No.154 of 2004 on 7-10-2004 at about 1-20 a.m. (in the night) about the occurrence which had taken place on the preceding night i.e. At 7-00 p.m. At 6-10-2004. The concurrence, which is found in reporting the matter on 7-10-2004 and the present occurrence taken place on 7-10-2004, cannot be a coincidence and thus, maneuverability of reporting the matter at about 1-20 a.m. (midnight) on 7-10-2004 cannot be ruled out. But it is patent that qua snatching the car from. P.W.34, a separate case was registered and P.W.34 in the capacity of complainant did not identify the accused in case F.I.R. No.154 of 2004, but has done so in the present case, which is a patent illegality and cannot be cured under section 537 of Cr. P. C .
28. It goes without saying that the car used in the blast was totally exploded and as per P.W.34 Zeeshan Khalid, he identified the same car by reading Chassis Number at the occurrence, but surprisingly the F.I.R. Lodged by him for the robbery of the car does not contain the Chassis Number, therefore, it is incomprehensive as to how Zeeshan Khalid came to know that his car has been used for explosion, thus, his taking part in the TIP cannot be considered on the principle that evidence of one case cannot be read in another case. Secondly, no source of information was disclosed by the said P.W. As to how he came to know about the same car used in the explosion, because the car used for explosion was so damaged that he had to read the Chassis Number.
29. The prosecution case, as pointed out above, does not disclose the names of the P.Ws. i.e. Police officials perched as guards outside the congregation, the I.O. Has not produced any Rapat or record showing that these were the police officials who were deployed as guards outside the congregation, therefore, learned counsel for the appellant was right in saving that it was the duty cast upon the prosecution to point out that these were the persons deployed there who had taken part in the TIP. Even otherwise, if it is presumed that the P.Ws produced by the prosecution were the persons who were deployed as guards, then till the car was parked and the persons alighted from the car, no abnormality was seen by these P.Ws, therefore, in the presence of 4000/5000 persons when the P.Ws had the glimpse of those persons for seconds, it was not safe to rely upon the testimonies of these PWs. Further that the F.I.R. Was silent about the fact as to who was the person driving the car and how many persons alighted from the same. Resultantly, the subsequent TIP maintaining the facts will not have any corroboratory value.
30. We see that the entire prosecution case hinges on TIP, but there is nothing on the record to connect the present appellant with the occurrence. The appellant was arrested in this case on 20- 10-2004, was sent to the judicial lock up on 21-10-2004 as deposed to by P.W. 60 Azmat Khan, S.- I./Investigating Officer of this case. The TIP had taken place on 26-10-2004 and the period from 20- 10-2004 to 26-10-2004 becomes very material and in this case the possibility of the accused having been shown to the P.Ws cannot be ruled out. As per P.W.60 Azmat Khan, S.-I/Investigating Officer he deposed that it is correct that the appellant was kept in investigation Center, Multan, but a perusal of the same Rapat shows that it does not contain the fact that the accused/appellant was shifted to Investigation Center, Multan. In this context, Muhammad Riaz 2467-C (CW-3) deposed that there was no Rapat written in this context and it was only Azmat Khan, S.- I./Investigating Officer, who had gone to the Investigation Center, Multan from Police Station Lohari Gate, which shows that the appellant was kept in the Police Station Lohari Gate, Multan and from 20-10-2004 to 26-10-2004 was shown to the P.Ws. In this situation, the Rozenamcha of Police Station Lohari Gate Multan was brought in which does not show that the appellant was moved to the Investigation Center, Multan and that the same also contains a fact that after the conduct of TIP and the alleged recoveries, the accused/ appellant was sent to the judicial lock on 13-11-2004. P.
W. 61 Fiaz Ahmad, Inspector/S.H.O. Had categorically deposed to the effect that names of the P.Ws.
Who had taken part in the TIP, are not found in any of the police record and that all the inquest reports contain the names of Abdul Ghaffar Jhangvi and Abdul Ghafoor Jhangvi as P.Ws. And not more than that Mazhar Nawaz, S.-I./Investigating Officer (P.W.66) drafted the inspection notes as well as rough site plan, but the same do not contain the name of any material witness. As has already been discussed and pointed out above, the F.I.R. Lodged by Zeeshan Khalid (P.W.34) was tampered and forcooking up a case, material illegality has been committed by the Investigating Agency.
31. As discussed above, the prosecution case exclusively hinges on TIP regarding which there are two sets of P.Ws. i.e. One that of constables and other that of P.W.34 Zeeshan Khalid and P.W.64 Arshad Ali. P.W.64 Arshad All deposed too that on 7-10-2004, the alleged date of occurrence, the newspapers daily `Nawa-i-Waqt' and `Jang' published the news, photographs of the blast including photograph of the appellant and in this scenario the conduct of TIP by P.W.33 Haq Nawaz Chohan (Special Judicial Magistrate) reveals that it was Ghulam Habib Warder who remained present in whole of the TIP proceedings and at the direction of the Magistrate (P.W.33) called all the P.Ws alternatively in a sequence and that there was every possibility of pointation or tutoring the number of the accused sitting between the dummies. P.W.31 Shaukat Ali, S.-I. Accepted Exh.DA, Exh.DA/1 and Exh.DB i.e. The clippings of the newspaper about the occurrence and photograph of the appellant. Here in this case, an objection can be taken about the newspaper clipping as hearsay evidence and that one is not stopped to raise the legal objection, but even if we discard these newspaper clippings and do not take the same into consideration, even then the TIP remains pivotal stone of the prosecution case as well as the base. However, we find that the observation required to be made by the Magistrate was about the description of dummies i.e. Whether the contours of their faces were of great resemblance with the present appellant, their structures and their physiques were of more resemblance if not in toto as well as the ages of the dummies, but the same are not mentioned; therefore, presence of the appellant among the dummies since was with a distinct feature, so the TIP does not even give any corroboration to the prosecution case because in the same premise it would not contain any evidentiary value. P.W.32 Abdul Malik No.1797-C has also appeared in this case on account of sensitivity of the case, but he has not deposed about anything regarding the house having been taken on rent by the present appellant and as no document qua the rented premises was produced, therefore, the fact, whether the appellant obtained a house on rent or not, is also shrouded in mystery. Moreover, the recoveries in this case also do not connect the appellant with the crime, as the articles similar in nature were not recovered.
32. Now we come to the investigation. We are aware of implication of the occurrence on account of its sensitivity, but the given facts and circumstances of this case have compelled us to observe that investigation in this case was not up to the mark, what to talk of about the reasonability and logical investigation. As many as 6/7 policemen of the rank of Sub-Inspector have appeared in this case and they have collectively investigated and thrashed the circumstances, but all of them do not even know the premise and four corners or the investigation and we see that on account of the hype created by the bomb blast, they have only blown their trumpet, but nothing else. We would be right in saying that here in this case only the collection of documents is there without establishing the connection inter se the documents and the material to be grooved in the thread and that whether the sequence of events and the documents built up a chain starting from the beginning and ending at the last with certain conclusions. Therefore, we hold that instead of collecting the numerous documents, the Investigating Officers should have concentrated on the collection of evidence and the material to fill up the gaps as pointed out supra. Due to non-mentioning the names of the P.Ws. In the F.I.R. It was not incumbent to mention the names of all the deceased and the injured in the F.I.R., whereas no document about deployment of the guards outside the congregation was provided. Further that the TIP conducted by P.W.33 Haq Nawaz Chohan (Judicial Magistrate) would have been satisfactory if the same was conducted according to High Court Rules and Orders. Last but not least, we see that it was revamping that nobody has taken actual pain and felt the pain to proceed with the facts and investigation chronologically and logically and not mechanically and that it was very unreasonable to make the people scapegoat on futuristic apprehensions, as both the sides in this case quite powerfully perched each other.
33. For what has been discussed above, we are of the considered opinion that case against the appellant is doubtful in nature, so result of the above discussion is that this appeal i.e. Criminal Appeal No.50 of 2006 filed by the appellant namely Irfan Ali alias Ghulam Raza alias Ramzan son of Haji Dilbar Shah is hereby ACCEPTED and his conviction and sentences recorded by the learned trial Court through the impugned judgment are set aside. Death sentence of the appellant Irfan Ali alias Ghulam Raza alias Ramzan son of Haji Dilbar shah is not confirmed; accordingly Murder Reference No.11 of 2006 is answered in the Negative.
He shall be released forthwith, if not required in any other case.