' MAZHAR IQBAL SIDHU, J.---This composite judgment will dispose of above captioned all the criminal appeals emanated from the same impugned judgment dated 23-12-2006 handed down by learned Judge Anti-Terrorism Court-I, Gujranwala in a case registered vide F.I.R. No.237/03 dated 25-7-2003 under sections 1091223/119/365/324/302/148/ 149/322/34, P.P.C. Read with sections 7(a), 7(c)/21(i) of Anti-Terrorism Act, 1997 at Police Station Civil Lines, District Sialkot.
' Syed Ghulam Abbas Bokhari appellant as being aggrieved on his own behalf and three other appellants in Criminal Appeal No.78 of 2007 have assailed the acquittal of respondents/ accused namely Raja Mushtaq Ahmad, Muhammad Hafeez, Sikander Hayyat, Akhtar Iqbal, Ghulam Sarwar, Abdul Aziz (since dead), Riasat Ali, Malik Muhammad Iqbal, Amjad Javaid Saleemi, Raja Munawwar Hussain, Dr. Sajid Hussain, Muhammad Mehmood, Ghulam Sarwar, Amjad Ali, Asghar Ali, Zafrullah, Shehzad Ahmad, Kamran Ali, Qaiser Mehmood son of Muhammad Aslam, Abdul Razzaq, Shabbir Anwar, Qaiser Mehmood son of Sardar Muhammad and Inam Ullah seeking conviction of all mentioned op-cit for offences under sections 302/324/365/ 223/109/ 322/34/148/149, P.P.C. Read with sections 7(a), 7(c)/21 (i) of Anti -Terrorism Act, 1997.
' Whereas Raja Mushtaq Ahmad and Muhammad Hafeez appellants through Criminal Appeal No.1933 of 2006 and Criminal Appeal No.1938 of 2006 respectively have challenged their convictions and sentences and have prayed for their acquittal. They were convicted and sentenced infra:--
(1) RAJA MUSHTAQ AHMAD.
(i) Five years' R.I under sections 119, P.P.C. Read with section 324, P.P.C. As Tazir with fine of Rs.10,000 and in default whereof to further undergo S.I. For two months.
(ii) Six months' R.I. Under section 119, P.P.C. Read with section 342, P.P.C. With fine of Rs.1500 and in default whereof to further undergo S.I. For 15 days only.
(iii) Ten years' R.I. Under sections 119, PPC read with section 302, PPC and section 7(a) of the Anti- Terrorism Act, 1997 on three counts.
(2) MUHAMMAD HAFEEZ.
(i) Five years' R.I. Under section 119, P.P.C. Read with section 324, P.P.C. As Tazir with fine of Rs.10,000 and in default whereof to further undergo S.I. For two months.
(ii) Six months' R.I. Under section 119 P.P.C. Read with section 342, P.P.C. With fine of Rs.1500 and in default whereof to further undergo S.I. For 15 days.
(iii) Ten years' R.I under section 119 PPC read with section 302, PPC and section 7(a) of Anti- Terrorism Act, 1997 on three counts.
' All the sentences were ordered to run consecutively. However, they were , extended the benefit of section 382-B of Cr.P.C.
2. Muhammad Yousaf Ojla, the then learned Senior Civil Judge, Sialkot P.W.38 had set 'the law in motion through his complaint Exh.PA wherein he has mentioned that on the rueful day i.e. 25-7- 2003 at 10-30 a.m., the then learned District and Sessions Judge, Sialkot visited District Jail, Sialkot in order to hear complaints of accused persons and took along him Saghir Anwar, Saeed Rafique, Muhammad Naeem Sheikh, Shehar Yar Bokhari, Rai Muhammad Naeem, Abdul Rehman, Malik Tariq Mehmood, Asif Mumtaz Cheema, Javaid Iqbal Warraich and Shahid Munir Ranjha, learned Civil Judges-cum-Judicial Magistrates, Sialkot, Pervaiz Iqbal Butt and Sebtain Raza Kazmi, learned Special Judicial Magistrates at District Jail, Sialkot because on the said day on account of demise of Malik Khalid Mehmood, learned members of the Bar were not appearing in Courts to mourn the death of their colleague. Contingent of Judicial Officers was returning after having heard the complaints from the ladies barrack, learned District and Sessions Judge was ahead of other Judicial Officers whereas the remaining Judges were yet inside the ladies barrack, surprisingly five accused persons whose names later-on came as Muhammad Shehbaz Butt, Ejaz Ahmad Butt sons of Sarfraz Ahmad, Ashfaq alias Ishaq, Muhammad Rafique alias Kona and Munir Ahmad alias Muniri who were armed with .30 bore pistols, all of sudden made murderous assault through fire shots on learned District and Sessions Judge who luckily remained unscathed and proceeded towards the office of Superintendent Jail. Complainant Muhammad Yousaf Ojla alongwith Abdul Rehman and Rai Naeem, learned. Civil Judges entered barrack No.8 whereas the remaining learned Judges were made hostages in ladies' barrack by above mentioned five persons from where Muhammad Yousaf Ojla complainant telephonically established contacts with District Police Officer, Sialkot, after a short while, police force headed by Amjad Javed Saleemi, the then DPO, arrived at jail, parleys commenced with the above mentioned accused persons but on failure, the police party commenced action. When firing ceased to an end, complainant, Abdul Rehman and Rai Naeem came out of the Barrack No.8, then learnt that Saghir Anwar, Asif Mumtaz Cheema, Shahid Munir Ranjha, learned Civil Judges embraced martyrdom/succumbed to the injuries whereas Sheharyar Bokhari, Javaid Iqbal Warraich, Sebtain Raza Kazmi, learned Civil Judges were found injured alongwith some other persons. It has also come to'the knowledge of the complainant that captors who sieged the learned Judges five in number namely Ejaz Butt and others were also lost their lives during the incident. It has further been mentioned in F,I.R. That incident took place on account of criminal machination of the Jail Authorities because without their criminal conspiracy the firearms could not have been brought inside the jail. The complainant with the help of police party transported the deceased-persons as. Well as injured. Civil Judges to DHQ Hospital, Sialkot and on his statement Exh.PA formal F.I.R. Was lodged as Exh.PA/1 at Police Station Chill Lines, Sialkot by Amjad Ali, S.I. The complaint was forwarded to police station by S.I. Sana Ullah (CW.1) through Moman Raza 1100/C.
3. Sana Ullah S.-I. (CW.1) the first Investigating Officer of this case, inspected the ladies' barrack alongwith P.Ws., Aftab Ahmad, Muhammad Boota, Rasheed Ahmad A.S.I's and seven constables.
Rai Naeem Kharl and Muhammad Tariq Civil Judges identified dead bodies of Shahid Munir Ranjha, Asif Mumtaz .Cheema and Sagheer Anwar. Ifran-ul-Haq Inspector and Rana Muhammad Iqbal S.I.
Identified dead bodies of the captors. He prepared inquest reports of Sagheer Anwar, Shahid Munir Ranjha, Asif Mumtaz Cheema Exh. CW-1/1 Exh. CW-1 /2 , Exh,. CW-1/3 , applications for their post mortem examination Exh . PMM/1 , Exh. PLL, Exh.PXX respectively. He prepared inquest reports of Shahbaz Ahmad Exh.CW-1/4, of Rafique alias Kona Exh.POO, of Ishaq Exh.PTT, of Muhammad Munir alias Muniri Exh.CW-1/5, of Ijaz Ahmad Exh.CW-1F6. He also prepared injury sheets of Ijaz Exh.PSS and of Ishfaq Exh.PVV, of Muhammad Munir Exh.CW-1/7, of Muhammad Rafique alias Kola Exh.CW-1/8 and of Shahbaz Ahmad Exh.CW-1/9. He drafted applications for post-mortem examination of Munir alias Muniri Exh.PLL, of Ijaz Ahmad Exh.PRR, of Ishfaq alias Ishaq Exh.PUU, of Shahbaz Ahmad Exh.PM, of Rafique alias Kona Exh.CW-1/10. He dispatched the dead bodies of three Judicial Officers and five captors to the mortuary Sialkot through Aftab Ahmad A.S.-I. And other police staff. Then, he inspected the spot, secured blood of all the deceased of this case through cotton swabs, made the same into sealed parcels and took into possession vide memos Exh.PH, Exh.PJ to Exh.PP. He secured .30 bore pistol P-19 with three magazines P63/1-3 and 22 live bullets P-20/ 1-22 lying near dead body of Shahbaz Ahmad captor vide memo Exh.PQ, .30 bore pistol P-21 with three magazines P64/1-3 and 23 live bullets P22/1-23 vide memo Exh.PR lying near dead body of Ijaz Ahmad, .30 bore pistol P-23 with three magazines P65/1-3, live bullets P24/1-25 vide memo Exh.PS lying near dead body of Muhammad Ishfaq alias Ishaq, 30 bore pistol P-25 with three magazines P-66/1-3 and live bullets P-26/1-8 vide memo Exh.PT lying near dead llody of Muhammad Munir alias Muniri, 30 bore pistol P-27, three magazines, live bullets P-28/1-22 lying in bath-room of ladies' barrack vide recovery memo Exh.PU attested by the P.Ws.. Separate sealed parcels of the above recovered firearms and ammunition were prepared by him. He also secured three iron bar fetters P29/1-3 (in broken condition) lying in lady's barrack of the Jail vide memo Exh.PV. He also secured 84 crime empties of .30 bore pistol P-30/1-84, made the same into sealed parcel and took into possession vide memo Exh.P.W. Attested by the P.Ws. He also secured from the spot crime empties of SMG rifle P-31/1-94, of MP-5 P32-1/3, of G-3 P-33/1-9, heads of different calibres of bullets P-34/1-70, 9 empty shells of tear gas. P-35/1-9 vide recovery memo Exh.PX attested by the P.Ws. Separate sealed parcels of three crime empties were prepared. He prepared rough sketch of place of occurrence Exh.CW-1/11. He recorded statements of marginal witnesses of recovery memos and Mehmood Ali Incharge Elite Force. Thereafter, he visited Allama Iqbal Memorial Hospital, Sialkot. Ameer Ali, Arshad and Naseer Ahmad constables joined investigation before him and produced before him external postmortem reports of three Judicial Officers and recorded their statements. Muhammad Sarwar, Assistant Superintendent Jail and Salma Bibi (under-trial prisoner) of the jail, Khalid Arshad Head Warder, Sebtain Razi Kazmi, Special Judicial Magistrate were found admitted in the said hospital and he obtained their MLRs and moved applications Exh.CW-1/12, Exh.CW-1/13, Exh.CW-1/14 before Medical Officer on duty for permission for recording statements, of the latter three persons. The doctor allowed these petitions and he recorded their statements. On the same date, after his return to the police station, he delivered the above secured articles to the Moharrar of the Police Station intact. On 26-7-2003, at 3.30 a.m.(night), Aftab Ahmad A.S.-I. Alongwith Muhammad Waris, laved Iqbal constables appeared before him and produced before him copies of post-mortem reports of the captors of this case, their last worn blood-stained clothes. He secured last worn blood imbrued clothes of Muhammad Rafique alias Kona Shalwar P-1, Shirt P-2, Vest P-3 vide memo Exh. PB, Shalwar P-4, Shirt P-5, Vest P-6, black waist belt of Munir alias Muniri vide memo Exh.PC, black shirt P-8, Khaki Patloon P-9 (official uniform), Vest P-10 and one sealed phial P-11 of Ijaz Ahmad vide memo Exh.PD, Shalwar P-12, Shirt P-13, Vest P-14 of Muhammad Ishfaq and one sealed phial said to contain crime bullet P-15 vide memo Exh.PE, Shalwar P-16, Shirt P17, Vest P-18 of Shahbaz Ahmad deceased vide memo Exh.PF. These memos were attested by Muhammad Farooq and Muhammad Waris constables and he recorded their statements. On the same date, Aftab Hussain A.S.-I.
Produced before him various articles (personal belongings detailed in memo) which were recovered by him (Aftab Hussain A.S.-I.) during personal search of deceased Judicial Officers and he (1.O.) secured the same vide recovery memo Exh. PG attested by Muhammad Farooq and Muhammad Waris constables and he also recorded their statements. On 26-7-2003, he summoned Mirza Tahir Tasneem draftsman who in his presence and of complainant, took rough notes and on 27-7-2003 produced before him scaled site plan Exh.PBBB and Exh.PBBB/1. He also recorded the statement of draftsman. On the same date, at night time, complainant submitted before I.O., his written supplementary statement and thereupon, offences under section 6/7 of the Anti-Terrorism Act, 1997 were added. On 26/27/28 July, 2003 he contacted Judicial Officer of Sialkot (eye witnesses) for recording their statements who apprised that they would make the statements after their judicial work. On 28-7-2003, he recorded statements of Rai Muhammad Naeem Kharl and Muhammad Tariq Civil Judges. On 30-7-2003, a Joint Investigation Team was constituted to investigate this case. He from time to time complied with the orders of the Investigation Team. On 31-7-2003, he with three members of the Joint Investigation Team and Muhammad Boota A.S.-I.
Visited the place of occurrence. The Investigation Team headed by CW-2 Ghulam Muhammad Kalyar, the then DPO Kasur secured various articles P-36 to P-50 from the Hall-room and courtyard.
Of lady's barrack vide memo Exh.PY attested by him and Muhammad Boota A.S.-I. On the same date, he received news of death of Shehar. Yar Bokhari Civil Judge in Punjab Institute of Cardiology, Lahore. He paid visit there but dead body was not delivered to him and Mr. Muhammad Azam Saroya, the then Senior Civil Judge, Lahore passed orders, the copy of which is Exh.CW-1/15, restraining to perform post-mortem examination of the deceased at the instance of his legal heirs.
He got dispatched the sealed parcels of blood-stained cotton swabs in the office of Chemical Examiner, Lahore and in this respect recorded statements of Muhammad Azam Moharrar and Abdul Hafeez 1320/c. On 7-8-2003, he was summoned by the complainant in his Court who directed him for medical examination of P.W.32 Javed Iqbal Warraich Civil Judge. He drafted an application for issuance of MLC of the injured-cum-injury statement Exh.PDDD and Mr. Muhammad Inayat Gondal 'MIC, Sialkot passed orders for medical examination of injured who was examined by CMO of Allama Iqbal Memorial Hospital, Sialkot on the same date but result of the injuries was not declared. On 8-8-2003, he approached the same CMO and also collected report of Radiologist and thereafter, the CMO declared result of the injuries kept under observation. On 16-8-2003, complainant summoned him (I.O) and on his direction, he collected from P.W.16 Fateh Muhammad, Nazir Civil Court, Sialkot last worn blood-imbrued clothes of Shehar Yar Bokhari Shirt P-59, underwear P-60, Vest P-61, Pent P-62 and secured the same vide memo Exh.PJJ witnessed by. Allah Rakha and Muhammad Latif Naib Nazir (renounced P.Ws.). He recorded statements of these witnesses. On his return to the P.S. He delivered the secured articles to the Moharrar of the P.S. On the same date, members of Joint Investigation Team secured in his presence Shalwar of Salma Bibi (not produced as P.W., under trial prisoner and detained in Jail on the woeful day) vide memo Exh.PZ attested by him (I.0). On 11-9-2003, he submitted incomplete challan before the Court. He got dispatched last worn blood-stained clothes of Shehar Yar Bokhari in the office of Chemical Examiner, Lahore and on 12-9-2003, he examined Fida Hussain Moharrar and Abdul Hafeez/C in this respect. On 19-9-2003, after substitution of offence under sections 318/319/322 P.P.C., he submitted supplementary report under section 173, Cr.P.C. Before the Court. On 4-10-2003, he recorded statement of Muhammad Akbar A.S.-I. Regarding service of non-bailable warrant of arrest and proclamation issued under section 87/ 88, Cr.P.C. Against Zulfiqar Ali Virk Inspector Police. On 15-10- 2003, he joined investigation of this case before Investigation Team at Okara and produced before them three pages of log book of wireless record of station P.S. Sialkot dated 25-7-2003, P-51/1-3 which were secured by the Investigation Team vide memo Exh.PAAA. He also produced record/detail of incoming and outgoing calls in respect of Mobile Phone No.6200293 P-52/1-19, of Mobile Phone No.6121200 P-53/1-31, of Mobile Phone No.9694546 P-54/1-7, of Mobile Phone No.9619481 P-55/1-6, of Mobile Phone 8607592 P56/1-20, of Mobile 8604620 P57/1-4, of Mobile Phone 9408856 P-58/ 1-5 pertaining to month of July, 2003 which were secured by the Investigation Team vide recovery memo Exh.PBBB. These memos were attested by Qadir Khan S.I. (Investigation) and Ghulam Sarwar. Constable. On 18-10-2003, he submitted report against Zulfiqar Ali Virk accused under section 512 Cr.P.C. On 30-10-2003, he obtained non-bailable warrants of arrest against Moazzam alias Moji accused from the court and entrusted to Akbar Hayyat A.S.-I. For service. On 31- 10-2003, he recorded statements of Moharrar Sardar Ali and Abdul Hafeez/C. On 4-11-2003, he have had issued proclamation under section 87/88 Cr.P.C. Against Moazzam alias Moji and delivered to Akbar Hayyat A.S.-I. For affixation. On 15-11-2003, he recorded statement of said Process Serving Officer regarding mode of service of the process. On 18-11-2003, he prepared report under section 512 Cr.P.0 against Moazzam alias Moji accused and submitted the same before the Court. On 10-4- 2004, he appeared in the court. Pre-arrest bail of Zulfiqar Virk was declined who on 12-4-2004 joined investigation with him, arrested and availed his physical remand till 19-4-2004 and on 15-4- 2004, produced him in custody before Joint Investigation Team at Kasur. On 18-4-2004, as per direction of Investigation Team, he prepared report under section 173 Cr.P.C. Of Zulfiqar Ali Virk (then P.0) by placing name in Column No.II with blue ink. He drafted applications Exh.CW-1/16 to Exh.CW-1/19 for sanction of prosecution of Jail Staff and Police Officers.
4. Muhammad Yousaf Ojla, the complainant P.W.38 made his written statement Exh.CW-2/1 on 27- 7-2003 supplementing to the F.I.R. As at the time of registration of the case on account of assassination of 3 learned Civil Judges as well as seriously causing injuring to 3 learned Civil Judges (his colleagues), he was in deep niggled, perplexed and on account of unrest, he could not mention some important aspects of the case while recording the F.I.R. And now he has narrated these facts: that after about an hour, he came out of the Barrack No.8, reached in the room of Superintendent Jail where learned District and Sessions Judge was present who directed him that then DIG Gujranwala Police (Malik Muhammad. Iqbal)/respondent was commanding the situation, to intimate him that without prior permission of the learned District and Sessions Judge and the Hon'ble High Court, Lahore police shall not take any action to get the sieged learned Judge released because in all circumstances, the Judges be tried to set at liberty in a safe way.. No action shall be taken without permission of Hon'ble Lahore High Court and if an action at all was necessary, then the only action shall be carried out through the Army Commandos but none else, despite this fact, the DIG Malik Muhammad Iqbal of his own took action and firing was started who, in this way, made recalcitrancy to the orders of the learned District and Sessions Judge as well as Hon'ble Lahore High Court, Lahore. The Elite Force deployed for operation, did not know personally the learned Judges because of the same, the operation cannot be termed as "rescue operation but it was onslaught" in death of 3 learned Judges at the spot and three sustained serious injuries.
The entire, incident was on account of the command of DIG Malik Muhammad Iqbal, District Police Officer Amjad Javaid Saleemi and others, therefore, offence under section 6/7 of the Anti-Terrorism Act, 1997 may be added to the F.I.R.
5. On 29-7-2003, I.G. Punjab Police constituted an Investigation Team headed by Tariq Saleem Dogar DIG Sheikhupura Range, CW.2 Ghulam Muhammad Kalyar, the then DPO Kasur, Umar Farooq Bhatti DSP Chuhang and Muhammad Younas Butt DSP Okara as its members. One of the members of the Investigation. Team, Ghulam Muhammad Kalyar DPO has been examined as CW.2. As per his version, on 31-7-2003, the Members of the Joint Investigation Team started investigation of this case at Sialkot. On that day, they inspected the spot in District Jail, Sialkot in presence of CW.1 and Muhammad Boota A.S.-I. They secured various articles P-36 to P-50 (fully narrated in his statement and the recovery memo) vide memo Exh.PY attested by CW.1 and Muhammad Boota A.S.-I. They also recorded statements of 21 under-trial lady prisoners included DW.1 Khalida and Nasreen Akhtar Lady Warder of the Jail, who were in the ladies' barrack at the time of occurrence. Joint Investigation Team also recorded statements of P,W.37 Muhammad Safdar Deputy Superintendent Jail, Shaukat Feroze Superintendent Jail, Muhammad Saleem and Muhammad Siddique Warders.
The said Investigation Team also recorded statements of Khalid alias Taina (particeps criminis of the captors of this case and in other criminal cases), Mobeen Akbar, Amir Butt prisoners in the Jail on the day of occurrence. On the same day, the said Team arrested Ghulam Sarwar, Raja Muhammad Mushtaq, Assistant Superintendents Jail, Sialkot. On 1-8-2003, said Team visited District Jail, Sialkot and recorded statements of Dr. Zia-ul-Hassan, Medical Officer Jail, Nazia wife of Muhammad Aslam. Thereafter, the said Team visited Court of P.W.30 Ch. Zafar Hussain, learned Sessions Judge, Sialkot and there Ch. Zafar Hussain, Complainant, Pervaiz Iqbal Butt Special Judicial Magistrate, Abdul Rehman Awan, P.W.36 Muhammad Naeem Sheikh, Muhammad Saeed Rafique, P.W.31 Javed Iqbal Warraich (injured), P.W.32 Rai Muhammad Naeem Kharl, Civil Judges and P.W.33 Sebtain Abid Kazmi (injured), Special Judicial Magistrate, Ch. Munawar Hussain, President, District Bar Association were present who submitted their signed written statements and the same were reduced into writing under section 161 Cr.P.C. (by the said Team). On the same date, at Civil Rest House, Sialkot the said Investigation Team received written statements of Malik Muhammad Iqbal DIG, Amjad Javed Saleemi, DPO Sialkot, Raja Munawar Hussain DPO Gujrat and Muhammad Azam DPO Narowal which were incorporated in the body of police case diaries. The said Team also examined Mehmood Ahmad S.I., Qaiser Mehmood 223/C, Asghar Ali, Amjad Ali, Shabbir Anwar, Zafar Ullah, Shehzad Ahmad, Abdul Razzaq, Kamran Ali, Inam Ullah, Ghulam Sarwar, Qaiser Mehmood 1891/C members of Elite Force under section 161 Cr.P.C. On 2-8-2003, the Joint Investigation Team visited chamber of learned Sessions Judge, Sialkot and joined in investigation complainant, Pervaiz Iqbal Butt, Abdul Rehman Awan, Javed Iqbal Warraich, Tariq Mehmood learned Civil Judges-cum-Judicial Magistrates, Ch. Nazir Ahmad, learned AD & S Judge and the said J.I.T. Put them questions, obtained their answers (interview/clarification/interrogation) and in the light of the same, recorded their supplementary statements. P.W.34 Ch. Nazir Ahmad learned Addl. District and Sessions Judge, Sialkot submitted his written statement which was reduced into writing under section 161, Cr.P.C. The said Investigation Team visited office of C.W.4 Zahid Saeed DCO Sialkot and recorded his statement. Then on the same date, the said Investigation Team visited District Jail, Sialkot and recorded statements of P.W.Nisar Ahmad Electrician of the Jail under section 161, Cr.P.C. Statement of Akhtar Iqbal Assistant Superintendent Jail was recorded in body of police case diary. Thereafter, the Investigation Team visited office of Mian Naeem Javed, District Nazim, Sialkot and recorded his statement in police case diaries. In the last, the Investigation Team visited P.S. Civil Lines, Sialkot and recorded statement of Fayyaz Jail Contractor. On 3-8-2003, Muhammad Younas Butt, member of the Investigation arrested Akhtar Iqbal, Assistant Superintendent Jail accused. On 4-8-2003, the Joint Investigation Team conducted investigation of this case in Mayo Hospital, Lahore and recorded statement of Muhammad Riaz Warder of District Jail, Sialkot (injured) under section 161 Cr.P.C. Thereafter, the said Team visited office of P.W.27 Sarfraz Mufti, Acting I.G. Prisons, Lahore interviewed him and his written statement was obtained, thereafter, his written statement and explanatory statement were reduced into writing under section 161 Cr.P.C. Then, the said Investigation Team visited office of P. W.26 Abdul Sattar Aajiz DIG Prisons, Lahore and his written statement was reduced into writing under section 161 Cr.P.C. On the same date, the Team returned to Sialkot, joined in investigation Sikander Hayyat, Superintendent Jail and arrested him. On 5-8-2003, the said Team joined in investigation Muhammad Aslam S.-I.
And 9 other police personnel. Again the said Team visited District Jail Sialkot and recorded statements of Siddique alias Chuhi prisoner-of the Jail, Tahir Mehmood, Khalid Arshad Warder (injured), Delmar Hussain Warder, District Jail, Sialkot under section 161, Cr.P.C, On 6-8-2003, the said J.I.T visited office of DSP Investigation Sialkot and recorded statement of Mirza Bashir, Zulfiqar Ali Ghumman, Ikraam Ullah, Nazir Ahmad Ghuman and driver of learned Sessions Judge respectively, Maqsood Ahmad Ahlmad of Mr. Pervaiz Iqbal Butt SJM under section 161 Cr.P.C. On 7- 8-2003, the said Investigation Team generally interrogated the public and recorded supplementary statement of Mrs. Shah Jahan consort of Muhammad Azeem (under trial prisoner on the date of instant occurrence and on bail on the date of her examination). On 8-8-2003, the Investigation Team recorded statement of Zulfiqar Ali Virk and Nafees ul Rasool constable under section 161, Cr.P.C. On 9-8-2003, the said Investigation Team conducted Investigation at Civil Rest House, Sialkot and recorded statement of Ghulam Meeran. Then they visited District. Courts, Sialkot and recorded statement of P.W.20 Khawaja Awais Mushtaq, Advocate. The said Team visited then Jail Sialkot and recorded statements of Liaqat Ali, Arshad and Abid Jail Warders. On 11-8-2003, the Joint Investigation Team arrested Shahid alias Kala accused (being tried separately as juvenescent) and Riasat Ali, Abdul Aziz Jail Warders (accused facing the trial). On 13-8-2003, the Joint Investigation Team recorded statement of Kamran Javed Assistant District Attorney Sialkot.
On 15-8-2003, the Team visited office of CW.3 Fazeel Asghar DCO Gujranwala (Additional Secretary, Home Department, Govt. Of the Punjab on the date of instant occurrence) and recorded his statement. On 16-8-2003, Salma Bibi wife of Ahmad All (injured and under trial prisoner on the date of instant occurrence) produced her Shalwar P-67 before the Investigation Team which was secured vide memo Exh.PZ attested by CW.1 and Muhammad Boota A.S.-I. These marginal witnesses were also examined. On 17-8-2003, the J.I.T subdued Muhammad Hafeez Head Warder.
On 18-8-2003, the Team recorded statements of Muhammad Mehmood SI, Muhammad Iqbal/C and Mirza Bashir Ahmad. On 26-8-2003, statement of Muhammad Ishaq S.I. Police Station Civil Lines, Sialkot was recorded. On 28-8-2003, Muhammad Younas Butt Member of the Investigation Team produced Nazia alias Naju, Mirza Shabbir Baig, Siddique alias Chuhi, Tahir, Khalid alias Taina, Akhtar Ali (given up P.Ws.) before P.W.29 Sher Dil Mujahid Cheema learned Civil Judge-cum- Judicial Magistrate who recorded their statements under section 164 Cr . P. C . On 10-9-2003 , the Team directed CW.1 to submit incomplete report under section 173 Cr.P.C. In respect of 9 members of Jail Staff and Shahid alias Kala juvenile accused and name of Malik Iftikhar Hussain, Deputy Superintendent Jail was also mentioned with red ink in column No.II of the report as being proclaimed offender.
6. It seems relevant to mention here that accused Ch. Sikandar Hayyat Superintendent Jail Sialkot, Ch. Ghulam Sarwar, Raja Muhammad Mushtaq, Akhtar Iqbal, Assistant Superintendents Jail, Sialkot, Abdul Aziz, Riasat Ali, Muhammad Hafeez Jail Staff and Malik Muhammad Iqbal DIG were challaned by the police. Rest of the accused facing the trial including Malik Muhammad Iqbal DIG, Amjad Javed Saleemi, Raja Munawar Hussain DPOs and members of Elite Force Muhammad Mehmood S.I., Qaiser Mehmood 1891/C, Asghar All 1874/C, Amjad All 1859/C, Shabbir Anwar 1860/C, Zafar, Ullah 310/C, Shahzad Ahmad 1850/C, Abdul Razzaq 730/C, Kamran Ali 1397/C, Inam Ullah 1888/C, Ghulam Sarwar 716/C, Qaiser Mehmood 223/C were summoned to face the trial for the offences under sections 392/149, P.P.C. And Dr. Sajid Hussain accused was summoned to face the trial for the offence under section 319 P.P.C. Vide orders dated 19-1-2004.
7. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellants/convicts and their co-accused (since acquitted) to which they pleaded nonculpabilis and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charges.
8. At the trial, to prove its case, 45 witnesses in all were examined, out of them 39 witnesses were examined as prosecution witnesses, 4 were examined as CWs and 2 as DWs.
9. Learned PP by tendering in evidence reports of Chemical Examiner, Lahore Exh. PDDDD , Exh. PEEEE, Exh.PFFFF and that of Serologist Exh.PGGGG, Exh.PHUHH, Exh.PJJJJ and Forensic Science Laboratory, Lahore Exh.PKKKK, Exh.PLLLL and Exh.PMMMM closed the prosecution case. Thereafter statements of CW.1 to CW.4 were recorded.
10. Thenceforth statements of the convicts appellants and their co-accused (since acquitted) under section 342 Cr.P.0 were recorded wherein they gainsaid the evidence put to them.
11. Malik Muhamamd Iqbal, the then DIG/accused (respondent) while answering to the question "why this case against him", replied infra:- "I have been falsely and maliciously roped in this case against the actual facts and circumstances. Primarily, the F.I.R. Which was registered at the instance of one of a Judicial Officer who was posted as Senior Civil Judge, was against the Jail Authorities without an iota of allegation against any of the members of the police force. After the lapse of two days, the prosecution has taken a complete somersault and had arrayed myself and the others members of the Police Force responsible for the act committed in rescue operation. The rescue operation was also designated as killing operation without any authenticity or legality at their part. The whole prosecution case hinges upon supplementer), statement of the complainant wherein it was stated' that he was mentally upset and could not advance proper prosecution case while lodging the first information report. During the course of trial, prosecution failed to adduce cogent evidence with reference to actus reus or mens rea at the part of any police official while conducting the rescue operation.
The prosecution had concealed significant aspects of the case at the very outset especially the injuries sustained by two of the jail officials who were accompanying the Sessions Judge at the time of Jail inspection. The police action was in response to the telephonic call which was made by one of the Judicial Officers namely Muhammad Yousaf Ojla to DPO Sialkot and it is admitted fact that the police responded to the call without any delay and the immediate action was taken by the District hierarchy of police Sialkot. When the situation further deteriorated, I had no other option except to visit myself to take the control of situation. After my arrival at about 3.00 PM all possible efforts were made to pacify the situation with the help and concurrence of other officials including Police Officials, DCO and representative of public i.e. District Nazim etc. But the accused/hostage takers had not shown even a slightest scope of leniency in their attitude which was raging toward hostility and finally it attained its peak when they had demanded the provision of five Kalashnikov rifles with extensive ammunition, a bus having 72 seats, and they were also demanding to take away all the hostages i.e. Judicial Officers, women and children with them. This demand of the hostage takers could be easily assessed by one of their demand of providing them a bus of 72 seaters. When the demands as stated above were not fulfilled, they started committing the murder of hostage Judges and as a consequence one of the Judicial Officers namely Asif Mumtaz Cheema was done to death by placing pistol on temporal region.- There was every likelihood that this action of the hostage takers would be repeated soon after and the lives of about 48 persons were at the mercy of hostage takers who had previous criminal history of highest grade. During the course of negotiations, all possible efforts were made to procure the services of Army Commandoes. In this Regard, DCO. District Naseem and myself had talked to DCO. Sialkot who had expressed his inability to accede to our request. Hence, the police officials present there with their concurrence opted to launch rescue operation. It is also matter of highest importance that the action of launching rescue operation was declared justified by the Augustine Court of Pakistan while delivering judgment in this very case. The Augustine Supreme Court has also justified the operation with an observation that if this rescue operation would had not been launched the official present there would had been guilty of failure to perform their duty according to law."
12. Amjad Javed Saleemi and Raja Munawar Hussain DPOs (respondents) have also deposed on the same lines while answering the question why this case against them. For brevity sake, the same need not to be reproduced.
' Malik Muhammad Iqbal, the then DIG, Raja Munawar Hussain and Amjad Javed Saleemi, the then DPOs opted to appear as their own witnesses but later-on did not appear as witnesses. In this respect, their gainsaid statements are on record. However, they opted to lead defence evidence. In their defence, they produced DW.1 Khalida Bibi under-trial prisoner in District Jail, Sialkot during the days of occurrence and DW.2 Muhammad Akram Naib COurt of Mr. Pervaiz Iqbal Butt, SJM, one of the captives of this case in Jail precincts, Sialkot.
13. In response to the same question, Mehmood Ahmad, S.I. Incharge Elite Force (respondent) deposed as:- "I have been falsely involved in this case. On the day of alleged occurrence, Sessions Judge visited the jail premises against the standing directions of Hon'ble Lahore High Court, Lahore as visit of such a large number of Judges in the jail is neither permissible nor directed by the Hon'ble Lahore High court, Lahore and soon after their arrival in jail, one of the captors assaulted upon Sessions Judge with pistol and the bullet hit to Jail Head Warder, so the situation inside the jail became tense and emergency was declared in the Jail. Thereafter, Incharge Elite Force received orders by the High-ups through wireless to reach District Jail, Sialkot alongwith all the members of Elite Force posted at Sialkot. The members of the Elite Force of Gujrat, Gujranwala and Narowal also reached there. The members of Punjab Police of different Police Stations were already present there. The situation in the Jail premises became more critical from time to time and sensitive when a bullet was fired from inside the lady's barrack on the occasion of bringing of mother of Munir accused/captor on the wall of roof of lady's barrack_ The authorities who were present in the Jail premises made their best efforts to cool down the master and over powered the situation, but unfortunately, the matter was becoming un controlled in every passing moment. Best efforts were made to arrange the service of Army Commandoes and due to non-availability of the Army Commandoes, there was no other agency available except the Elite Force which is also trained by SSG (Special Services Group) by the Army Commandoes. The members of the Elite Force were fully aware of the identity of the captors and the Judges as well. There was no malice or on the part of the members of Elite Force towards the hostage Judges. The rescue operation was started when the captors fired at the hostage Judges and one of the hostage Judges Mr. Asif Mumtaz Cheema was killed by the captors and then there was no option for the authorities except to pass an order to start the rescue operation, therefore, orders were passed to the Police Officers who were already alerted all around the lady's barrack to rescue the hostages. All the members who participated in the rescue operation were wearing oxygen masks and bullet-proof jackets. After the rescue operation, majority of the hostages were safely rescued but unfortunately the hostage Judges were hit by the firing of the captors as .The captors had already pointed their pistols upon them. The hostages were precious personalities for the hostage takers and said hostages were directly under the control of captors, so they (captors) made them their first victim to terrorize the authorities to force them to fulfil their demands and to save their own lives. I was not named in the as accused, even in the subsequent supplementary statements of the complainant; my name was not mentioned as accused. However, I was summoned by the Court to face the trial. Even, I was never challaned throughout by the police as my statement was recorded under section 161 Cr. P. C. As the eye-witness of the occurrence. None of the P.W. Has specifically named and pointed out me in this case. No injury to any deceased or p. Ws. Is attributed to me. Even otherwise, no request was made by the prosecution to arrange the identification parade in this case which was important piece of evidence to prove the guilt of the accused in the cases where the accused is not nominated in any manner. To evaluate the cause and manner of death, internal postmortem examination is extremely essential but the same was forbidden by the orders of Sessions Judge, Sialkot to save his skin as a precautionary measure because soon after the occurrence, it was the talk of the town that the Sessions Judge was the main responsible person of the occurrence. The example of P.W. Muhammad Akram 1167/C to whom the Sessions Judge and the complainant forced him to depose against the true facts and after all sort of over doings, he has been declared guilty in this case. I have been made scapegoat in this case."
14. Rest of the members of the Elite Force (respondents) participated in the instant police operation namely Qaiser Mehmood 1891/C, Asghar Ali 1874/C, Amjad Ali 1859/C, Shabbir Anwar 1860/C, Zafar Ullah 310/C, Shehzad Ahmad 1850/C, Abdul Razzaq 739/C, Kamran Ali 1397/C, Inam Ullah 1888/C, Ghulam Sarwar 716/C and Qaiser Mehmood 223/C also deposed in line with his above said accused namely Mehmood Ahmad S.I. None of them opted to lead defence evidence or to appear as their own witness on oath.
15. Ch. Sikander Hayyat, Superintendent Jail, Sialkot (respondent) in reply to the same question answered as follows:-- "I am innocent and was involved in this case being a Superintendent of the Jail. Though, admittedly, I was on my casual sanctioned leave from 22-7-2003 to 27-7-2003. Due to un expected result of the rescue operation, the Investigation Agency has shifted the burden upon me to save the skin of their colleagues."
16. Akhtar lqbal, Assistant Superintendent Jail, Sialkot (respondent) while answering to same question replied as under:- "I have been falsely implicated in order to suppress my eye account of the occurrence. I was an eyewitness to the occurrence. My statement was not recorded by the Investigation Team and by the Investigation Officer exactly. After the occurrence, I remained performing duty and was not suspended. I associated all the investigations of this case and briefed the Joint Investigation Team headed by Ghulam Muhammad Kalyar, Investigation Team constituted by Chief Minister of Punjab. Facts Finding Commission constituted by the Hon'ble Lahore High Court, Lahore and apprised them of the true facts of the case. Some of those bitter facts were in conflict with interest of Senior Officers, so with aim to screen my evidence, I was later on implicated in this case as an accused. For that very reason, on 31-7-2003, my statement was not recorded by the Joint Investigation Team while my other colleagues/officers of the Jail were examined on said date by the said Team. Meanwhile, I was forced from' different corners to make the statement in line with their demands and that course would be beneficial to myself. One of the main demands was to make the statement that before commencement of operation, the captors had murdered one of the Judicial Officers but I refused to do so claiming that with the grace of God Almighty my life was saved in this occurrence. Due to non surrendering to this demand, I was implicated in this case. I am not at all involved in any abetment, conspiracy of this occurrence or the occurrence itself. I am completely innocent and have been falsely involved in this case and the main occurrence had taken place in the interior of the Jail."
17. Ghulam Sarwar, Assistant Superintendent Jail, Sialkot (respondent) to answering the same question deposed as follows:- "I have been falsely implicated in order to suppress my eye account of the occurrence. I was an eye-witness to the occurrence. My statement was not recorded by the Investigation Team and by the Investigation Officer exdctly. I am not at all involved in any abetment, conspiracy of this occurrence or the occurrence itself. I am completely innocent and have been falsely involved being a jailer and the main occurrence had taken place in the interior of the jail and the occurrence was exclusively the responsibility of High Executive of Division and District Gujrat and Sialkot. My statement under section 161, Cr.P.C. Was not recorded verbatim and I was not cited as eye-witness in order to suppress my evidence of the main occurrence. I was seriously injured at the hands of the captors/ prisoners who assaulted me when" attempted to rescue and save/guard the Judges and I remained under treatment in the hospital for about a week."
18. Raja Mushtaq, Assistant Superintendent Jail/appellant pro-convicto while answering to the same question stated as under:- "I am innocent and also the eyewitness of the whole occurrence and due to unexpected result of the rescue operation by the police, I have been implicated in this case as accused to share the burden of police party by the Investigation Agency. In fact, I did no active role in the participation of the occurrence and being Day Officer of the Jail on the fateful day, I have been made scapegoat in this case."
19. Muhammad Hafeez Head Warder/ appellant (convict) has answered to the question about his implication in this case in the following words:-- "During the course of evidence recorded against me, no independent incriminating evidence had come on record against me. However, I have been implicated in this case to fulfil the lacuna in the case of the prosecution. In fact, there is no negligence, slackness and misconduct on my part. I have about 24 years' service in my credit and in the whole of my career, there is no penalty awarded to me throughout my service Regarding any negligence. Unfortunately, on the alleged date of occurrence, I was performing my duty, otherwise I did nothing wrong while performing my duty. The Investigation Officer let off two Warders Mohsin and Muhammad Jameel who were also present on duty at that time as Muhammad Jameel Warder was independent officer who used to bring luggage of prisoners inside the Jail from the canteen on handcart, for that he was himself responsible."
20. Riasat Ali Head Warder and Abdul Aziz Warder (respondents) have also stated on the same lines while answering to the same question.
21. All the accused persons/members of Jail Staff opted not to appear as their own witnesses. They all except Akhtar Iqbal had not led any defence evidence. Akhtar Iqbal accused led in his defence documents Mark-A to Mark-J, educational testimonials and other distinction certificates issued in his favour.
22. Dr. Salid . Hussain, Surgeon Allama Iqbal Memorial Hospital Sialkot (respondent) by answering to the same question replied as under:-- "A wider net has been thrown. It has been declared by the Augustine Supreme Court of Pakistan that my case is on better footing than Dr. Tahir Bokhari who has not been summoned by this Court, as there was no sufficient incriminating material against him."
' He had not appeared in witness box as his own witness. However, he produced attested copy of out-door patient ticket of Shehar Yar Bokhari, Ex.DO, attested copy of record of Surgical Unit Exh.DP (four pages), attested copy of register of Surgical operations performed Exh.DQ (four pages), photo copy of record of operation register of Surgical Unit-H Exh.DR (four pages), attested copy of record of Blood Transfusion of Shehar Yar Bokhari Exh.DS, attested copy of donor list Exh.DT (two pages), attested copy of letter of EDO Health Exh.DU and attested copy of exoneration order from departmental inquiry Exh.DV.
23. Learned trial Court after evaluating the entire material before it, chiefly trifurcated it as follows:-
(i) Ocular Account.
(ii) Medical Evidence.
(iii) Recoveries.
24. On the conclusion of trial, the Court has recorded its tow ensemble in chronological paragraph Nos.109 to 113 of the judgment as follows:--
(709) The Police Officers and the Members of Elite Force are not nominated in F.I.R. The prosecution witnesses in their statements have not named any of the Members of Elite Force who participated in the instant occurrence. As per complainant version, the police operation commenced when parleys ended in smoke. From the above discussion, it is fully established that none of the Police Officers or Members of Elite Force had any mens rea or actus reus for causing death of any of the Judicial Officers or the captors of this case, injuries to the injured P.W. The police party was summoned by the complainant in jail premises for rescue operation. The police operation for all practical purposes and intents is rescue operation and not a killing operation. The police operation was launched after positive efforts for utilizing services of Army Commandoes as ordained by Hon'ble Lahore High Court, Lahore but Army Commandoes and GOC were not available. Except DIG, Malik Muhammad Iqbal, none of the Police officers or members of Elite Force was challaned. As such, the prosecution has failed to establish any -of the charges levelled against them.
(110) Charge of Criminal conspiracy or abetment or criminal negligence against Sikander Hayyat, Ghulam Sarwar, Akhtar Iqbal, Riasat All Head Warders and Abdul Aziz Warder is not established.
Raja Mushtaq Ahmad and Muhammad Hafeez Head Warder are also not -involved for the offence of criminal conspiracy or abetment. However, prosecution lu s succeeded to establish the charge of their criminal negligence, facilitating the captors for launching murderous assault upon Sessions Judge and wrongfully confining the Judicial Officers in the lady's barrack on the fateful day followed by Qatl-e-Amd of Asif Mumtaz Cheema, Shahid Munir Ranjha, Sagheer Anwar at the hands of captors.
(111) The prosecution has also failed to establish charge of criminal negligence against Dr. Sajid Hussain.
(112) Accordingly, I hold guilty Raja Mushtaq, Assistant Superintendent Jail and Muhammad Hafeez Head Warder for offence of concealing designs of the captors to launch murderous assault upon Ch. Zafar Hussain Sessions Judge and for commission of wrongfully confining Judicial Officers Asif ,Mumtaz Cheema, Shahid Munir Ranjha, Sagheer Anwar, Shehar Yar Bokhari, Javed Iqbal Warraich, Muhammad Naeem Sheikh in the lady's barrack followed by Qatl-e-Amd of Asif Mumtaz Cheema, Shahid Munir Ranjha, Sagheer Anwar at the hands of the captors and accordingly convict them under section 119, P.P.C. Read with section 324, P.P.C. And sentence each of them to undergo R.I. For five years and also impose a fine of Rs.10,000 by each. In default of payment of fine, each defaulter will further undergo S.I. For two months. Each of them is also convicted for the offence under section 119, P. P. C. Read with section 342, P.P.C. (under fifth head of the charge, as the captors could not kidnap the Judicial Officers and commit offence under section 365, P.P. C.) and each of them is sentenced to undergo six months' R.I with fine Rs. 1500 and in default of the same, further S.I. For 15 days only. Each of them is also convicted for the offence under section 119, P.P. C.
Read with section 302, P.P.C. And 7(a) of the Anti-Terrorism Act, 1997 (they have been charged under seventh head of Qatl-e-Amd of the deceased persons under :section 109, P. P. C. Read with section 302, P.P.C. And 7(a) of the Anti-Terrorism Act, 1997 and punishment provided under section 119, P.P.C. Under the same chapter V of conspiracy is lesser than the offence provided under section 109 P.P. C.) and sentenced on three counts to undergo R.I for 10 years. All these sentences shall run consecutively. Benefit of section 382-B, Cr. P. C is also extended in favour of the convicts.
The convicts are acquitted from rest of the charges. Both of them are in custody and their custody is handed over to the Superintendent Jail, Gujranwala to serve the sentence in accordance with law. Copy of the judgment supplied to the convicts and learned PP for the State' with the intimation that the former can file an appeal against this conviction judgment within seven days from today.
(113) Accused Malik Muhammad lqbal, Amjad Javed Saleemi, Raja Munawar Hussain DPOs, Qaiser Mehmood 1891/C, Asghar Ali 1874/C, Amjad Ali 1859/C, Shabbir Anwar 1860/C, Zafar Ullah 310/C, Shehzad Ahmad 1850/C, Abdul Razzaq 730/C, Kamran Ali 1397/C, Inam Ullah 1888/C, Ghulam Sarwar 716/C, Qaiser Mehmood 223/C, Muhammad Mehmood S.I., members of Elite Force, and Dr. Sajid Hussain are acquitted from all the charges. They are on bail, their sureties are discharged from the surety-bonds. Accused Sikander Hayyat Superintendent Jail, Ghulam Sarwar, Akhtar lqbal, Assistant Superintendent Jail, Abdul Aziz, Riasat Ali, the Jail Staff, are also acquitted from all the charges. They are in custody, be released forthwith if not required in any other case.
(114) Co-accused Malik Iftikhar Hussain, Deputy Superintendent Jail, Zulfiqar Ali Virk Inspector Police and Moazzam alias Moji are Proclaimed Offenders. Their trial will commence on their arrest and for that purpose, perpetual warrants of arrest be issued against them. Case property be kept intact for their trial."
25. The submissions made by the parties ad-barram in their respective appeals are jotted down hereunder:--
26. Syed Ghulam Abbas Bokhari, Advocate on behalf of appellants in Criminal Appeal No.78 of 2007 against acquittal filed by him and others on behalf of aggrieved legal heirs of the deceased Civil Judges seeking reversal of acquittal to conviction of all the respondents and for maintaining as well as for enhancing conviction and sentences imposed to Raja Mushtaq Ahmad and Muhammad Hafeez convicts, has argued that place of occurrence, presence of the accused persons, firing made by the police officials/ accused persons causing death of eight persons at the spot, have not been controverted rather even in the statements of the accused recorded under section 342 Cr.P.C, the incident has been admitted; prosecution case hinges upon the statements of eye-witnesses namely Zafar Hussain, learned District and Sessions Judge, Sialkot, Muhammad Yousaf Ojla, then learned Senior Civil Judge, Rai Naeem Ahmad Kharl, Sheikh Naeem Ahmad, Sebtain Raza Kazmi, the learned Civil Judges/Judicial Magistrates and Ch. Nazir Ahmad, then learned Addl. District and.
Sessions Judge, the latter three Civil Judges are injured eye-witnesses in the case, therefore, their presence at the spot cannot be denied. Added further that presence of police contingency at the time of occurrence at spot is not in dispute; convicts Raja Mushtaq, Assistant Superintendent Jail, Muhammad Hafeez Head Warder had in fact facilitated and conspired the main occurrence by let losing the firers/five convicts/captors and the quantum of sentence imposed upon them is absolutely inadequate because they are very much connected right from the genesis of occurrence upto its accomplishment; quantum of sentences imposed upon them under the penal sections otherwise are not in accordance with law because when court came to the conclusion that offences have been proved, then it was incumbentory for the court to impose maximum sentence as normal penalty provided under the particular provisions of law. Learned trial court has not assigned any reasons for inflicting lesser sentences. Learned counsel in this respect has relied upon:--
(i) Bundoo v. Mukhtar Ahmad (PLD 2004 SC 379)
(ii) Shamand and others v. The State (1991 PCr.LJ 833)
(iii) Muhammad Nawaz v. The State (1991 PCr.LJ 156)
(iv) Abdul Sattar v. Sher Amjad (2004 YLR 580)
(v) Farrukh Sayyar and others v. Chairman NAB, Islamabad (2004 SCMR-1)
' It has been pointedly mentioned that on day of occurrence i.e. 25-7-2003 Raja Mushtaq as being the DAY Officer and Muhammad Hafeez as Head Warder having key of the Football Factory of the Jail where the culprits/captors were imprisoned as convicts had let them out unchecked knowingly that convicts may involve in criminal activities, thus, committed grave criminal negligence; owing to their negligent acts, the occurrence took place which could easily be avoided.
' Learned counsel has submitted that investigation carried out by the Joint Investigation Team was not fair and impartial; the fact of criminal machination perpetrated by the captors inside jail had been brought to the notice of the Superintendent Jail much earlier to the happening of instant incident; the Joint Investigation Team has not gone to the roots of the case in collecting the evidence for bringing the truth on record rather kept on devicing to provide benefit to the fellowmen but even that the learned trial court should have less bothered to the outcome of investigation and it should have been believed and relied upon the P.Ws. Especially who were arbiters. Learned counsel added that any lapse in the investigation cannot be taken more significant vis-a-vis the ocular testimony. On it as ace, it has been contended that investigational results may be ignored and reliance imperatively has to be made on the ocular testimony.
27. By taking the aspect of investigation, learned counsel has argued that investigator in order to blight and for its perdition has cited the culprits as P. Ws. In the case. He has also referred to certain instructions laid down in rule 602 (ii) and 604 framed under the Prisons Act, 1894 to meet with the situation of disturbance, outbreak intramural jail, and modus operandi to deal with such situations by the jail authorities and in case jail authorities (establishment) was not in a position to cope with such situation, how help of outsider forces can be sought to meet it and the guidelines have been provided in rules ibid. It has also been added that all rules have been infringed; how right of self- defence had occurred in favour of operational force? Or how case of the accused persons would come within the general exceptions of Pakistan Penal Code, 1860 when none of them has received single scratch and even their uniforms were not torn. He has relied upon following cases:--
(i) Bundoo v. Mukhtar Ahmad (PLD 2004 SC 379)
(ii) Dildar Hussain v. Muhammad Afzaal alias Chala and others (PLD 2004 SC 663) and
(iii) Waris Khan v. The State (2001 SCMR 387).
' Further submitted that according to section 5 of the Anti-Terrorism Act, 1997, pre-cautions are to be taken pre-operation, the same were not adhered to by the operational force nor any reason has been assigned for its non-observance; that it is "open and shut" through evidence of the prosecution that no instructions were passed to the then DIG either in writing or per bouche by the High Court or from the Incharge of Prisons as well as by the learned Sessions Judge P.W.30 to launch operation; all Judicial Officers were empty handed and so far as captors convicts/ deceased are concerned, there is nothing on record that they ever opened attack before the operation commenced by the respondents accused persons and if none from the captors made any attempt to cause any harm to the force then how a right of self-defence is said to have accrued in favour of the police when there was no apprehension of imminent danger at the hands of the captors and in this connection, he has relied upon following precedents:-
(i) Feroz Khan v. The State (PLD 1960 SC 344)
(ii) Ram Rattan and others v. State of U.P (AIR 1977 SC 619)
(iii) Qazi Siraj ud Din v. Misbahul Islam (PLD 1977 SC 14)
(iv) Ahmad and others v. The State (PLD 1971 SC 720)
(v) Toti Khan v. The State (2002 SCMR 1607)
(vi) Muhammad Fazil v. Settlement and Rehabilitation Commissioner, Rawalpindi and others (1981 SCMR 185)
(vii) Mst. Fatima v. Sardara (PLD 1956 Lahore 474)
(viii) Ahmad v. The State (1971 Law Notes 565)
28. Mr. Bokhari has submitted that Sarfraz Mufti A.I.G. (Prisons) P.W.27 was of the view that there was no need for the operation, then why operation was ensued by the police officers, in this respect, he has also referred to the statement of P.W.16 Khawaja Awais. Learned counsel has referred to and relied upon certain exceptions made available in the Pakistan Penal Code, 1860, referred to section 52, P.P.C. Wherein the word "good faith" has been explained and in order to further interpret the same, it has been submitted that it is paramount condition to be undertaken by the Law-Enforcing Agencies before commencing any such operation that all due care and caution should have to be made so that no person may lose life during operation. Learned counsel has referred to sections 127 to 132 of Criminal Procedure Code, 1898 to elaborate this proposition of law. Preliminarily in respect to the burden of proof, learned counsel has referred to Art. 121 of the Qanun-e-Shahadat Order, 1984 that once an accused person takes specific plea, then burden of proof tilts/lies upon him and in this case appellants/ convicts and the respondents-accused remained fizzle out in discharging liabilities imposed by said Art.
121. Learned, counsel has also explained word "good faith" through section' 3(20) of the General Clauses Act, 1897 and submitted that simply for the time being, it can be said, when operation was not inevitable in order to rescue either to the captors deceased and captives Judicial Officers, then why it was mounted; the precaution. Mandated by section 43 of P.P.C. Had been infringed by the operational force.
29. Learned counsel has quoted section 72 of the Pakistan Penal Code, 1860 and commented that judgment either of acquittal or conviction shall be well reasoned and if an accused is convicted then it is mandatory upon learned punishing Court to mention specific provisions of law under which the accused is convicted and sentenced; in this regard learned counsel has cited judgments reported as:-
(i) Abdul Sattar v. Sher Amjad (2004 YLR 580),
(ii) Farrukh Sayyar and others v. Chairman, Nab, Islamabad (2004 SCMR 1)
(iii) Shahmand and others v. The State (1991 P.Cr.L.J. 833)
(iv) Muhammad Nawaz v. The State (1991 PCr.LJ 156).
' By challenging the vires of the judgment, learned counsel submitted that it is non-reasoned judgment and this illegality even otherwise cannot be cured under sections 536 and 537 of Cr.P.C.
30. Again learned counsel has importunated upon certain aspects of legal terms "good faith" and "wilful" by placing reliance upon:-
(i) Queen Express v. Subba Naik (ILR 1898 Criminal 249
(ii) Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445)
(ii) Jamat-i-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111) and
(iii) Mehram. Ali and others v. Federation of Pakistan' and others (1998 SCMR 1156) ' and then has developed his arguments that if an incident is insight or operation is required to be made inside jail, then what prerequisites, cautions and cares were required to be undertaken before it and who would be competent to direct its commencement. Learned counsel further submitted that in case in hand A.I.G. (Prisons) P.W.27, learned District and Sessions Judge P.W.30 were present there had explicitly issued directions not to open operation, then why it was initiated on rescual subterfuge of hostages; further submitted that in fact it was not rescual operation but it was a destructive massacre and the police along with their co-accused have played havoc with the lives of innocent persons, some of whom came out of the lady's barrack raising up their hands and has referred to scaled site plan of the place of occurrence Exh.PTT/1 and lucidly referred to Point-L and M where dead bodies. Of Rafique and Ejaz captors were found and if they came out from the barracks seeking help, then why they were fired at and in this respect has relied upon Ali Khan v. The State (2010 PCr.LJ 11 (d). Added that it was not the case of the prosecution that captors .On the day of incident actually had made any attempt to flee away from the jail and even dialogues were continued and no order was given by higher hierarchy of the jail Authorities i.e. A.I.G.
(Prisons) to carry out operation for the rescual of the captives Judicial Officers. 'Learned counsel in this respect has referred to the statement of Fazeel Asghar CW-3 and has relied upon Art. 155 of the Police Order, 2002 Clause (d) which for the better understanding is reproduced as follows:- S.
155. Penalty for certain types of misconduct by police officers.--
(1) Any police officer who:- ' Is guilty of violation of duty.
(1) (g) , (h)
' Shall, on conviction, for every such offence be punished with imprisonment for a term which may extend to three years and with fine.
(2) Prosecution under this Article shall require a report in writing by an officer authorized in this behalf under the rules. Learned counsel has strengthened his arguments through precedents Cases reported as:-
(i) Ganapathia Pillai and another v. The State (AIR 1953 Madras 936)
(ii) M. Jamil Asghar v. Rawalpindi Improvement Trust (PLD 1962 W.P. (L)-558)
(iv) N. Subramania lyer v. Official Receiver Quilon and others (AIR 1958 SC 1)
(v) Abdul Rashid v. Mst. Safia Bibi (PLD 1986 FSC 10)
(vi) Mushtaq Ahmad Gurmani v. Z.A,. Suleri and others (PLD 1958 W.P.(L) 747)
(vii) Haji Mahmood Khan Doulat Khan v. Emperor (AIR 1942 Sind 106).
' Learned counsel has also pointed out provisions of Code, 1860 commencing from 76 to 81 wherein except section 80 word "good faith" has been mentioned, scilicet proper care and caution and referred to Prison Rules Nos.602 to 604, venerably, submitted that instant case can be bifurcated as i.e. One portion primarily relates to the killing of the Judicial Officers whereas the other for killings of convicts captors. In this background, it has been argued that why the Judicial Officers were done to death as it is nowhere on the record that captors desired/intended or had conspired to kill the judicial officers and even it is not the case that the captors on the day of occurrence made any effort to jail breakout; that five pre requisites have been laid down in rule No.602 ibid and if any operation is inevitable then those rules were required to be complied with before operation which were made derelict; referring to sections 127 to 132 of Cr.P.C., it has been submitted that even case of respondents accused do not fall within the general exceptions what to describe about special exceptions and special plea taken by them. Learned counsel has submitted that site plan and the exhibited documents of the prosecution relied upon by the defence itself militate the assertion/stand of the defence and defence cannot escape of it. Even otherwise, place of occurrence cannot be doubted because blood stained earth, crime empties and other articles were taken into posession from the spot by the I.O. Duly pointed out in scaled site plan; that the action/mannerism through which it was made and conducted is nothing except aggression committed by the respondents; those persons were bound to protect the lives and properties of the people, have become assassins of the innocent souls. Learned counsel has also relied upon rule 610, pointing out as to who can order for removal of turbulence; has referred to continuum paragraph 57 of the impugned judgment and has criticized that conclusion allegedly drawn by the learned trial court to provide benefit to the respondents is not borne out from the record. In this respect, he has referred to the cases reported as:-
(i) Zahid Akhtar v. Govt. Of Punjab thiough Secretary, Local Government and Rural Development, Lahore and others (PLD 1995 SC 530)
(ii) Mehram Ali v. Federation of Pakistan (PLD 1998 SC. 1445)
(iii) Mir Muhammad v. S.H.O. Police Station Abad and others (2000 PCr.LJ 913)
(iv) Chaman Lal v. Emperor (AIR 1940 Lahore 210)
(v) Ganapathia Pillai and another v. The State (AIR 1953 Madras 936)
(vi) Muhammad Ismail and others v. The State and others (PLD 1970 K-261)
(vii) Ashraf Ullah Khan and another v. The State (2003 PCr.LJ 872)
(viii)Jahir Mia and others v. The State (PLD 1963 Dacca 47).
31. It has been contended that Ch. Zafar Hussain P.W.30 was maligned and was tried to be involved in this case by tampering/forging/fudging the police case diaries, in this regard, learned counsel has diverted attention of the court that all the eye-witnesses had produced their signed written statements before J.I.T, in the office of P.W.30 on 1-8-2003 but those statements were substituted by the statements under section 161, Cr.P.C. By the investigating agency on account of ulterior motives as the respondent DIG, at that time, was holding post of Regional Police Officer, Range Gujranwala and the investigation team was working under his direct supervision; investigational mala fide proved when on confrontation, the eye witnesses refused to accept those statements purported to be recorded under section 161, Cr.P.C. And submitted that those are not available on record. It has further been argued that signing of statements under section 161, Cr.P.C. By P.Ws. May be an irregularity but not an illegality. By destroying the written statements of these P.Ws., the whole case of prosecution has been tried to be plighted. Learned counsel has relied upon following precedents to orchestrate his arguments that signed statements under section 161, Cr.P.C. Do not mar the statement of P.Ws.
(i) Zahid Sohail Sattar v. The State (1998 PCr.LJ 1795)
(ii) Mukhtar Ahmad v. The State (1986 PCr.LJ 1252)
(iii) Ghulam Rasool and Rasoola v. State (1987 PCr.LJ 455)
(iv) Nazar Muhammad v. Mushtaq Ahmad (PLD 1996 Lahore 277)
(v) Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53)
(vi) Sadiq v. The State (PLD 1972 Lahore 596) and
(vii) Ahmad v. The State (1971 Law Notes 565)
32. Learned counsel labelling it a, killing operation and to establish it, has referred to the statement of P.W.20 Khawaja Awais Mushtaq available at page No.336 of the paper. Book, statement. Of Javaid Iqbal Warraich, the injured Civil Judge examined as P.W.31 available at page Nos.398, 409 and 411, then argued that ' these pages of the Statement categorically establish that firing was firstly made by the operational team and due to its firing, P.W.31 rescued him by breaking the wall of lavatory of the ladies' barrack, Shehar Yar Bokhari when was in the process of coming out from the said barrack, in presence of P.W.31, he was fired at by the police party. Similarly, two other persons namely Ejaz and Rafique identified as captors also came out of the barrack empty- handed who were done to death on the orders of DIG/respondent Malik Muhammad Iqbal. Learned counsel has again read page. No.411 when the DIG intentionally mislocated certain locations while getting prepared the site plan and has further elaborated that P.W.31 stated that DIG and his staff treated them as ducks in the barrack; P.W.31 has categorically answered that his statement produced in the written shape duly signed by him dated 1-8-2003 has been spoiled by the police to damage the prosecution case. Learned counsel submitted that had statements been available on record which were presented in the written shape, then-the situation of the prosecution case would have been different. And those statements could prove the operation as killing operation.
'Facing arguments, it was considered expedient to peruse the police case diaries, the same have been found bound in five volumes (1 to 5) and their perusal, said statements as alleged have not been available. Learned counsel ecchymosisly argued that Hon'ble Lahore High Court, Lahore, the Addl. I.G (Prisons) Sarfraz Mufti and immediate judicial head of the District Judiciary Ch. Zafar Hussain, all were of the view that operation should not be carried out because of its non- inevitability for the nonce and if needed be, Then as ordered by the Hon'ble Lahore High Court, Lahore, should be through Military Commandos butdis-regarding all these directions/ instructions, which were per bouche, the commanding officer Malik Muhammad Iqbal, the then DIG with his immediate subordinate Amjad Javaid Saleemi, and Raja Munawwar Hussain ultimately arbitrarily started operation resulting in death of 09 persons inside barrack and when the injured Judicial Officers were taken to the hospital, the hospital was got cordoned off under the direction of the then DIG, consequently, timely medical aid was not provided to all injured particularly, Shehar Yar Bokhari, who was very serious in condition and the doctors acted as stooge of DIG, did not provide proper medical treatment and was referred to PIC, Lahore un befriended helplessness where he succumbed to the injuries.
33. Regarding parleys, learned counsel has vehemently argued that no dead line was given by captors and had the parleys been prolonged for some more time, the situation would make positive in result but the slipshodness of DIG, ultimately caused heavy damage to the human lives; that with reference to the statement of P.W.26 Abdul Sattar Aajiz, the then DIG (Prisons), Sarfraz - Ahmad Mufti, the then I.G. (Prisons) P.W.27 and Ch. Zafar Hussain, the then learned District and Sessions Judge, Sialkot (P.W.30) and has empathically argued about the parleys with captors that plea of the respondents/accused party that parleys became overturn is absolutely incorrect and he has submitted that neither any particular time or deadline was given by the captors/convicts (since dead) or it was not brought on the record that their demands were turned down by above P.Ws. Participating in parleys but it was got them (captors) believed and assured that after obtaining necessary instructions from the Hon'ble Lahore High Court, those demands could possibly be fulfilled. Added that demands as manifested by the evidence are:--
(i) The. Final decision of the pending case against them may be deferred upto six months.
(ii) They may not be assassinated in an police encounter.
(iii) Relatives of the captors may not be involved in false cases by the police.
(iv) They be provided safe passage to quit, jail premises.
(v). They also be provided five Kalashnikovs alongwith sufficient ammunition for their safe exit and a bus having 72 seats may also be given to them for that.
' To strengthening, learned counsel has referred to particular , portion ' of statement of P.W.27, which is reproduced as follows:-- "During negotiation with hostage takers to end of the second session of the negotiation with them, they had not given any deadline. At the end of the second spell of my negotiation with the hostage takers, I witnessed that members of the police force were preparing by wearing gas masks and others and when I came down, I saw that Ch. Zafar Hussain, learned District and Sessions Judge, Sialkot was sitting on a chair with Malik Muhammad Iqbal, DIG Police and Malik Muhammad DIG was asking from Sessions Judge, Sialkot that if he was not wanting operation, he would give it in writing and he would take back his force. Volunteered that learned Sessions Judge, did not give response and remained Quiet. Again Malik Muhammad Iqbal, DIG Police requested the learned District and Sessions Judge that he was the senior most Judicial Officer present in jail and being boss should order that if he did not want operation, he would give in writing and he would take back his force. At that time, learned District and Sessions Judge replied "How can I do that".
' Learned counsel has particularly pointed out part of statement of P.W which is reproduced as follows:- "I noticed that DIG and DPO Raja Munawar were preparing for the police operation. At that time, the entire ladies' barrack had been encircled by the police force. A large number of police were present inside the jail premises. I forbade DIG from carrying out the operation, who harshly replied that the delay was being caused. Munawar Warraich, President of District Bar Association, Sialkot, who at that time reached there, also emotionally asked not to start the operation as there was apprehension of murder of Judges ' in it, but DIG had not paid any heed to his advice also. I again informed him that he would not conduct the operation unless we seek prior permission from Hon'ble Lahore High Court, Lahore. Then he asked myself to contact the Hon'ble Lahore High Court, Lahore. Telephonically for requisite permission. When I and complainant reached near office of Superintendent Jail, the operation commenced. Crackers were used as well as teargas. The slogans were raised and thereafter, the firing started. Consequently, three Judicial Officers, Sagheer Anwar, Shahid Munir Ranjha and Asif Mumtaz Cheema succumbed to the injuries while Shehar Yar Bokhari, Sebtain Raza Kazmi and Javaid Iqbal Warraich sustained serious injuries".
' Learned counsel referring to the statement of P.W.32 Rai Muhammad Naeem available at pages Nos.421 to 423, 425 and 426 in support of his above stated arguments that before launching of the operation, as per Jail Manual Rule Nos. 5 to 9, it was mandatory to blow the siren of the jail or to declare the emergency or any indication showing intent of operation, was necessary but neither any siren nor any such indication was made before operation, the police officers, particularly, Malik Muhammad Iqbal, Amjad Javaid Saleemi and Raja Munawwar Hussain who to save their lives had.
Worn 'the bullet proof jackets, all of sudden, firing started by them not to rescue captives Judges, but to kill all the prisoners in the barrack. Learned counsel has made emphasis on the statement of P.W.31 available at page No.425 of the paper book which has been reproduced as follows:-- "After coming down from the roof of the Ladies' Barrack Malik Muhammad Iqbal DIG, DPO Sialkot and other police officials who were sitting on the backside of the Ladies's Barrack started talking regarding the operation and Sessions Judge Sialkot who was also present there, forbade them from the operation as it was the order of the Hon'ble Lahore High Court, Lahore and that if it was inevitable, the same would be carried through Army Commandoes."
' By flouting to all instructions as pointed out by said P.Ws., the electricity supply of ladies' barrack was out-aged through switching off main-switch, crackers were used by Raja Munawwar Hussain DPO, tear-gasses were exploded inside of barrack, the barrack was encircled, then slogan of Takbeer Allah-o-Akbar was raised, then incessantly firing was recklessly made spreading over 5/6 minutes by disregarding the identity of the captives Judges and anybody else, in this way, no other conclusion can be drawn than it was a "killing operation".
' Telling more about the operation, learned counsel has submitted. That till commencement of firing, there was no emergent situation inside barrack despite that police party resorted to indiscriminate firing, thus, by virtue of Article 122 of Qanun-e-Shahadat Order, 1984, burden of proof lies upon police party to prove why the firing was commenced by them, particularly, when the respondents did not deny the occurrence.
' After exploring the evidence of P.Ws., learned counsel has maintained that minor contradictions exist in their statements but do not go to root to extirpate it. Further contended that Malik Muhammad Iqbal, the then DIG/respondent and the DPOs who were under his immediate subordination were ultimately of their own took drastic steps by commencing fire shots whereas the captors had no personal grudge when the captives Judges nor their intention was to kill them because the grievances of them were against the learned trial Judge Ch. Nazir Ahmed P.W.34, if collective, concrete and sincere efforts were explored and applied by the Jail Authorities and the operational force acting on the directions and suggestion of Judiciary, then the operation could have been avoided but DIG being Incharge of the Operation did intractability and got it carried out.
In this respect reliance has been placed upon following legal precedents:--
(i) Emperor v. Mt. Dhirajia (AIR 1940 Allahabad 486)
(ii) Bashir v. The State (AIR 1953 All. 668 (Vol.40, C. N. 328) and
(iii) Barendra Kumar Ghosh v. King Emperor (AIR 1925 Privy Council 1) ' that burden of proof lies with the operational force to prove that firing was justified and therefore, concluded it to be a killing operation.
' Learned counsel has pointed out 'through statement of P.W.33 Syed Sebtain - Raza Kazmi that demands of the captors/ .Convicts were about to be accepted but Malik Muhammad Iqbal, the then DIG/ respondent ordered the carrying out of the operation. It is incomprehendible that why the DIG did not directly contact with the, Hon'ble Lahore High Court, Lahore and I.G. Punjab Police for taking them into confidence, perhaps, having considered him to be an absolute and not accountable to anybody and anywhere. He even did not take into confidence the Addl. I.G (Prisons) present at the spot as being Incharge of the Prison at that time.
' Learned counsel, while commenting upon non-serious behaviour of doctor Ferdous, the then Medical Superintendent of Allama Iqbal Hospital, Sialkot has argued that he intentionally did not provide proper medical aid to injured Shehar Yar Bokhari and on account of excessive bleeding, his condition became precarious that ultimately led his death at Lahore PIC, therefore, he is also responsible alongwith other doctors who acted negligently and his acquittal under section 265-K Cr.P.C. Is absolutely illegal, notwithstanding, his acquittal has been endorsed by this court but under the parental as well as visitorial jurisdiction, this court can take action against him. The following legal precedents empower the court in this regard:--
(i) Atta Ullah v. Ghulam Rasool (PLD 2006 Lahore '290)
(ii) Muhammad Sabir Roshan v. The State (2000 PCr.LJ 1195)
(iii) Allah Rakha v. The State (2000 MLD 1932)
(iv) Gul Muhammad v. The State (1999 SCMR 2765)
(v) The State v. Asif Ali and another (PLD 2001 SC 536)
' Learned counsel has got attention of the court over the statements of P.W.34, P.W.36 and P P.W/.37 to strengthen the behaviour of the Medical Officers, particularly, with Shehar Yar Bokhari who was lying seriously injured at Allama Iqbal Memorial Hospital, Sialkot and in generalized way argued that statements made by the Judicial Officers on oath before learned trial Court and were cross examined as well by, the defence cannot be accepted to have been under some influence especially when they are also holding the chair of a Judge knowing the responsibilities as well as liabilities of an arbiter. Firstly, the statements furnished by the eye-witnesses in the written shape were destroyed then allegedly those were reduced into writing to give them shape of statements under section 161 Cr.P.C. Which have not been accepted by the P.Ws. And in this way, statements made by them before court on oath have to be given precedence. To strengthen his arguments, learned counsel has relied upon following cases:-
(i) Pakistan Steel Mills Corporation Limited v. Abdul Habib (1993 SCMR 848)
(ii) , Mustari v. Islamic Republic of Pakistan (2006 MLD 19)
(iii) Islamic Republic of Pakistan v. Rokhsana Perveen (2005 MLD 335)
(iv) Dost Muhammad v. Pakistan Steel Mills Corporation (1996 CLC 530)
(v) Mst. Razia Khatoon v. Province of N.-W.F.P. Through Secretary Transport N . -W . F. P . , Secretariat Peshawar (2002 M LD 539)
(vi) Aijaz v. Karachi Transport Corporation through Chairman, Director of Secretary (2004 MLD 491)
' Another aspect has also been highlighted that a man may tell a lie but the circumstance do not, over all the case is that police force made firing; therefore, burden lies upon it in view of the principle of res ipsa loquitur. As to the supplementary statement of the complainant, it has been submitted that F.I.R. Cannot be treated ever the ultimate document or foundation of a criminal case whereas under section 154, Cr.P.C. It is just an information to set the law in motion and it is the function of the investigator to collect evidence. He explained that if one on account of lack of knowledge or under exceptional circumstances being dum-struck such as terror, panic failed to bring a fact/matter in the F.I.R., same can be brought through a supplemental statement subject to bona fide as existed in the instant case. He argued that the complainant in his supplementary statement has categorically stated that on account of dismay, deep shock as well as panic, omitted some facts, those were brought on record and consequently were found true in investigation, then supplementary statement cannot be thrown out of the consideration rather would be liable to be relied upon, in this respect learned counsel has made reliance on PLD 1997 SC
408. Then learned counsel has read as follows:-
34. Learned counsel has argued that three inquires for facts findings were held one by worthy Registrar, Lahore High Court, Lahore (Sh. Abdul Rasheed), the other under the order of the Chief Minister, Punjab and 3rd was headed by Col. Saadatullah, their reports are available but the learned trial Court did not permit him to bring them on record and reports of those inquiries can also provide further help to the court to reach to a just conclusion.
35. On the caption of investigations, on strength of statements of C.Ws. As well as the ocular account, it has been maintained that definitely investigation was carried out by non-joining the legal heirs of the deceased during which destruction of the record was made, then it was the paramount duty of the learned trial court to take action under section 27 of Anti-Terrorism Act, 1997 as well as under section 196 of Cr.P.C. To further strengthen this aspect of the arguments has referred to the statement of Akhtar Iqbal respondent/Assistant Superintendent Jail recorded under section 342, Cr.P.C. On answers to questions Nos.2, 10, 23; 24 and 25, then on it, has referred to Art.117 of Qanun-eShahadat Order, 1984 and while answering to questions No.28, 29, 48, 50, 51 and then ultimately has taken the court to the answer No.52 made by said respondent which has been jotted down as follows:- "I have been falsely implicated in order to suppress my eye-account of the occurrence. My statement was not recorded by the Investigation Team and by the Investigation Officer exactly.
After the occurrence., I remained performing duty and was not suspended. I associated all the investigations of this case and briefed the Joint Investigation Team headed by Mr. Ghulam Muhammad Kalyar," Investigation Team constituted by Chief Minister of Punjab, Facts Finding Commission constituted by . The Hon'ble Lahore High Court, Lahore and apprised them of the true facts of the case. Some of those bitter facts were in conflict with interest of Senior Officers, so with aim to screen any evidence, I was later on-implicated in this case as an accused. For what very reason, on 31-7-2003, my statement was not recorded by the Joint Investigation Team while of my other colleagues/officers of the Jail were examined on said date by the said Team. Meanwhile, I was forced from different corners to make the statement that before commencement of operation, the captors had murdered one of the Judicial Officers but I refused to do so claiming that with the Grace of God Almighty, my life was saved in this occurrence. Due to rionsurrendering to this demand, I was implicated in this case. I am not at all involved in any abetment, conspiracy of this occurrence or the occurrence itself. I am completely innocent and have been falsely involved in this case and the main occurrence had taken place in the interior of the jail."
' On the basis of said material as well as discussion 'made hereinabove, learned counsel has given the conclusion that prosecution has proved its case beyond any shadow of reasonable doubt and relied upon precedents infra:-
(i) Mst. Zubaida v. M. Abdul Sattar (2000 CLC 90)
(ii) Zafar Ali v. Allah Bachayo (PLD 1989 SC 294)
(iii) Waryam Singh v. Emperor (AIR 1926 Lahore 554)
36. Touching the fact of import of firearms inside the jail, learned counsel has attempted to prove "negligence" of Raja Mushtaq Assistant Superintendent Jail, Riasat Ali Warder, Abdul Aziz and Muhammad Jameel Warders stating that on the day of occurrence, Raja Mushtaq was Incharge of Football Factory of jail and was also Day Officer who had to supervise activities of Warders deputed outside jail for conducting search and inside jail to search the prisoners at. The time of locking back in their barrack. According to the submissions of counsel, Riasat Ali Warder was posted on that day for conducting search outside jail whereas Abdul Aziz had been deputed with the same duty inside jail, had they performed their duties with due diligence and care,, then smuggling of the firearms inside jail was not possible but since both these officials connived with the co-accused Shahid alias Kala, thus they succeeded in sending arms inside jail in order to provide those weapons to the captors. In this respect, learned counsel has cited Latin terminology respondeat superior, meaning thereby that principal be held responsible, thus it was liability of Raja Mushtaq in all circumstances to check the subordinates but he failed in performance of his duty. Learned counsel has relied upon case reported as Din Muhammad v. Faqir Muhammad (PLD 1970 Lahore 442). On this point, again learned counsel has referred to a maxim of Latin jus ex injuria non oritur (a right does not arise from a wrong) and explained that the respondents/employees of the jail cannot be absolved from the liability of instant incident, notwithstanding, they did not participate in the incident of firing. Further has placed reliance on PLD 1997 Lahore 188 to say that everything is required to be done in accordance with law.
' As to professionalness of the duties of the doctors, it has been argued that doctors are always bound to encourage to the patient as well as their attendants and should have to make strives for saving lives of the under treatment patients but in the case in hand, doctors especially doctor Ferdous Shah Bokhari M.S. Of AIM Hospital, Sialkot (since acquitted under' section 265-K Cr.P.C) has treated Shehar Yar Bokhari the injured as res nullius, in this regard, statement of P. W.16 Fateh Muhammad, Civil Naazer has been.Quotes' who -was present in the hospital at the time of making arrangements for the transportation of the injured to Lahore and consequently, his precarious condition was not taken into consideration and disregarding of medical ethic, Khatara/ damaged/substandard and unfit ambulance was provided for the same. This argument has further been strengthened with reference to the statement of doctor and has referred to the statement of doctor Abdul Waheed P.W.28 who in his cross examination had categorically deposed that Shehar Yar Bokhari deceased was in fact brought in an improper condition in the PIC, Hospital in Lahore.
37. Learned counsel has tried to make distinctions in between 'evidence' and `statement' by submitting that evidence nieans statements recorded under Qanun-eShahadat Order, 1984 and are subject to cross-examination whereas the other assertions may be termed as simple statement and specially in the light of provisions of section 161 Cr.P.C.; submitted that these statements per se are not admissible to be relied upon and in this, way, it has been tried to establish that statements made by the Judicial Officers as witnesses in the court and were cross- examined had to be accepted vis-a-vis all other statements and if they have denied their statements either recorded by the police under section 161 Cr.P.C. Or subsequent there to, then the court cannot believe any other statement except which they have made in the court on oath.
Learned counsel further argued that it couldn't be expected in all circumstances from the. Judicial Officers P. Ws. That they would make false statements or non-volitionary statements under any clout because they themselves sit as Qazis and deeply understand responsibilities, duties and liabilities of a Judge; added that statements statedly recorded by the police cannot be given overweight vis-a-vis testimonies.
38. Learned counsel has exquisitely commented upon the conduct of the doctor while referring to the medical examination of a lady who was examined by P.W.18 doctor Tahir Zafar Bokhari but did not mention his name but has mentioned her husband's name on the medical reports but later on she was found to be Salina Bibi wife of Ghaffur Ahmad, caste Khokhar. Learned counsel submitted that how the doctor came to know the name of husband of the lady whereas her name was not mentioned; all the doctors were under the influence of DIG Malik Muhammad Iqbal as well as doctor Ferdous Shah Bokhari and another malice has been pointed out that the weapon through which injury was caused was mentioned as blunt but in fact the injuries were caused with firearms, fudging/bungling was made while preparing record of Shehar Yar Bokhari; the injury on the person of Shehar Yar Bokhari was located on non-vital parts of his body but six hours were consumed in bringing him to the hospital from the place of occurrence, within this duration, the excessive bleeding occurred on account of gross negligence of the police as well as the doctors, therefore, all are responsible for the culpable homicide amounting to the murder by virtue of case-law reported in:--
(i) Malik Murid Hussain v. The State (2005 YLR 1799) and
(ii) Syed Tajammal Hussain v. Nasar Mehdi (PLD 1976 SC 377)
' Further submitted that person having been deputed by the system to save the lives of the people were in fact remained busy in killing innocent person Shehar Yar Bokhari, Civil Judge deceased by not providing him proper/timely first aid. Learned counsel has also referred to the report of Forensic Science Laboratory, Lahore about the last worn clothes of deceased Shehar Yar Bokhari Exh,PKKKK and Exh. PLLLL that doctor has said that injuries were caused with tire shots. Learned counsel submitted that in absence of the post mortem reports of deceased Civil Judges, it cannot be said that their deaths have not been proved because three persons lost their lives at the spot and the 4th one died in PIC, Lahore. Dimensions of the injuries by itself clarify and certify that injuries were caused with firearms resulted in death of the deceased persons. Learned counsel has relied upon case of Mehram Ali and others v. Federation of Pakistan and others (1998 SCMR 1778); that deceased Shehar Yar Bokhari remained unable to utter anything from his mouth then how the doctor while examining him observed that he felt pains in certain parts of his body. In the operational record, tampering was also made by the doctors and again has strengthened his arguments by referring to statement of CW.2 Ghulam Ahmad Kalyar through reports as CW-2/1 dated 16-9-2003, CW-2/2 dated 31-8-2003 and CW-2/3 dated 6-12-2003. Again showing the apertures of the injuries of Shehar Yar Bokhari, it has been argued that blackening was present around the same, scilicet that the deceased received fire shots within the range of 2/3 feet and injuries were caused by the police and none else as reports mentioned herein above are supportive of this fact Learned counsel submitted that it was very unfortunate that the deceased was treated as un-befriend. Further argued that performing of post mortems on the dead bodies is not mandatory provided the cause of death is suspicious but when the cause of death is conspicuous,' then section 174 of Cr.P.C. Mandates that the post mortem examinations can be dispensed with and in this respect has also referred to case reported as Mehram Ali and others v.
Federation of Pakistan and others (1998 SCMR 1778).
' Learned counsel submitted that the entire mismanagement and misuse of powers were caused by Malik Muhammad Iqbal as he was the wholly solly Incharge of the case; any irregularity or intentional illegality of the investigation cannot mar, the prosecution case because all eye- witnesses are clung to their version duly buttressed by the medical evidence and in this way, case has been proved. Learned counsel has also commented upon the letter written by the Executive District Officer (Health), Sialkot Exh DU and has argued that the same document was relied upon by the defence but in fact the same favours the prosecution and has thus referred to its particular paragraph which is reproduced infra:- "Two of them named Civil Judge Shehar Yar Bokhari and Riaz Khokhar Head Constable were seriously injured. Civil Judge Shehar Yar Bokhari was received pulseless and B.P. Less: He was pale, gasping and froth in his mouth. His I/V line maintained, cardio pulmonary resuscitation was initiated by' Dr. Muhammad Ayub Yousaf B.T.O.And Dr. Sajid Hussain, Surgeon to manage and continued resuscitation while proceeding to Operation Theatre. In Operation Theatre, intense measures were taken to resuscitate and manage this patient. During' this course, Homeostasis was secured and six pints of blood alongwith other plasma expanders were transfused and his peripheral pulses became palpable. His respiration improved. Then the patient was referred to Lahore for vascular surgery and advanced treatment as this DHQ Hospital lacks these facilities. It was arranged that injured will be transferred in the hospital ambulances which were equipped with Oxygen Cylinder and life Saving medicines. However, it is unfortunate that the attendants of the injured were reluctant to shift the injured in proposed ambulance and arranged a private Air Conditioned ambulance and left for Lahore on their own. It is further added that Medical Officer kept on waiting to accompany these patients to Lahore."
39. Learned counsel has commented upon the acquittal of respondent doctor Sajid seriously and argued that investigationally, his prosecution was recommended under section 322, P.P.C., then he read its definition available under section 321,' P.P.C. To explain= that he excelled the cause of death of the deceased Shehar Yar Bokhari; documents prepared while examining him has been mentioning his age as 40 years but in fact he was 27 years; Exh.DP the certificate issued by Surgical Unit No.II, Allama Iqbal Memorial Hospital, Sialkot and transportation of injured deceased to PIC, Hospital at Lahore that he was transmitted in helplessness way and this was all on account of DIG Malik Muhammad Iqbal, doctor Ferdous, the then Medical Superintendent and doctor Sajid as they with commonality of their objects to get rid of Shehar Yar Bokhari managed this so that he might not survive so that a very essential evidence may be screened off and destroyed, on it learned counsel has relied upon Art.114 of Qanun-e-Shahadat Order, 1984, thereafter has referred to some parts of the statement of doctor Sajid/ respondent recorded under section 342, Cr.P.C., the same is reproduced as follows:- ' Q.No.1 Have you heard and understood the prosecution evidence?
' Ans. He answered in the negative. Then learned counsel has referred to question No.8 ' Q.No.8 It is in evidence that there was no proper arrangements for . Shifting of dead bodies and the injured from Allama Iqbal Memorial Hospital, Sialkot, what you have to say about it?
' Ans. I have no concern about it.
' Learned counsel has also diverted the attention of the Court on Exh.DU, the document of admission of Shehar Yar Bokhari in A.I.M Hospital, Sialkot where he was operated upon by doctor Ejaz Chattha, the Senior Medical Surgeon, in this background has also referred to questions Nos.9, 14, 15 and their answers to which according to learned counsel, he has arrogantly replied that questions as irrelevant. Learned counsel then again referred to question No.23 of the statement of doctor Sajid recorded under section 342, Cr.P.C. In which he has explained LAMA as follows:-- "It is incorrect to use the word LAMA on referral slip. Technically LAMA word used for those patients who does not want to be treated by the concerned doctors. Shehar Yar Bokhari was treated and later referred".
' Learned counsel in this context at the end has submitted that the respondent Malik Muhammad Iqbal, Amjad Javaid Saleemi, Raja Munawwar Hussain and doctor Sajid never bothered the authority of law as. Well High Court and in a conceited and disrespectly answered certain questions put under section 342, Cr.P.C., this conduct is required to be noted.
40. Learned counsel Syed Ghulam Abbas Bokhari has again commented upon the typical behaviour of Raja Munawwar Hussain and Amjad Javaid Saleemi respondents which they had displayed while answering under section 342, Cr.P.C. To. Questions Nos.7, 8, 9, 11, 14, 16, 18, 43, 44, 46, 56, 67, 77, 109, 110, 111 and 112 and, tried to establish that they took them above the law and have disregarded the system. Learned counsel has also referred ' to the last paragraph of the judgment of Hon'ble Supreme Court of Pakistan reported in case of Syed Muhammad Ferdous and others v.
The State (2005 SCMR 784) (pre-arrest bail matter) wherein it has been observed infra:-- "Before parting with the judgment, it is clarified that observations made hereinabove are tentative in nature and trial court shall be free to decide case independently without being influenced in any manner from the same on merits strictly in accordance with law".
' Then gaining force again from the observation made in the said judgment, learned counsel has submitted that learned trial court was given free hand and as appeal is continuation of trial, therefore, Appellate Court is also free by the said observations.
' Learned counsel submitted that scaled site plan prepared on the pointation of police and witnesses by the draftsman has been, in fact, got prepared by the police of their own convenience and benefits. No doubt, it has been mentioned that it was on the pointing out of P. Ws. But in fact it was not as such even if the same is relied upon, then it can be noticed that two persons were done to death outside the ladies' barrack and this fact by itself manifests that it was the killing made by the operational force. Learned counsel has relied upon Ali Khan v. The State (2010 PCr.LJ 11) (d) on the subject.
41. Learned counsel has argued on the visit of learned District and. Sessions Judge on the fateful day while referring to a letter Exh.PBBBB dated 27-7-2003 which was addressed to District Police Officer, Sialkot, the particular portion of the same for appreciation is reproduced as follows:-- "As you know that I was on monthly routine Inspection of District Jail, Sialkot alongwith the Civil Judges-cum-Judicial Magistrates, when I and my Judges were attacked by the prisoners/ culprits, who were armed with pistols and thousands of rounds. I, myself and the Senior Civil Judge and two Civil Judges' lives were saved only by a miracle of Almighty Allah, but ten of the accompanied Civil Judges were besieged by those culprits. I was personally present in District Jail, Sialkot whole the day. I issued directions which were communicated by the learned Senior Civil Judge to the DIG Police Malik Muhammad Iqbal, who was commanding the police party that no police action shall be taken without the prior permission of the High Court and the undersigned. I further directed that if at all any action is adopted as a last resort; it must be conducted only and only by Army Commandoes and that too, with the permission of the High Court and the undersigned, but the police action was conducted against my directions in entirety. No proper planning was done prior to initiation of this mega operation by the police. Moreover, the police employees deputed on this operation had no recognitions/ identifications of any of the captive Judges. It was a sort of assault to kill captors and captives alike and not a rescue operation by any sense of trial. This letter is sent to you for investigation regarding F.I.R. No.237/03 dated 25-7-2003, Police Station, Civil Lines, Sialkot and, whole incident amounts an act of terrorism which falls within the ambit of sections 6 and 7 of the Anti-Terrorism Act, 1993".
42. Learned counsel submitted that presence of the police operation force and the P.Ws., hostaging of the deceased Judges as well as the injured and the operation itself were not controverted and if so the position would be as to submit report under section 154, Cr.P.C. That the same has been admitted:
43. Learned counsel has made a fine distinction in between the "fact" as well as "opinion" and submitted that fact has been defined in Art.2 of Qanun-e-Shahadat Order, 1984 whereas opinion is based either through collection of evidence or through expertise of a person but facts come out from the mouth of a person who has the actual/direct knowledge of certain things as described in Art.71 of Qanun-eShahadat Order, 1984 whereas opinion is based upon the statements of certain persons and if those persons are not produced before court, then it is just an opinion as being "dogmatic statement", here learned counsel has relied upon that opinion of the police that offences under section 319/322 etc. Are constituted is irrelevant and on the facts P.Ws. Having sustained injuries have categorically stated that firing made by, police officials resulted in death of four persons and they received injuries and this fact has been proved by other persons who have not been examined but their statements under section 164, Cr.P.C. Are part of record which can also be read as an evidence in this connection has relied upon following case-laws:--
(i) Haji Muhammad Haneef v. The State (PLD 1992 Lahore 314)
(ii) Santa Singh v. The State of Punjab PLD 1956 SC (India) 327).
Muhammad Haneef v. The State PLD 1993 SC 895)
(AIR 1934 All 273) (PLD 1980 Peshawar 193)
(iii) Gul Nawaz Khan v. The State
(iv) Mst. Titli v. Alfred Robert Jones
(v) Said Ajmi v. The Comptroller of Customs (PLD 1956 PC 34)
' Learned counsel submitted that this is fundamental principle of justice that nobody should be a Judge of his own cause but in this case DIG so far as investigation is concerned remained influential over the JIT and got report of investigation in his own favour but ultimately he was summoned by the learned trial court to face trial, Another aspect has also been discussed that Malik Muhammad Iqbal and other DPOs who participated in the operation despite the fact that they were found involved but were never arrested, this was only because of their official influencive position and even their subordinates could not dare to touch them; captives judgments were in hellish, they preferred to' die honourably rather to beg for their lives but the operational force did not bother and remained bent upon come what may to kill them.
44. Learned counsel for the appellant with heart-broken empathically has criticized statement of CW.1 Sana Ullah Inspector/S.H.O. And has referred to three, Investigating Reports available on the file as CW.2/1, CW.2/2 and CW.3/1 and has tried to prove that Shehar Yar Bokhari was murdered by the firing of the police party. He has pointed out in Exh.CW-1/2 the individual roles of each of the accused persons of this case and has further made a light on the history of cases against captors/ convicts namely Shehbaz, Ejaz Ahmad, Ashfaq alias Ishaq and Rafique alias Kona. In order to establish the identity of the captors by their uniform which they had worn after having been convicted and being so almost all the jail employees concerning to that particular barrack could identify each of them at any time: Further submitted that these five deceased were lodged in a Football Factory set up inside jail for the purposes of law and order situation and for other duties Raja Muhammad Mushtaq and Muhammad Hafeez Jail Warder were having complete powers for control of movement of the confined persons therein. Further submitted that how they came out from the said factory, it was prime duty of Raja Mushtaq and Hafeez to explain and if the same remains unexplained then no other conclusion can be drawn except that both of them were privy to the crime in bringing out the said captors from the factory; submitted that judicial officers were made by the captors so helpless to exchange their clothes with the convicts/captors. Further submitted that it was, unfortunate, on part of Malik Muhammad Iqbal respondent/ accused that investigation was transferred on 28-7-2003 but the file was not handed over to the concerned Panel of Investigators and the same was withheld on his order; that two persons i.e. Learned trial Judge Syed Iftikhar Hussain Shah now serving as Judge of this court and District and Sessions Judge, Gujranwala were assigned to supervise the investigation but the DIG-respondent never bothered them and ultimately he managed all the things during the investigation up to the grabbing of the record of the case diaries as well as statements submitted in writing by the P.Ws.; that Raja Munawar Hussain, DPO Gujrat, Muhammad Azam, DPO Narowal, Incharge Elite Force and Zulfiqar Virk were made P.Ws. In this case but later-on they were transposed as accused persons as a result of the investigation carried out by the Panel and in fact this was the advice of Malik Muhammad Iqbal that police officers of his choice may be cited as P.Ws. For prospective benefits and statement of P.W.30 Ch. Zafar Hussain, learned Sessions Judge, Sialkot was also fabricated.
Learned counsel has tried to establish through investigation report Exh.CW-2/1 that what were the causes for happening of instant incident, FOUR REASONS of the incident have been discussed and in the 3,rd one, he has referred to specifically and is cause mentioned at Sr. No. 2 infra:- (P-547) {{URDU TEXT}} ' The 4th cause of the incident has been highlighted in, the following words mentioned at Sr.No.4 infra:- (P.548) {{URDU TEXT}}
45. It has seriously been commented upon that absolutely there is no evidence on the file like telephonic message, wireless message, Tele-printer message; SMS and even by Fax which evidence was subsequently fabricated by the police in order to provide benefit to their high-ups with a view to defy the standing instructions of the learned District and Sessions Judge Ch. Zafar Hussain P.W. As well as by the Hon'ble Lahore High Court, Lahore. Further submitted that now the era in which we are fleeting is advanced one and the position of the City Sialkot is that it is located near the Indian Border and all facilities are available to the police as well as to the Military intelligence sharing. Even, it has not been brought on record that who attended the calls or whom it were addressed, the respondents were provided an opportunity to adduce defence evidence, none of them especially Malik Muhammad Iqbal produced any evidence in his defence that he tried to link up the Military commanders but ultimately he met failure on certain reasons; that it appeared that he being the King considered himself to be over wiser had acted arbitrarily, intractably, derogating to all instructions and flouting all the rules of law and norms of justice as schadenfreude. Learned counsel interpreting the phrase "due course of law" has argued that this adage has universal application that exercise of proper care and cause in a particular situation being faced by following the rules and instructions and has referred in this behalf cause mentioned at Para/Sr.No.5 at page No.1785 of paper book No.V of Crl.A.No.78 of 2007 describing as under:- {{URDU TEXT}} ' And has submitted that perusal of the police case diaries depicts muteness that firing was made by the captors before the firing of operational force and to establish this fact has referred to Para/Serial No.6 of the same Cause mentioned at page No.1785 of the paper book infra:- {{URDU TEXT}} ' Again this finding has been discussed in the light of statement of CW.2 and has been solicited to be relied upon because witnesses who collected the evidence for preparing a fact finding has appeared before court and these reports have also been put in the shape of questions under section 342, Cr . P. C . To the respondents as Exh. C . 2/1, CW.2/2 and CW.3/1, in answering to the questions, the same has not been said that reports were fabricated, then again learned counsel has referred paragraph/Sr. No.7 at page No.1785, the same is jotted down as follows:-- {{URDU TEXT}} ' Now with this assertion, learned counsel submitted that no second thought can be brought on record that firstly the firing was made from, inside ladies' barrack but actually the police force headed by the King Malik Muhammad Iqbal firing was ordered to be made by him, then learned counsel has referred the Latin term "ouifacit per elium facity per se", for the same English rendition is that "he who gets an act done by another does it himself". Learned counsel has further referred Para/Sr. No.8 of Cause No.4 of the investigation report mentioned at page No.1785, the same is reproduced as follows:- {{URDU TEXT}} ' And again at page No.1789 of paper book No.2 and point No.I1 of Sr.No.3 is reproduced as under:-- {{URDU TEXT}} "The report of the Sialkot Jail incident has been gone through, I agree with the observation of Investigation Team, headed by DPO/Kasur and Supervised by DIG, Sheikhupura Range. Police action was hasty and as such punishable under section 319, P.P.C. i.e. Qatl-e-Khata. This being so, section 319, P.P.C. May be added in this case and challan submitted to court for trial. Submitted please. Sd/AIG', Legal. 13-9-2003".
' Then it was concluded that there was no justification for the respondents to mount attack, in fact, grave aggression was caused by the respondents resulted in death of 09 persons, out of whom, four were the impeccable Civil Judges; submitted that why the fact-finding ,opinion may not be believed because the same was formulated on the basis of concrete probe and the persons who had joined the investigation have also made their statements before the learned trial court, therefore, the police opinion in the circumstances of the case is liable to be examined under sections 161, 162 and 172, Cr:P.C. And is also liable to be taken as plea to be believed has corroborated the ocular account especially when on the controlling role of Malik Muhammad Iqbal with reference to section 81, P.P.C. An exception was claimed and again on it a juridical opinion was sought. What has been mentioned herein above and in all circumstances; it has to be believed that the respondents are the responsible for the murders of 09 persons. Learned counsel submitted that nobody whosoever may be allowed to take away the life of a subject except by due course of law. The police force is meant for the protection of the persons and the property of the subject but in this case they have done travesty i.e. Killing the persons. Learned counsel submits that it has also been proved that police operation was hasty and in an irresponsible way, it was carried out; that it remains with arbiter of the Court to decide after the perusal of the record that which of the provision of law has been proved for the conviction and sentence, once the court "seized of the matter under section 173, Cr.P.C. Learned counsel submits that come what may and irrespective of the circumstances explained and brought on record on behalf of the respondents just and only conclusion is drawn that all of them are equally liable and responsible for the death of nine persons as well as causing injuries to the injured persons. Again has argued that learned trial court summoned the respondents on 19-1-2004 under section 302, P.P.C. And that order was not assailed by anybody. Learned counsel has again referred to paragraph No.52 of the statement of CW.2 reproduced as under:-- "It is not in my knowledge that these members of Elite Force were summoned by the learned predecessor of this court to face the trial under section 302 P.P.C. And other allied offences vide orders dated 19-1-2004. On 16-4-2004, the complete police file was produced before me by CW.1.
After case diary dated 2-1-2004, next case diary was recorded on 8-4-2004".
' In this way has seriously criticized upon the working of J.I.T in the case. Learned counsel has further maintained that the police case diaries remain closed for about three months whereas the law does not permit this practice and has demonstrated the absolute powers of the three Kings of the case and helplessness of the supervisory officers of investigation. Another instance has been given that the behaviour of the investigation team was so insufferable by non-bothering of taking in possession last worn clothes of Shehar Yar Bokhari and ultimately after 10 days of his death, these were produced and if this was the state of affairs, then how the dispensation of justice would be possible.
' Another aspect regarding the conduct, of doctor Sajid Hussain has been brought on record, the same is available at page No.1847 of the paper book which is reproduced as follows:- {{URDU TEXT}} ' That doctor Ferdous, then Medical Superintendent of said hospital was playing as puppet at the hands of senior police officers, had disregarded his professional liabilities, responsibilities, duties, submissiveness to the Majesty of Lord, bifurcated the characteristic of the character of the doctor as "good character" and "bad character", learned counsel has relied upon Salmond's Jurisprudence Chapter 18 (liability):-- "The character of the offender.-Punishment should be lighter in the case of offenders, of good character than in case of bad character. A man is said to be a good character when the sympathetic instincts, natural affections, love, pride, self-respect, religion etc., have their proper influence on him. A man's character is bad in this sense if he is so constituted that his impulse towards law abiding a conduct has been weakened. Other facts indicating bad character are-
(a) repeated crimes as showing habit;
(b) where the offence is too great and the gain to the offender meagre, (e.g., killing a person to obtain a few paisa);
(c) Where one, to be naturally loved or respected, is killed (e.g., in matricide);
(d) Where the offence is wilful and not merely negligent.
' Bad characters deserve more severe punishment because--
(i) It is more likely to keep in cheek their Criminal tendencies, and
(ii) They are insensible. To light punishment.
46. Learned counsel has pointed out typical behaviour of Malik Muhammad Iqbal and has argued that wherever in Punjab someone was destined to be extra judicially killed, he was deputed and the Hon'ble Supreme Court of Pakistan has made remarks in this regard in some judgment, these are admissible and permissible by virtue of Art.56 of Qanun-eShahadat Order, 1984; that constitutionally wherever and whenever irrespective of the status/rank, it is the duty of the law enforcing agencies to protect the subjects but in the instant case, operational force has acted counter to it. Learned counsel has submitted that the duties, liabilities and responsibilities of the police officials during investigation or in an occurrence have been elaborated under the law. He has further based his arguments on a Latin maxim "pronto faulter" meaning (compulsive liar) and argued that conduct, liabilities, responsibilities and actions of the police operational party may have been brought within the mischief of Art.151 (3) and Art.140 of the Qanun-e-Shahadat Order, 1984. Linking this arguments, learned counsel added that there is nothing on record nor any evidence has been produced by the defence to establish as to who had ordered the respondent Malik Muhammad Iqbal to initiate action/operation whereas on the contrary almost five agencies including Lahore High Court, Lahore had specifically restrained him to fire single bullet without the support of the Army Commandoes. Regarding dishonesty of CW.1 Sana Ullah Virk Inspector with respect to the investigation which he conducted, learned counsel has pointed out that he had withheld and retained the police file for couple of days although Investigating Team had been constituted but he played with the file despite the fact that he was not authorized to do so and in this connection has relied upon Arts.27 and 28 of Qanun-eShahadat Order, 1984. Again submissions of the counsel with reference to Art.23 of Qanun-e-Shahadat Order, 1984 is that a continuity of the series of the actions cannot be made isolate and particularly, in this case when the action was commenced at 10-30 a.m. And ended at 5.30 p.m. During this period every concerned was of the opinion that operation was not evitable and the commander of the force was asked to restrain from initiating the same but he had opened the fire at the innocent persons having knowledge and intention about its consequences. While invoking the principle of "locus parentus", it has been argued that injured Shehar Yar Bokhari was not provided suitable medical cover, obviously on the directions and instigations of the then DIG and doctor Ferdous, the M.S. Who were trying hard to accelerate the death of the injured and in order to achieve this target they delayed transportation of the injured to the hospital for six hours and sent him to Lahore for further treatment without any medical cover and in an ambulance which was not roadworthy and in this connection last leg of the arguments of learned counsel is with reference to provision of section 5 of Anti-Terrorism Act, 1997 that an aggressor does not enjoy the right of self-defence and relied upon -following cases:-
(i) Mst. Razia Begum v. Hijrat Ali and others (PLD 1976 SC 44)
(ii) Toti Khan v. The State (2002 SCMR 1607)
(iii) Muhammad Dilbar alias Muhammad Boota and others v. The State (2002 SCMR 1425)
(iv) Ahmad and 3 others v. The State (PLD 1971 SC 720)
(v) Feroz Khan v. The State (PLD 1960 SC 344)
(vi) Ram Rattan and others v. State of Uttar Pradesh (AIR 1977 SC 619)
' While complaining about the police attitude, it has been submitted by learned counsel that injured Shehar Yar Bokhari remained admitted in hospital at Lahore for seven days but none of the police contingents ever bothered to contact the concerned Medical officer who was treating the injured nor sought for any opinion whether he was fit to make statement or not, he has shown abjectness and helplessness. Of the judiciary.
47. Syed Ghulam Abbas Bokhari, crestfallen and careworn with haggard face being father of the young deceased Civil Judge Shehar Yar Bokhari has deftly commented upon the conduct of the investigation, operational process of the police in the light of latest police law as Police Order, 2002 while relying upon its Art.4 which is reproduced as follows:-
(a) Protect life, property and liberty of citizens;
(b) ---------
(c) ---------
(d) Prevent the commission of offences and public nuisance.
(e) Collect and communicate intelligence affecting public peace and crime general;
(f) --------
(m) Obey and promptly execute all lawful orders.
' In clause "m" of the above said Article, it remains imperative on the law-enforcing agencies to obey and promptly execute all lawful orders but herein no order was passed by any authority to commence operation but Malik. Muhammad Iqbal being res integra and the king did operation, perhaps having considering him to be not accountable before authorities as well as Almighty Allah, this is height of the things and it is otherwise a pity of the system.
48. Harping upon once again, learned counsel lamentably has argued over the alleged police rescue operation submitted that five persons were asking to the DIG not to initiate the operation but he as recalcitrant, disrespecting, ignoring perhaps having a mocked but he as being stubborn and obstinate was bent upon to do the operation, ultimately, violating all instructions, directions and rules he did so resulted in massacre of 9 persons; that it was incomprehensible why the king did it and what was his afore-thought to gain by doing it. In this way, it has been described in vernacular as under:- {{URDU TEXT}} ' Learned counsel has relied upon statements of CW.1, CW.2 and jurisprudential principle through a Latin maxim res ipsa loquitur has placed liability and responsibility of the entire killing operation on the shoulder of Malik Muhammad Iqbal as respondeat superior, then his immediate subordinates Amjad Javaid Saleemi and Raja Munawwar Hussain whereas subordinates as well who followed the illegal commands; methodology of processual investigation was very unique becauSe the statements produced by the 10 prosecution witnesses in the written form duly signed by them were not made the part and parcel of the case diaries by giving reasons that these were transcribed in section 161 Cr.P.C. As required by law, contrary to the same, the statements produced by Malik Muhammad Iqbal, Amjad Javaid Saleemi and Raja Munawwar Hussain respondents on joining investigation in Rest House Sialkot in English Rendition were incorporated in the police diaries verbatim and those are available on the file as evident from paragraph No.9 at page 641 of the police , file. Learned counsel submitted that dual standard was adopted and incessantly observed so far as respondents are concerned, they were treated as privileged persons whereas the prosecution witnesses who were also the Judicial Officers were hatred and disregarded by an oblivion that ultimately case has'to be decided on judicial forum; that devastatedly learned counsel has submitted that CW.2 Ghulam Muhammad Kalyar SP the head of JIT while investigating the case as being subordinate to Malik Muhammad Iqbal had strove to extend maximum benefit to the King of the case and after his retirement, he was re-inducted in the service on account of the said investigation, JIT has utterly investigated the case dishonestly having no fear of accountability before the Almighty Allah and without being feared of their becoming brimstone of hades. Moreso, learned counsel has pointed out paragraph No.32 of the statement of CW.2 through which he made an effort to provide him benefit in the case; that why always court oscillates towards the statements under section 161. Cr.P.C. And why not the testimony of a witness is preferred over the statement because the same was made on oath and was cross-examined. It is, in fact, a pity in the system of criminal justice to give free hand to the Investigating Officer explaining like this that if the 1.0. Is honest and devoted to the cause and investigates the case on true lines and collects permissible evidence, then case may succeed, otherwise case may lose implying that the only person i.e. 1.0 playing the pivotal role for the administration of justice, in this way, the judicial scrutiny has become useless and has said Alas! On said dishonest persons; though the investigation was conducted perfunctorily but CW.2 states that "police had fired in this occurrence prior to the murder of Judicial Officers as per our joint report. We had specifically opinionated that Shehar Yar Bokhari, Civil Judge had sustained firearm injuries at the hands of police during cross-firing of the captors". It has been submitted that first incident of firing had taken place at 10-30 a.m. In which allegedly District and Sessions Judge P.W.30 was aimed but he closely escaped, instead of him Riaz Warder sustained firearm injuries but unethically and astonishingly Sana Ullah Virk CW.1 S.H.O.
Police Station Civil Lines, Sialkot did not take any action to the effect that he did not register the case nor get the medical aid to the injured nor did take any action against the firers up till happening of second occurrence at 5-30 p.m. Learned counsel while arguing with reference to the scaled site plan of the place of occurrence that two persons namely Rafique alias Kona and Ejaz were found dead at point "L" and "M" outside the ladies' barrack and as per statement of Ch. Nazir Ahmad P.W.34, both the captors Were killed with the firing of police outside barrack; that at one point of time, during investigation, AIG (Legal) on 16-9-2003 opined that report under section 173 Cr.P.C. Be submitted under section 302, P.P.C. Alongwith allied offences but his direction was not complied with. Zulfiqar Ali Virk Inspector being jail-breaker and proclaimed offender when was arrested, within 5 to 8 days, he was declared innocent relying upon statement of co-accused uniquely, it was done by the police. In support of the arguments, over the conduct of investigation, learned counsel has referred to section 43 of Pakistan Penal Code, 1860 and has relied upon:-
(i) Muhammad Asghar v. Safia Begum and others (PLD 1976 SC 435) and
(ii) Dr. Niaz Ahmad v. The State (PLD 1961 SC 224)
49. Learned counsel has discussed statements of DW.1 Mst. Khalida Bibi and DW.2 Muhammad Akram 1167/C by making an attempt to prove that both have absolutely deposed falsely under the clout of respondents but without accepting their statements has tried to bring on record certain facts which are as under:--
(i) The presence of DW.1 inside ladies' barrack being detained as under trial prisoner in the case of narcotics.
(ii) Presence of the Jail. Authorities inside
(iii) Visit of the Judicial Officers under the head of learned District and Sessions Judge Ch. Zafar Hussain P. W.
(iv) Grievances attended to by the learned Sessions Judge while entering in ladies barrack and were also answered.
(v) Presence of the police force inside jail, time of occurrence.
(vi) Presence of the firing.
(vii) Spontaneous deaths of eight persons inclusive of three learned Judges and then injuring of the lady in jail and according to her later on she was acquitted.
' Learned counsel has referred paragraphs Nos.101 and 102 of the impugned judgment and has shown repentance on the way of appreciation of accepting the statements of D.W.1 and D.W.2 which are outwardly appeared to be mendacious and they were compulsive perjure explaining it as their statements were recorded under section 161, Cr.P.C. Being supportive to the prosecution but when Zulfiqar Ali Virk Inspector/S.H.O. Was jail breaker, influenced upon them, they reneged of their earlier statements. DW.2 is a constable much below at rank, how could dare to depose against his high-ups, by concluding arguments, learned counsel suspiringly has not only commented upon the criminal justice system but at the same time has deftly, phlegmatically and pedantrily submitted that the prosecution has proved its case ably beyond shadow of reasonable doubts against the respondents i.e. Jail employees, police operational force commanded by Malik Muhammad Iqbal DIG; the inference deduced by the learned trial court in acquitting the respondents/ police personnel in totality and the respondents jail employees, so far as evidence under sections 302/34/148/149, P.P.C. And under the provisions of Anti-Terrorism Act, 1997 are concerned, the impugned judgment is absolutely illegal, perverse, shocking against the canons of justice, erroneous, based upon non-reading of evidence on record, unpalatable, invidious to notoriety to grave miscarriage of justice. Learned counsel has further added with careworn face that the deceased civil judges were inducted through Punjab Public Service Commission and were in the heydays of their lives, had to go long and were shining stars of their families were the sons of judiciary but assassinated relentlessly. He as being benighted and crestfallen father of Shehar Yar Bokhari has read following verses/couplets:- {{URDU TEXT}}
50. Learned Prosecutor General Mr. Sadaqat Ali Khan on Court's call has entered appearance and rendered assistance by referring to and relying upon Prisons Rules No.602, 603, 610, 913, 916, 934, 1158, 1159, 1164 and 1179 and argued that in the normal pursuits of events these rules are applicable to regulate activities inside jail and if anybody intends to enter jail premises to follow the same but at the same time if some emergent situation occurred, then the rule can be held in abeyance/bypassed as well as ignored facing the flaming situation and in the culmination of his arguments supported the judgment of acquittal rendered by learned trial court. It is, particular, to mention that prior to this, Mr. Tariq Javaid, DDPP attached to this court had supported and relied upon the arguments of ' learned counsel for the appellant Syed Ghulam Abbas Bokhari, Advocate.
51. Khawaja Haris Ahmad, Senior Advocate, assisted by Sher Afgan Asadi and Saleem Akhtar Sh.
Advocates on behalf of respondents Malik. Muhammad lqbal, the then DIG, Amjad Javaid Saleemi and Raja Munawwar Hussain, the then DPOs at the spade of arguments has submitted on jural side that the State has not challenged the acquittal of all the respondents and the learned Prosecutor- General has also not supported the arguments of learned counsel for appellant Syed Ghulam Abbas Bokhari, Advocate rather learned Prosecutor-General has relied upon the impugned judgment of acquittal qua acquittal of the respondents, therefore, in view of this, a favourable fact has come on record through the statement of the learned Prosecutor-General. Khawaja Haris Ahmad, learned counsel incipiently has argued on the settled and established principles for- the appreciation of evidence in the case of acquittal as well as conviction and more particularly argued that perceptibility and nuanced while applying the judicious mind and more particularly when the court makes a view to reverse the judgment of acquittal to conviction, on the basis of same evidence referring an aphorism of law that accused is a favourite child of law, always presumed to be innocent unless proved otherwise; after obtaining an acquittal by due process of law (regular trial) if an acquittal is earned, then double presumption of innocence goes in favour of the accused, when two legal presumptions are there, then to set aside these two, more curious, cautious, vigilant and juridical should be, by an arbiter because life and liberty is very precious vis- a-vis all other things in the world. Further argued that just in a casual way, by a single stroke of pen, judgment of acquittal cannot be ordered to be set aside and even otherwise if two interpretations are possible, then the law ordains that interpretation favouring the accused shall be acted with and applied. Argued that no doubt, the judgment of acquittal can be set aside by the court provided the same is fanciful, arbitrary, based upon extraneous matter, unpalatable, invidious to notoriety to miscarriage of justice as well as shocking and outwardly seems to be perverse, improper or otherwise the same was not handed down by the competent court of law; that these elements lack in the impugned judgment and when the learned acquitting court after evaluating the material before it brought out the conclusion which has gone in favour of the accused and extended the benefit of doubt to them, then at least in the subsistence of material upon which the conviction could be or can be based, even then law requires that, accused should be extended benefit of doubt. Learned counsel before arguing on merits has relied upon case of Ghulam Sikandar and others v. Mamraiz Khan and others reported in (PLD 1985 SC 11) and has diverted attention of the court at its paragraph No.18 wherein the Hon'ble Supreme Court has laid following principles:- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases law on the question of setting aside an acquittal by this court They are as follows:-
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. This approach is slightly different than that in an appear against conviction when leave is granted only for the reappraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions : One, initial, that, till found guilty, the accused is innocent ; and Two, that again .After the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result of court below: (a) disregarded material evidence ; (b) misread such evidence; (cJ received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion ; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous".
' Learned counsel has again orchestrated these principles through his reliance upon the cases as:-
(i) Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946)
(ii) Haji Amanullah v. Munir Ahmad and others (2010 SCMR 222)
(iii) Mst. Asker Jan and others v. Muhammad Dawood and others (2010 SCMR 1604) and
(iv) The State and others v. Abdul Khaliq and others (PLD 2011 SC 554)
52. Learned counsel has further submitted that up-to-date now the law is consistently settled that Courts remain languid in setting aside the judgment of acquittal and if certain irregularities and illegalities are committed or if the judgment is not based upon material available on record then it can be set aside.
' Another aspect has been discussed by citing upon the case of Syed Saeed Muhammad Shah and others v. The State (1993 SCMR 550), chronological paragraph No.42 has been referred to support legal principles to be taken into consideration while deciding appeal against acquittal and the same is reproduced as under:- "There is yet another thought provoking aspect of this case. In this case excessive publicity was given through information media after crime was reported which fact is reflected in the evidence brought on the record and is beyond dispute. Such publicity is bound to create sensationalism portraying the crime as cruel and revolting which so done when the crime is either at the stage of investigation or the case is pending trial. It is the cardinal principle of law that accused is to be presumed as innocent until prosecution proves case against him beyond shadow of reasonable doubt. If prosecution failed in its duty which never shifts to the accused, accused is entitled to the benefit of doubt. On account of excessive publicity course of investigation is affected and charged to go in one particular direction, which may turn out to be incorrect. In such cases involving sensationalism and excessive publicity it becomes more necessary for the Court to examine the evidence with more than ordinary care lest shocking nature of crime might induce an instinctive reaction against a dispassionate judicial scrutiny of facts and law. In support of the prosecution reference can be made to the case of Tauqir Alam and others v. The State (1985 MLD 604) and Kashmira Singh v. , The State (AIR 1952 SC 159)".
' At this stage, learned counsel submitted that the media remained vibrant since befalling of the incident till its decision by the learned trial court; media hyped cannot be permitted to allude and pollute the minds of the Court by undergoing sentiments because of the said hype but the courts are bound to decide the cases regardless to the sentiments and purely on the legal principles settled down time to time by the superior courts by appreciating permissible evidence.
Furthermore, on the basis of legal precedents, paragraphs Nos.43 to 48 of the impugned judgment have also been highlighted before initiating the arguments on merits.
53. Learned counsel has switched on his arguments through paragraph No.42 of the impugned judgment in which learned trial court has 'formulated the prosecution case as "I have heard submissions of learned counsel for parties at length and the prosecution case consists of following three types of evidence:-
(ix) Ocular Account,
(x) Medical Evidence
(xi) Recoveries ' Then bit by bit, these three captions were discussed by the learned trial court in sub-paras numerically and ultimately court came to the conclusion that how prosecution was not able to prove case against the respondents; by referring above mentioned paragraphs of the impugned judgment that what was case set up by Muhammad Yousaf Ojla, the then Senior Civil Judge, complainant (P.W.38) under section 154, Cr.P.C, thereafter how he flip-flopped by introducing his supplementary statement and in this way, text of the case and scenario of the incident took place were almost changed by the P.Ws.; that P.Ws. Especially the complainant and other eyewitnesses from the Judicial Department entered appearance were not countrymen but they were to be treated as more sensible as compared to ordinary witnesses and if incident had happened under their nose then why two parallel theories were introduced by the prosecution itself and there were major improvements in their statements which were confronted as per law; that Judicial Officers are not liable to be believed only on the ground that they are tagged with the Judiciary but they have entered appearance as P.Ws., then they have to be tested as normal witnesses on the basis of conditionalities and principles under the law of evidence. Learned counsel by way of a passing reference has submitted that here court should be more conscious while making scrutiny to their statements if these persons do make improvements time and again were seen changing stances even by this court then except to disbelieve them, no other presumption can be inferred, therefore, impugned judgment so far as acquittal of the respondents is concerned, the same is based upon sound reasons and principles. He has also read paragraph No.48 of the impugned judgment and has striven to establish that prosecution case is highly doubtful and the P.Ws. Are not reliable; inferences drawn by the learned trial court while appraising of material available before it, addressed to all of them within the file by applying the settled principles of appreciation of evidence has concluded in disbelieving the. Prosecution evidence and rendered judgment of acquittal, the same is neither unpalatable nor intractable, captious and being not invidious to miscarriage of justice.
54. Regarding the process of parleys, learned counsel has submitted that in F.I.R., it has been conspicuously mentioned by the complainant that when the parleys failed then operation commenced but later on complainant through the supplemental statement has reneged of his earlier stance that parleys was in progress when operation was started, this inter se incoherence is unbridgeable, so, cannot be believed. Obviously, the immediate version of the incident can be looked into more cautiously as chances of consultation and fabrication remained minimum.
55. Khawaja Haris Ahmad, Advocate has strenuously read out chronological paragraphs of the impugned judgment commencing from paras Nos.49 to 59 and has tried to establish that learned trial court has touched all these material, sensitive, relevant, legal and factual issues in this case bit by bit but ultimately pro and contra evidence, arguments and appreciated law cited thereto has drawn a conclusion in acquitting the respondents. Learned counsel has specifically laid emphasis on the demands made during parleys by the captors deceased and ultimately those demands being not valid could not be fulfilled and it was repeatedly asked by Malik Muhammad Iqbal, the then DIG about the out breaking of operation to the learned Sessions Judge (P.W.30), then why he had remained reticent and by virtue of section 5(ii)(i) of Anti-Terrorism Act, 1997 and under sections 127 to 132 of Cr.P.C., it was the mandatory duty of police officials to stop such-like incidents which may cause heavy loss to the public-at-large or any particular set of persons or property; submitted that in this case mens rea (guilty mind; criminal intent) and actus reus (wrongful act) qua police did not exist and on account of rescual operation, seven judicial officers including Sessions Judge were rescued by the operation, otherwise they would also have been done to death, adversely the situation might more be ugly than happened. Further submitted that learned trial court has discussed legitimately statements of P.W.32 to P.W.34 and also CW-4 in establishing his arguments that it was in fact not abuse of powers or excess 'of force applied by the police but it was with all bona fide a rescue operation. Learned counsel again has described repentance when the learned Sessions Judge (P.W.30) was asked time and again by the DIG Malik Muhammad Iqbal respondent that if operation was not wanted, then to give him in black and white that operation was not required which former had not given at which juncture he (Malik Muhammad Iqbal the respondent) was willing to quit jail premises; that he (P.W.30) was head of the Judiciary and on the judicial side every police officer irrespective of his status was bound to Obey his orders and in the normal course of events while presiding courts when any police official is summoned and is directed to obey orders or to carry out any order already passed, then police was bound to obey, then why he remained negative. It is vivid from the judgment that all efforts for summoning Military Commandoes remained unsuccessful and this fact has also been proved beyond any shadow of doubt as DCO Sialkot himself attempted to come in contact with the GOC for Military Commandoes but he remained fail. Further submitted that it has not to be seen that due care and caution was not undertaken by the police while making operation, but it has to be seen what again police did, what should have been done and what was done and whether the situation could be avoided and so, then how much due care and cautions were undertaken by the operational team.
Learned counsel submitted that there was minimum loss and it was only owing to rescue operation, otherwise loss would have been more. Further submitted that ladies' barrack where convict captors were present and some of the hostage Judges were also there alongwith other ladies, 32 in numbers alongwith their babies and other persons. Had the operation not been done, then possibility existed that they all would have been done to death by the captors. Further submitted that right from the demands of the captors in the parleys up to the last moment, they remained persistent rather adamant to get their demands accepted, of course, demands were illegal, improper, against law of the land and how those demands could be accepted on the judicial side; that principle of res ipsa loquitur is alien to the criminal justice whereas it is maxim of law which can be taken and utilized on civil side but not on the criminal side; that through bare reading of judgment, it has come on surface that dishonest improvements were made by the eye- witnesses (Judicial Officers) which was not expected from them to do so, what they have done and one should remember difference in between a witness who has position of Judicial Officers i.e. Judge and a witness in the ordinary sense; that trial court has rightly drawn conclusion that only one statement of P.W.34 is in this case was recorded at such a belated stage i.e. Seven days of the happening of the incident and the same has not been corroborated and why that P.W. Remained mute for a long period of seven days and after this, statement remained in field, lacks independent corroboration and the same cannot solely be relied upon on account of non-existence of its intrinsic value and being replete with infirmities.
56. Learned counsel after having read-certain relevant paragraphs of the impugned judgment has submitted that it is incomprehensible as to why post mortem examinations were not performed on the dead bodies of the Judicial Officers and perhaps it was an effort of Judiciary to suppress the actual facts: had the dead bodies been post mortemed and on the eve of extraction of foreign bodies, the situation 'would have been more clear whether the captives were done to death by the operational force or by the captors, obviously, on the judicial side, the District Judiciary as well as its higher hierarchy prevailed, consequently, the operational force was maligned and this loophole in the prosecution case goes to the roots of its case and obviously, this benefit has to be resolved in favour of the accused persons; further submitted that no exceptional circumstances prevailed not to allow performance of post mortems and again the law is very much clear that post-mortem is not essential but in this case post-mortem examinations were essential because the deceased Judicial Officers were in between the captors and the operational force. At this juncture, learned counsel has referred to the post mortem reports of the captors deceased to develop argument further that discrimination was unjustifiably caused by the Judiciary in this regard. On the legal side, learned counsel submitted that under section 174(3) of Cr.P.C. If the 'cause of death is not nebulous and obvious then post mortem examination can be excused.
57. Learned counsel has criticized that branding of rescue operation to killing operation and relying upon paragraph 49 of the impugned judgment has submitted that injured persons had allegedly sustained injuries on their lower parts of their bodies, this fact alone is sufficient to describe the operation as rescue; to defuse the stubborn attitude of the captors and mother of one of whom was brought inside jail but all efforts went fruitless; the alleged demands of the captors were tantamount to pack the system of criminal administration of justice and had the same been fulfilled, obviously, being illegal and unethical, the same would have created chaotic atmosphere in country but law of the land did not permit it; parleys commenced from 11-30 a.m. Till 5-30 p.m., sincere efforts were undertaken to avoid the operation, so much so, Commander of Operational Force Malik Muhammad Iqbal respondent, the then DIG asked the learned District and Sessions Judge present intramural jail to 'give him black and white for not initiating the operation but he was found to be iffy, then of course, in such-like situation when human lives are under the serious threats, the duties remained on the law-enforcing agencies to try to save the people; under section 5 of the Anti-Terrorism Act, 1997, DIG-respondent was, consequently, compelled by the circumstances to take action against captors and save lives of the innocent persons and this version of the respondents seems to be veridical as well as verisimilitude. Learned counsel has touched another aspect of the operation that had the operation not been carried out, then incharge of the operational force would have been guilty of misconduct. According to learned counsel, indemnifies to the law-enforcing agencies to do action in such like, situations as occurred in this case, so the law-enforcing agencies cannot be prosecuted in order to , avoid their demoralization.
58. Investigational process has been discussed by the learned counsel by arguing that J.I.T was formulated to investigate the matter under the supervision of Syed Iftikhar Hussain Shah Judge, ATC and Riaz Hussain Alvi, learned Sessions Judges, Gujranwala who remained incessantly touched and abreast of the situation, during the course of investigation, never ever made any complaint or remonstration anywhere; the result of investigation did not involve the operational force though it is not binding and admissible but at the same time, complainant or. Any aggrieved person being dissatisfied has never instituted any private complaint. Learned counsel being more particular has argued that the Supervisory Committee of the learned Judicial Officers neither pointed out any illegality or irregularity in investigation nor made any suggestion for the same and also did not controvert it and when Ch. Zafar Hussain was involved in the commission of incident, then the Judiciary turned the table to involve Malik Muhammad Iqbal and others in this case.
Another aspect has been highlighted that some of the higher officers deputed for operation were not even recommended for their prosecution but the learned trial Court summoned them after having seized of the case. If these were the state of affairs, then by any stretch of imagination, it cannot be considered that any aggression, oppression was perpetrated by the operational force.
Learned counsel here added that it has been gone indubitable that a number of times, the Investigating Officer made requests to the alleged injured as well as eye-witnesses to make their statements under section 161, Cr.P.C. But on certain prevarications suitable to them, they did not do it but after seven days, all of them presented their signed written statements. Learned counsel has made mention that the reports prepared by the J.I.T. Formulating "facts findings" are available on record, the court by going through it in the interest of justice not taking it as legal evidence but for its moral satisfaction, the same did not support the prosecution case in totality. Learned counsel has also shown reservation regarding letter written by P.W.30 Ch. Zafar Hussain, the then learned Sessions Judge regarding transfer of investigation and submitted that when Committee consisting upon three Judicial Officers was supervising the investigating process, then there was no need to write down this letter.
59. Learned counsel has referred to paragraphs Nos.60 to 64, 75, 76 and 78 of the impugned judgment to establish that learned trial court has attended to, discussed and appreciated the whole material before it while delivering the . Impugned judgment of acquittal of the respondents and the conclusion of acquittal drawn was neither based upon misreading or non-reading of evidence; added that from the judgment itself it cannot be construed that learned trial court had shown oblivion in discussing and appreciating the material and in all probabilities came to the right conclusion of acquittal of the respondents. By no stretch of imagination, it can be argued that the impugned judgment of acquittal has been based upon extraneous factors or on account of some fallacy.
' The record spoke loudly that in the post-haste, all Injured were removed to hospital for their medical aid, out of the injured, Shehar Yar Bokhari was reported serious, operated upon in Allama Iqbal Memorial Hospital, Sialkot by a team of best competent doctors available there headed by doctor Ejaz Ahmad Chattha, all efforts were made to save his life after management, it was decided to refer him to PIC, Lahore, where he was attended to by doctor Abdul Waheed, Associate Professor who in his cross-examination appreciated that the efforts undertaken at Sialkot hospital in the following words:- "I think that the first Surgeon in Allama Iqbal Memorial Hospital, Sialkot did his best as far as the operation of the injured is concerned"
' It has been argued that no stone was left unturned to save the life of Shehar Yar Bokhari by the doctors at Sialkot as well as in PIC at Lahore but infelicitly he could not survive; to describe that team of doctors at hospital on account of clout of Malik Muhammad lqbal respondent did not provide efficient concentration and medication to Shehar Yar Bokhari is absolutely irrational, illogical, preposterous and repellent to the senses, such-like thinking perhaps notions except a fib, otherwise it was very easy for police to let him die unattended. Again supplementing to the arguments that doctor Ejaz Ahmad Chattha, the Senior Surgeon was not working in the A.I.M, Hospital Sialkot, he was called from another hospital to attend injured what could else be done by the doctors and had the police not permitted him to enter the hospital, he could not; after proper medical management, injured Shehar Yar Bokhari was shifted to hospital who reached in PIC, Lahore alive. So far as the investigation of the first days is concerned, diligently all documentation were prepared by the I.O. Relating to the dead bodies, the injured, inspection of the site, recoveries of 'certain articles having been taken into possession by him and thereafter twice a Joint Investigation Team was formulated incessantly supervised by the head of Judiciary as conspicuous from the impugned judgment, throughout the investigation, no complaint was ever made by Ghulam Abbas Bokhari, the appellant or any other aggrieved person nor its results were called in question "ither on Judicial side or on Executive. Learned counsel again has relied upon the principles for reversing acquittal to conviction laid down in case of Mumaraiz Khan supra and perceptibly distinction is required to be made in between the appreciation of evidence in case of - acquittal vis-a-vis conviction; that even if an incorrect conclusion is drawn in acquitting the accused persons but the same is based upon the material available on file, it cannot be reversed relying upon known adage of law that "accused being blue eyed baby of law, presumed to be innocent unless proven guilty", stressed that the impugned judgment of acquittal has not caused any miscarriage of justice.
60. Learned counsel reverting again to the text of F.I.R. And the recording of statements of the P.Ws.
Under section 161 Cr.P.C. Has highlighted the salient features of F.I.R. As follows:-
(i) Entry of the Judicial Officers in jail on the woeful day is admitted.
(ii) Per F.I.R., no fault of any sort has been imputed to the police and has been explicitly mentioned in the F.I.R. That when the parleys failed, then police action started.
76. It has been highlighted that transportation of weapon inside jail might be negligence of jail staff/employees but how it can be imputed to the operational force; parleys continued not with the police officers/respondents, how their failure can be attributed to the respondents; inevitability permitted to invite police force inside jail by the Judicial Officers, how the entry of the police inside jail can be said intrusion or otherwise, again within the sight of the police if any cognizable offence or act of terrorism is committed or is likely to be committed or has been committed, then it remains the bounden duty of the law enforcing agenciei whosoever may be there to control the situation and after such an ugly situation, the operation was perpetrated to save the precious lives in which some causalities had taken place, it did not tantamount to killing operation, first impact of the case through F.I.R., it is lit lighting flames, the "operation was genuine for rescual" but gradually it was tried to be branded as "killing operation" for the best reasons known to the prosecution. In this context, another fact through arguments has been brought on record was that Fard Biyan Exh.PA duly signed by the complainant was presented in written form to CW-1 who was not a layman, had known the legal implications of the same, therefore, through circumstances it can also be gathered that the same was formulated by deliberations, thereafter to say that it was a killing operation, it is absolutely improper and not justifiable; the statements supplied to the respondents under section 265-C Cr.P.C. To notice them about the proposed accusation and the evidence, when the P.Ws. Deposed, the same was almost otherwise, their statements were got intently confronted, by this way, the prosecution story from the mouth of the prosecution has provided divergent versions of the occurrence; elucidating it further as P.Ws. Did not depose as per statements under section 161, Cr.P.C. And what they deposed by their statements was contrary to the statements, then how the statements for the first time made before court duly confronted can be relied upon, on this point, learned counsel submits that there is absolutely no ambiguity in law that such testimony made by the witness can be treated as his improved version, thus cannot be safely relied upon to record the conviction.
61. Learned counsel by picking out a sentence from the F.I.R. Exh.PA i.e. {{URDU TEXT}} ' has demolished the ocular testimony of complainant (P.W.38), Rai Naeem Kharl (P.W.32) and Abdul Rehman to the effect that throughout the operation, they remained inside the barrack, in the circumstances when the power was outaged, teargas shells were exploded inside ladies' barrack, indiscriminative firing was made, how they could see occurrence and later to it, the stance of the complainant that he had come out from the barrack before the operation activities is absolutely false.
' Another grey area has been prominently argued available in F.I.R. As below:-- {{URDU TEXT}} ' Learned counsel submitted that it is first version of the prosecution, how prosecution can be permitted to retreat on it, if has been done so, then no other. Inference is drawn except of mendacity.
' Learned counsel has given the excerpt, from the text of F.I.R. Exh.PA as follows:- {{URDU TEXT}} ' Upon it, learned counsel submitted that what the police could do more than that what had been done by it.
62. Learned counsel for respondents has categorized the arguments as follows:-
(i) How the F.I.R. Was lodged.
(ii) How the parleys commenced and failed.
(iii) How the actual action of firing was commenced and how the police officials present at the spot acted rather submitted themselves before Judicial Officers.
' It has been submitted that it is evident from the record that the complaint was drafted by the police for registration of the case and the same was read out by all Judicial Officers who were present there, thereafter, the same was not accepted, then again the written application was submitted by Muhammad Yousaf Ojla (P.W.38) the complainant of the case and this fact by itself established that the same was presented after consultation and deliberations and if the first version of the prosecution case was introduced through deliberations, how sanctity, can be attached to it, then it had happened in the case that this version was not adopted later on by making statements to the I.O. During investigation on 1-8-2003 while being present in the office of learned District and Sessions Judge, Sialkot, again when they appeared before learned trial court, they made their statements of their own, in this way, prosecution came up with three versions, statements of the P.Ws. Were duly confronted during cross-examination, now by precision the outcome of the appreciation of the ocular testimony would be that the P.Ws. Had been changing their versions on different occasions suitable to the prosecution and by prevarications. Learned counsel argued that unique point in this case is that ocular testimony has hinged upon statements of Judicial Officers, they were not the ordinary persons, everyone was holding the court and they knew the implications of improvements and contradictions or alteration/changing of the versions and if judgment of the learned trial court is seen on this point, then rightly conclusion was drawn that ocular testimony could not be believed ultimately by extending benefit of doubt, respondents' acquittal was ordered. Learned counsel on these points has relied upon following legal precedents:-
(i) Tafseer and others v. State (PLD 1960 Dhaka 1019)
(ii) State v. Bashir Ullah (PLD 1964 Dhaka 710)
(iii) Zeb Din v. State (PLD 1986 Peshawar 188)
(v) Rehmat Bakhsh alias Darogha Ali v. State (1970 P.Cr.L.J 1292)
(vi) Rehmat Ali v. State (1986 PCr.LJ 1394)
(vii) Daniel Boyed (Saif Ullah) v. State (1992 SCMR 196)
(viii) Falak Sher alias Sheru v. State (1995 SCMR 1350) .
(ix) Lanvain Traders Karachi v. Presiding Officer Banking Court, Karachi (2003 SCMR 1419)
(x) Mushtaq Hussain v. State (2011 SCMR 45)
63. It has been strenuously argued to discredit the ocular version that complainant Muhammad Yousaf Ojla, Rai Muhammad Naeem and Abdul Rehman P.Ws. Were present inside barrack when the operation commenced whereas learned Sessions Judge P.W.30 was present in the office of Superintendent of Jail then how these P.Ws. Could state the circumstances under which the operation commenced and moreso it is on record that firstly reports of explosion and firing of crackers were heard from the barrack and then the firing operation was commenced, if all these facts are taken jointly, then no other conclusion is drawn that their testimonies have worthless reliance as envisaged under Art.71 of Qanun-e-Shahadat Order, 1984.
' Commencement of parleys has also been commented and before arguing on it, the first version of the complainant set up in the complaint has also been read before as:- {{URDU TEXT}} ' Submitted that when this was the state of affairs about the parleys, then of course, there is no need to argue anymore on it, however, on the safer side, arguments are raised ad barram that none of the police officials participated in the process of parleys. It was the case of the prosecution that on failure of parleys, the operation commenced, then there was no option for the law- enforcing agencies present there, then another aspect is there that time and again, Muhammad Iqbal respondent/DIG asked the learned Sessions Judge if there was no necessity for any operation, he may be permitted to leave the premises of jail provided through a written order but the learned Sessions Judge remained indecisive/ unsettled and directions of the Hon'ble Lahore High Court, Lahore were also carried out by inviting the Army commandoes. It has been proved on record that efforts were made on account of their non-availability for the same, when all the circumstances were made so closed, then there was no option with the police to save the lives of the captives who were endangered by the captors to start operation and on account of operational proceedings, the number of lives as compared to the causalities were secured, then how it was said that it was a "killing operation" it was, in fact a "rescue operation". Learned counsel has further argued that no haste or undue haste was undertaken by the operational force to commence with the firing, the parleys remained incessant from 10-15 a.m. To 5-00 p.m., how much time could be provided to them and it was the prime duty of the persons who were engaged in the parleys to save for some time and when the complainant says that parleys failed, then obviously there was no option except to initiate operation, therefore, by any stretch of imagination, it cannot be said that parleys could succeed, have succeeded or likely to be succeeded.
64. Statement of P.W.30 Ch. Zafar Hussain, learned Sessions Judge has been referred to with reference to its paragraph No.5, the same is reproduced as follows:- "Sarfraz Mufti the the I.G (Prison) was negotiating with the culprits. The culprits demanded that Sessions Judge should himself talk to them. I was informed about this fact in the office of Superintendent Jail, then I with complainant and Rai Muhammad Naeem Kharl, Civil Judge came towards the ladies' barrack and went on the roof of the ladies' barrack and I reached the place where Sarfraz Mufti was negotiating with the culprits. He asked myself to stand on his back and not to have a dialogue with the culprits as he was busy in it. When the culprits were not acceding to his plea, I on my own came ahead, and I informed the culprits that their demands would be accepted, after obtaining permission from Hon'ble Lahore High. Court and we be permitted to contact Hon'ble Lahore High Court, Lahore. This dialogue eased them. During this conversion of myself with the culprits, DIG Police, DPO Sialkot and DPO Gujrat Raja Munawar were also standing on the roof of that ladies 'barrack'. Then, I came down from the roof of the ladies' barrack. At that time, complainant and Rai Naeem Kharl accompanied myself, DIG Police and DPO Sialkot and Gujrat also followed us as well as Sarfraz Mufti. I noticed that DIG and DPO Raja Munawar were preparing for the police operation. At that time, the entire ladies barrack had been encircled by the police force. A large number of police were present inside the jail premises. I forbade DIG from carrying out the operation, who harshly replied that the delay was being caused. Munawar Warraich, President of District Bar Association, Sialkot who at that time reached there, also emotionally asked not to start the operation as there was apprehension of murder of Judges in it, but DIG had not paid any heed to this advice also. I again informed him that he would not conduct the operation unless we seek prior permission from the Hon'ble Lahore High Court, Lahore, then he asked myself to contact the Hon'ble Lahore High Court, Lahore telephonically for requisite permission. When I and complainant reached near office of Superintendent Jail, the operation commenced. Crackers were used as well as teargas. The slogans were raised and thereafter, the firing started".
' Learned counsel submitted that all the P.Ws. Have made a "parrot like" statements and kept on importunating to portray the typical behaviour of Malik Muhammad Iqbal displayed by him before the operation while counseling with the learned District and Sessions Judge and during the operation and even thereafter towards the treatment of the injured Civil Judges but in fact it was absolutely wrong because it is on the record that time and again it was asked by the commander that if operation was not necessary, then he could recede back along with the police personnel but unfortunately neither the learned Sessions Judge P.W.30 nor Hon'ble Lahore High Court, Lahore has given any positive or negative instructions by bothering the solution of Malik Muhammad Iqbal, the then DIG but ultimately it was his duty to control law and order situation prevailing there; that P.Ws.
Have tried to twist/distort their statements vis-a-vis stance put forth in the F.I.R. Deliberately made dishonest and crafty improvements duly confronted and contradicted by their previous statements and has submitted that it is settled proposition of law that if P.Ws. Improved upon their earlier statements before learned trial court, then if it is contradicted, the same are liable to be thrown out of consideration without any second thought; that P.W.32 in its paras Nos.6, 7 and 8 about the commencement of the parleys, Rai Naeem Kharl and his co-P.Ws. Made statements before court by improving them and the same were got confronted. Another aspect has been highlighted by the learned counsel that deliberately later-on names of the police officials/officers were introduced, weapons were shown, use of flag jackets to save their lives but this fact was never ever mentioned in F.I.R. Argued strenuously that it remained in mystery, that how operation commenced and if genesis of the operation is shrouded, then intention or liability for the commission of murder cannot be imputed to the respondents.
' Learned counsel has further referred to the statement of P.W.34 Nazir Ahmad, learned Addl.
Sessions Judge and Sarfraz Mufti, Addl. I.G. Prison whose statements are very important so far as commencement of operation is concerned. Further argued that Syed Sebtain Kazmi, Naeem Sheikh and Javaid Iqbal Warraich learned Civil Judges being captives were present inside ladies' barrack and except them, nobody could know what had been happening outside the barrack. Rai Naeem Kharl P.W.32 in his statement before court in its paragraph No.33-A has categorically admitted that learned Sessions Judge could betterly explain why he did not pass written order for not carrying out the operation by the police, in this way, he had no explanation about the same. P. W.38 Muhammad Yousaf Ojla, in his statement through paragraph No.6 has shown that demands of the captors were conveyed to the high ups but they were not be worried; the situation inside the barrack was not out of control but suddenly electric light was switched off and the captors being conscious of the situation managed wetting their Chaders and crackers were thrown, 3/4 crackers exploded in the compound of ladies barrack, in this way, he has not explained that how firing started and by whom the firing started first time. Learned counsel submitted that all this was introduced later-on and normally it has been noticed that law-enforcing agencies do not press the triggers unless insurmountable position is faced, then the forces under the law right from the colonial system up-date rather bound to cope with the situation and if in this way, situation was so ugly, then mens rea or mala fide or maliciousness or criminal afore-thought by any stretch of imagination cannot be attributed to the operational force and the Jail Authorities, of course, remained less in powers vis-a-vis the operational force and this fact, has been argued that in the first incident when allegedly Ch. Zafar Hussain, learned Sessions Judge was fired at but he narrowly escaped luckily and the jail employee sustained injuries but the Jail Authorities did not initiate any action, ultimately, the complainant of the case invited the forces inside jail to control over the situation.
' Learned counsel has further argued that operational force under the command of Malik Muhammad Iqbal, the then DIG performed its duties, no excess was perpetrated by it. Learned counsel has referred to the statement of P.W.31 Javaid Iqbal Warraich, Exh.DE, Exh.DF, CW-2, P.W.31 as to prove confrontation. Learned counsel while relying upon the judgment of Hon'ble Supreme Court of Pakistan rendered in Mukhtara Mai's case titled the State v. ,Abdul Khaliq and others (PLD 2011 SC 554) has intensificationally argued that the signing of statements under section 161, Cr.P.C.
By the P.W.s. Is not an irregularity but the same is incurable illegality and this fact alone vitiates the statements because it was not the requirement of law that statements of P. Ws. Recorded under section 161 Cr.P.C. Should be signed by the author of it. Learned counsel has referred to pages No.406 to 409 of the statement of Javaid Iqbal Warraich P. W. In this context as well. Statement of P.W.33 Syed Sabtain Abid Kazmi has been referred to at page No.467 of the paper book in paragraph No.25, its last three lines are reproduced as under:-- "Only Judicial Officers were the hostages and none else. Rest of the persons present in the Ladies' barrack though were not permitted to go outside or came inside the barrack yet could not be termed as hostages".
' Then again paragraph No.26 is reproduced:- "The captors and rest of the Civil Judges apart from myself heard the remarks of three jailers that Sarfraz Mufti IG Prison was not worthy of credence or in a position to help them. I cannot say that the lady prisoners of that barrack also heard their remarks. I cannot say that Jail Doctor also listened those remarks. At that juncture of passing remarks, these three jailers were sitting nearby each other, and my position from them was about 5/10 feet. But I cannot narrate this exact distance of my position. They had stated in a loud voice which was heard by us. I had heard voice of these jailers"
' Another loophole in the prosecution case has been highlighted that dead bodies of the Judicial Officers were not post mortemed, had been so, then it might have supported the defence and no legitimate reasons have been brought on record by the prosecution for not being so on account of the same, defence has been seriously prejudiced. Learned counsel has laid his stress on arguments with reference to the statements of CWs. So far as summoning of the Army Commandoes was concerned, learned counsel has referred the statement of Zahid Saeed, District Co-Ordination Officer, Sialkot CW-4 and pointed out its Urdu version available at page No.1667 which has been reproduced as follows:- {{URDU TEXT}} ' Learned counsel has submitted that Elite Force, the District Police deputed for operational proceedings made utmost care that the causalities must be minimum and when signal of failure of parleys and non-availability of Army Commandoes, ultimately established, then there was no option will Malik Muhammad Iqbal except to carry out the operation.
65. Discussing the investigational chapter of this case, it has been argued that statement of the Investigating Officer is relevant in so far as collection of evidence is concerned though the court cannot be obliged to accept it but for the purposes of aiding to the justice, it can be taken into consideration. In this respect learned counsel has relied uponlegal precedents case titled Farrukh Javed Ghumman v. The State (PLD 2004 Lahore 155) and its relevant page in the judgment is 175 paragraph No.V, the same is reproduced as follows:--
(v) "The statement of the. Investigating Officer is admissible and is relevant only insofar as he collects the material which is to be produced as evidence during trial and records statements of those witnesses who ultimately depose in Court. However, during trial he cannot be a substitute for any of the above piece of evidence. He cannot prove a document of which he is not the author, nor play proxy to the witnesses who are not produced during trial without any cogent reason. His statement, in the afore-referred circumstances, is merely an opinion, which is both irrelevant and inadmissible. This is in line with the law laid down by the august Supreme Court in Moonda and others v. The State (PLD 1958 SC (Pak) 275) and Farman Ali and 2 others v. The State (1992 SCMR 2055)".
' Case Farman Ali and 2 others v. The State (1992 SCMR 2055) and its relevant Para is at page No.2062, the same is reproduced as under:- "The learned Counsel has heavily relied upon the opinion of the Investigating Officer about the culpability of Farman Ali alone in ' the case and about the innocence of the others implicated. Such an opinion of the Investigating Officer is not only irrelevant but inadmissible in view of the decision of the Supreme Court in Moonda and others v. The State PLD 1958 SC 275".
' Case titled Muhammad Arshad and others v. The State and others (PLD 2011 SC 350). Relevant pages are 362 to 363 paragraphs No.38 to 43 which are reproduced as under:-
38. We would, therefore, hold that allowing questions eliciting the opinion of an Investigating Officer about the guilt or innocence of an accused person which opinion he was not legally authorized or even allowed to form, was an illegality which could not be permitted. It may be added that if such-like questions were allowed to be asked and their answers were permitted to become part of the legal evidence and if such pieces of evidence could then be used for acquitting an accused person then why wouldn't they be usable for convicting people. We would shudder even to imagine the disastrous results which could then follow.
39. So much about the Code of Criminal Procedure. Let us now examine what the law of evidence has to say on the subject.
40. As per the provisions of Articles. 18 of the Qanun-eShahadat Order, 1984, it is only about 'FACTS' that evidence could be given in any suit or other proceedings. And according to the provisions of clause (d) of subsection (1) of section 2 of the said Order, 'Fact included: "(i) Anything, state of things or relating of things CAPABLE of BEING RECEIVED BY THE SENSES; and
(ii) Any material condition of which any PERSON IS CONSCIOUS."
(Emphasis and underling has been supplied.
' A 'FACT' is then something which has actually occurred; which some one knows through actual observation as against what is merely inferred; an assertion or a statement of a thing which actually exists or exists; an actual happening in time and space; an actuality; a reality; a thing done; an act performed; an event, an occurrence or a happening which had actually taken place and even a circumstance capable of being perceived.
41. The rule then is that evidence, at a trial or in other proceedings, could be led only about facts.
But then this rule, like other rules, is not without exceptions and one such exception is envisaged by Articles 59 to 65 of the said Qanun-e-Shahadat Order which accept even some 'OPINIONS' as evidence. These opinions, however, have to be of persons who are 'EXPERTS' in the relevant fields and were admissible only if they pertained to foreign law or to science or art or as to identity of handwriting or finger impressions or about the existence of any general custom or right or about the usages and tenets of'any body of men or family or about any religious or charitable foundations or about the meanings of the words or terms used in the particular districts or by the particular classes of people. And, it has been the consistent view of the Courts that an Investigating Officer could not be accepted as an expert nor could the investigation which, as mentioned above, was conductable even by an ordinary private persons, could qualify as science or even as art.
42. It is, therefore, held that even under the law of evidence, the opinion of an Investigating Officer was not admissible as evidence.
43. It is consequently declared that ' neither did the Code of Criminal Procedure authorize or allow the Investigating Officer to form opinions about the guilt or innocence of an accused person which was a purely judicial function performable only by a Court of law nor did the Qanun- eShahadat Order recognize opinions of Investigating Officers as admissible in evidence.
66. Learned counsel has submitted in the light of statement of respondent Malik Muhammad Iqbal recorded under section 342, Cr.P.C. By particularizing the answers to questions Nos.29, 30, 35, 38, 41, 43, 49, 50, 53, 55, 59, 61, 116 and 117 and explained the circumstances under which the operation was made thereafter improved the case of the prosecution, result of the investigation and the version of the respondent, then has tried to persuade the court by giving the conclusion that in all probabilities under the ambient circumstances, the version set up under section 342, Cr.P.C. Was required to be believed on account of its being verisimilitude rational and natural.
67. Learned counsel has phlegmatically argued that Ch. Zafar Hussain, learned District and Sessions Judge was recommended to be prosecuted under section 319, P.P.C., when this situation came during investigation, then he became hostile, thereafter, all the Judicial Officers under the special advice united to involve the operational force, otherwise there was no acerbity with the police officials/ respondents to kill captives. Learned counsel submitted that it was the plight of the Incharge of the Operational Force that he was kept on requesting that any explicit order either in the negative or in the positive through written form be given to him was that he might make of further planning for the carrying out of the operation or otherwise but when he saw situation had crossed the limits and precious lives of the captives Judges were absolutely on the knife-edge and when no other way was with hint, then he ordered for operation. Learned counsel in this regard has referred to and relied upon paragraphs. Nos.12, 13, 14, 30, 32, 42, 43, 44, 45, 46 and 47 to orchestrate his arguments and then again has reverted the court to the conclusion drawn by the learned trial court that it was "rescue operation" not "killing operation". Learned counsel then has referred his above statement recorded under section 342, Cr.P.C. And in continuum paragraph No.30 of the judgment, the same has been mentioned by the learned trial court the circumstances which were being faced by him 'before the inception of "rescue operation"; submitted that the prosecution throughout either in investigation or during trial remained unsuccessful to impute any aforethought malice even in meager quantity against the police for the assassination of captives.
Learned counsel deftly and phlegmatically has explained paragraphs Nos.52, "53, 54, 55, 56, 58 and 59 of the impugned judgment to establish that each and every aspect/fact of the prosecution case with reference to the cross-examination on the P.Ws., CWs and the DWs, by appreciating all of it, learned trial court came to the right conclusion in providing benefit of doubt to the respondents and acquitted them; submitted that causalities were much less which are only four in number so far as captives are concerned whereas 48 persons were rescued through operation, then how it can be said that it was killing operation. On jural point, learned counsel has referred to sections 127 and 132 of the Code of Criminal Procedure, 1898 that no offence can be made out against the police officials/officers when they are on duty and does any act to prevent and secure the human beings even through violence in order to maintain writ of the government as being functionaries of the law enforcing agencies. Learned counsel has again sought strength from the decision on pre- arrest bail application rendered by the Hon'ble Supreme Court of Pakistan reported in case of Doctor Ferdous (2005 SCMR 784) through its paragraph Nos.21, 22 and 25 wherein it has been already held by the Hon'ble Supreme Court much earlier to the proceedings of the learned trial court all possible measures were adopted/undertaken by the officials/officers. Further added that it was not operation made by the District Police but by the police commandoes who were meant for such type of operation were employed and they also participated in the alleged operation, therefore, being no mens rea attributed to the police officials, they cannot be held responsible and the judgment of the learned trial court whereby respondents have been acquitted has been based upon sound material, neither any perversity of law nor non-attending of facts and circumstances nor any miscarriage of justice has been occurred through the impugned judgment, the same warrants no interference. Added that after the acquittal of the respondents which they have earned by "due process of law" double presumption of innocence necessarily to be attached, then again another aspect of the case, has been highlighted that if the police is held responsible for punishment for its operational activities, then of course, it would tantamount to demoralize the force, in this way, it would be very difficult to control law and order situations in the Homeland.
Learned counsel has apprised the court that families of the Judicial Officers have been compensated as this court has paid Rs.10,00,000 each for each deceased to his legal heirs and Rs.20,00,000 each deceased by the Provincial Government and more so residential plots were also allocated to the deceased families so much so widow of one of the deceased was appointed as lecturer (English) by creating special seat. At the end, it has been remonstrated that it was very unfortunate that four young Judicial Officers lost their lives in the operation and, of course, there cannot be substitution to the human lives but the law has its own implications in order to punish or acquit the accused persons.
68. Dr. A. Basit, Senior Advocate for appellant/convict Muhammad Hafeez and respondent in Criminal Appeal No.78 of 2007 before arguing on merits has treated his conviction as shocking and ridiculous and has referred to paragraph Nos.110 and 112 of the impugned judgment, the same are reproduced infra:-
(110) Charge of Criminal conspiracy or abetment or criminal negligence against Sikander Hayyat, Ghulam Sarwar, Akhtar Iqbal, Riasat. Ali Head Warders and Abdul Aziz Warder is not established.
Raja Mushtaq Ahmad and Muhammad Hafeez Head Warder are also not involved for the offence of criminal conspiracy or abetment. However, prosecution has succeeded to establish the charge of their criminal negligence, facilitating the captors for launching murderous assault upon Sessions Judge and wrongfully confining the Judicial Officers in the ladies's barrack on the fateful day followed by Qatl-eAmd of Asif Mumtaz Cheema, Shahid Munir Ranjha, Sagheer Anwar at the hands of captors.
(112) Accordingly, I hold guilty Raja Mushtaq, Assistant Superintendent Jail and Muhammad Hafeez Head Warder for offence of concealing designs of the captors to launch murderous assault upon Ch. Zafar Hussain Sessions Judge and for commission of wrongfully confining Judicial Officers Asif Mumtaz Cheema, Shahid Munir Ranjha, Sagheer Anwar, Shehar Yar Bokhari, Javed Iqbal Warraich, Muhammad Naeem Sheikh in the ladies's barrack followed by Qatl-e-Amd of Asif Mumtaz Cheema, Shahid Munir Ranjha, Sagheer Anwar at the hands of the captors and accordingly convict them under section 119, P.P. C. Read with section 324, P.P.C. And sentence each of them to undergo R.I. For five years and also impose a fine of Rs.10,000 by each. In default of payment of fine, each defaulter will further undergo S.I. For two months. Each of them is also convicted for the offence under section 119, P. P. C. Read with section 342, P. P. C. (under fifth head of the charge, as the captors could not kidnap the Judicial Officers and commit offence under section 365, P.P.C.) and each of them is sentenced to undergo six months' R.I with fine of Rs.1500 and in default of the same, further S.I. For 15 days only. Each of them is also convicted for the offence under section 119, P.P.C. Read with section 302, P.P.C. And 7(a) of the Anti-Terrorism Act, 1997 (they have been charged under seventh head of Qatl-e-Amd of the deceased persons under section 109, P.P.C.
Read with section 302, P.P.C. And 7(a) of the Anti-Terrorism Act, 1997 and punishment provided under section 119 P.P. C. (under the same Chapter V of conspiracy is lesser than the offence provided under section 109, P.P.C.) and sentenced on three counts to undergo R.1 for 10 years. All these sentences shall run consecutively. Benefit of section 382-B, Cr. P. C. Is also extended in favour of the convicts. The convicts are acquitted from rest of the charges. Both of them are in custody and their custody is handed over to the Superintendent Jail, Gujranwala to serve the sentence in accordance with law. Copy of the judgment supplied to the convicts and learned PP for the State with the intimation that the 'former can file an appeal against this conviction judgment within seven days from today.
69. Learned counsel by referring to aforesaid paragraph No.110 of the impugned judgment wherein it has been mentioned by the learned trial court that "no evidence has been brought against Muhammad Hafeez for criminal conspiracy, however, prosecution has succeeded to establish the charge of his criminal negligence facilitating the captors for launching murderous assault upon Sessions Judge and wrongly confined Judicial Officers in the ladies' barrack and accordingly he was punished"; has argued that Hafeez remained a subordinate Jail employee and during days of occurrence he was having no nexus to the luggage used to bring inside the Jail and he was performing his duties inside the Football Factory situated intramural Jail; that even if the entire material is explored, no evidence of criminal conspiracy hatched by him with captors to launch attack upon the Judicial ,Officers present inside the Jail on the day of incident was insight; that so far as smuggling of weapons inside the Jail to hand over to the convict captors, is concerned, this allegation has not been attributed to the appellant as these duties were placed upon the other Warders, in this way, he had even no knowledge that what was being brought inside the Jail through wheelbarrows; that if the entire case of the prosecution is pondered upon through a broad spectrum and per chance visit of the learned District and Sessions Judge, Sialkot along with his learned fellow Judges on the day of unfortunate incident was not within the knowledge of the convict captors and there was no intention of the Jail Authorities i.e, particularly who were on duty that such like incident might take place inside the Jail; learned counsel has submitted that at the maximum statement of P.W.37 Malik Safdar Nawaz can be read against the appellant Muhammad Hafeez which did not point out any permissible incriminatory evidence to prove the charges against him. Learned counsel has further submitted that paragraph No.112 of the impugned judgment so far as the clandestine design of the captors to launch murderous assault upon the learned Judges has not been established by the prosecution evidence because when the appellant had absolutely no knowledge about the transportation of the weapons inside the Jail then how he can be imputed for hatching a machination for the commission of crime and moreso he had played no role absolutely in operational activities carried out by the law Enforcing Agency; that the Jail ministerial staff deputed at the Jail Gates, outer, inside Gates or even up to the ladies' barrack Gate and of Football Factory submitted that if anyone was found negligent in non-resisting or capturing the weapons brought from outside the Jail to be provided to the captors/convicts it would not be said that they were liable to any criminal act; that if the weapons were available with the captors then how one could know for prospective day of incident and the ingredients/components for constituting an offence under section 119, P.P.C. Did not exist to establish the case against the appellant/convict. Thus has prayed for acceptance of appeal.
70. Messrs Najeeb Faisal Ch. And Mr. Aftab Ahmad Bajwah, Advocates on behalf of Raja Mushtaq Ahmad convict/appellant in Criminal Appeal No.1933 of 2006 titled Raja Muhammad Mushtaq v.
The State has raised arguments that the whole file did not contain directly or indirectly incriminative evidence against the appellant and he remained aside in the hatching of criminal machination of occurrence and he did not participate in the operational proceedings rather for all practical purposes he had to be arrayed in the queue of captives. It has further been clarified that statement of P.W.37 Malik Safdar Nawaz and statement of CW.2 Ghulam Muhammad Kalyar rather supported the case of appellant for acquittal; that by referring paragraph No:21 of the statement of P.W.37 that on the day of incident, appellant was assigned multiple duties inside jail because of the same, it was not possible for him to gaze on the movements of the particular person outside the jail, inquisitionally department has held him innocent, then statement of CW.2 Ghulam Muhammad Kalyar through its paragraphs NO.81 had relied upon according to which he was found not involved in commission of crime. Further submitted that when the prosecution has failed to connect the appellant with the alleged commission of crime, then his conviction taken as travesty of justice and preposterousness not acceptable by law and has thus prayed for acquittal.
71. Learned counsel for respondents. No. 3, 5, 7, 10 and other respondents of Elite Force personnel in Criminal Appeal No.78 of 2007 has relied upon rules of Jail Manual 947, 938, 724, 1004, 1034, 930 and 940 to develop his arguments that on the saga day respondent No.3 Sikander Hayyat was on leave and this fact has been proved on the record beyond any shadow of doubt, he was not aware about the befalling of incident, when he got the knowledge of whispering as to criminal machination earlier to the incident, he made concrete 'efforts to control the happening of any untoward incident and in his absence/non presence when the charge was handed over 'to the Deputy Superintendent Jail namely Iftikhar Malik (since P.0), then he was responsible for the whole .
Internal management of the jail. When the learned counsel was asked to further interpret the rule 945 of the Manual ibid, then he again reiterated his earlier arguments and argued that the turbulents were booked in criminal case by the Jail Superintendent and best efforts were applied to maintain the law and order situation intramural jail but one thing remained unanswered that whether the miscreants were lodged separately? Learned counsel has further argued that Sikander Hayyat, Superintendent Jail was on leave and what happened in his absence cannot be imputed against him and no evidence of commonality of interests has been brought on record that he was privy to the captors for the alleged incident. Another aspect has been argued that prosecution has not made any effort to bring on record any additional evidence under section 428 Cr.P.C. To `connect the respondent No.No.3 (Sikander Hayyat) with the criminal conspiracy.
' So far as members of the Elite Force participated in the commission of occurrence i.e. Respondents No.12 to 23, it has been submitted that they were not nominated in the F.I.R. Nor in the supplemental statement nor they were put to test identification parade; no specific injury has been attributed to any of them, even otherwise they did nothing of their own. But they followed the orders of their seniors and of course, by virtue of members of discipline force, they were bound to obey the orders, in view of this, they cannot be held responsible by any means for the alleged commission of offence. Learned counsel submitted that dishonest improvements were made by the prosecution's witnesses in order to involve them and in this respect reliance has been placed on:-
(i) Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946,)
(ii) Sarfraz and others v. State (1999 Criminal Law Judgment (Cr.L.J) 649) and
(iii) Muhammad Hassan v. Ghulam Rasool (2009 PCr.LJ 940)
' As ace of his arguments, it has been submitted that even no scintilla incriminative evidence exists on the record against them. Added that in operational process maximum precautions were made with all bona fide and sincerity that less causalities might occur, otherwise loss to lives would have been more.
' Learned counsel has submitted that to maintain the peace and tranquillity in the society, it is the duty of the law enforcing agencies to deal with, the Jail Authorities can ask for assistance, if any turbulence occurs inside the jail but in this case more particularly the forces were involved by the complainant party for maintaining the law and order situation and once it was proved that under the colour of lawful duties an action was made by the law enforcing agencies, then forces cannot be held responsible for the same because they have performed their duties and in this case sensibly the forces did their job and if the courts punished the persons of law enforcing agencies for their official act, then no other conclusion, can be derived except to demoralize the forces, this would be against the spirit of Constitution as writ of the Government has to be maintained and in this respect reliance has been placed on:--
(i) State v. Mst. Fazelat Bibi (PLD 2010 Lahore 498) and
(ii) Safdar Hussain v. Muhammad, Azam Khan PLD 2009 Lahore 347.
' Argued that Raja Mushtaq Ahmad, Akhtar Iqbal and Ghulam Sarwar respondents Nos.1, 4 and 5 respectively who were the Assistant Superintendents of Jail, on duties, on the misadventure day of incident, they were also made to hostages by the captors in the ladies' barrack and allegations against them that they incited/ prompted the captors to discontinue or to let the proceedings of parleys incomplete because of their un safety because P.W.27 Sarfraz Ahmad Mufti, the then Addl.
I.G. (Prisons) who had engaged in parleys was not reliable but this stance of the prosecution has not been substantiated by any solid evidence. These persons had got their statements recorded under section 161, Cr.P.C. And in the occurrence, Ghulam Sarwar also received injuries by blunt means at the hands of the captors, if all these factors are reckoned in the light of overall circumstances of the case, then no conclusion is drawn except that these three persons were also innocent. CW.2 Ghulam Muhammad Kalyar has referred to through his statement available in paragraph No.79 of his statement, CW.1 Sana Ullah in his statement available in paragraph No.65 has cited them as witnesses in the case and their statements under section 161 Cr.P.C. Were also recorded. Learned counsel has further relied upon statement of P.W.37 Malik Safdar Hayyat, the then Deputy Superintendent Jail recorded in paragraph No.37, he had stated that from 17-2-2003 to 25-7-2003 the duty of Ghulam Sarwar was not to check the visitors. By referring to rule 10.45 of the Jail Manual, the officiating Assistant Superintendent or Deputy Superintendent shall have to step in the shoes of the Superintendent Jail and has to perform all duties as Superintendent as well as his own duties and on the day of incident, Mohsin and Jameel were the Warders who were deputed to bring inside the luggage, victuals and others articles of the accused persons. While concluding arguments, learned counsel has prayed that acquittal of the respondent has been based upon reasons supported by material, cannot be said to be perverse, fanciful and has caused miscarriage of justice, therefore, appeal against acquittal of the respondents may be dismissed and their acquittal may be stamped.
72. Learned, counsel for respondent No.4 has argued ad barram by referring particular paragraph No.65 of the impugned judgment and, further therein its content No.8 to prove that respondent did not participate in the incident and has been made scapegoat in the instant case in order to save the higher hierarchy of the Prisons; paragraphs Nos.72 and 73 of the impugned judgment has also been read in this respect and has submitted that the reasons assigned by. The learned trial court in acquitting the respondent No.4 are very much available on the record. On the jural side, it has been explained that when two interpretations are conveniently and legitimately can be made, then the law requires that interpretation favouring accused has to be adopted, when no incriminative material was in existence, then obviously it was mandated on the learned Court to acquit the respondent. Learned counsel has then spoken beautiful phrases Of English language which are normally used in the legal language in so many judgments such as the judgment of acquittal qua him is neither ridiculous, erroneous nor capricious and arbitrary. Element of misreading or non- reading of the evidence did not exist, therefore, in support of his arguments, he has relied upon:--
(i) Muhammad Aslam v. Sabir Hussain and others (2009 SCMR 985)
(ii) State of Rajistan v. Sheram alias Vishnu Dutta (2012 SCMR 1768) and
(iii) State through Mehmood Ahmad Butt v. Sharaf ud Din Sheikh (2013 SCMR 565)
' Further argued that his case may be taken sympathetically with commiseration because he is the learned person and has written two books i.e. One "Chen Chakoor" and other "Jail Aik Dunya", therefore, upholding of his acquittal, has been solicited.
73. For \M. Mehmood Butt, Incharge Elite Force, Muhammad Asghar Constable and doctor Sajid Hussain respondents, Malik Amjad Pervaiz, Advocate has argued that qua the case of doctor Sajid that he was neither named in the F.I.R. Nor in the addendum statement of the complainant Muhammad Yousaf Ojla recorded on 27-7-2003 or in his deposition as P.W, injured Shehar Yar Bokhari by applying all efforts to save his life was referred to PIC, Lahore for further treatment, doctor attended to him there had deposed that locally he was managed upto maximum but his unfortunate death cannot involve the doctor Sajid Hussain on the simple ground that deceased never died in Sialkot nor he took part in his treatment as the injured deceased Shehar Yar Bokhari was surgically dealt with by doctor Ejaz Chattha, Senior Surgeon (not produced) whom the respondent doctor Sajid was assisting in the operation theatre, he just completed the operation notes on the advice of Senior Surgeon, he being played the accessory role in the operation theatre, cannot be held responsible for the death of the deceased and so far as referral, of the deceased to PIC, Lahore was concerned, it has not been proved by the prosecution through any evidence that improper management was made as neither driver of the said ambulance nor any other attendant of the ambulance was produced as witness. So much so the number of the ambulance has not been made conspicuous by the prosecution either before the Investigating Agency or during the trial; close and safe journey of the injured Shehar Yar Bokhari did not fall within the duties of the doctor Sajid Hussain but it was the duty of doctor Ferdous (since been acquitted under section 265-K, Cr.P.C. And maintained by this Court); that all injured persons were bestly treated locally by the doctors and more particularly P.W.28 doctor Abdul Waheed, Associate Professor of PIC Hospital had appreciated the treatment of deceased- Shehar Yar Bokhari. Learned counsel has also referred to documents produced by the doctor in his defence as Exh . DO , Exh. DP, Exh DQ , Exh . DR, Exh.DS, Exh.DV and Exh.DB in support of his arguments. While meeting with the objections raised by the learned counsel for appellant qua the answers furnished by the respondent doctor Sajid to the questions put to him in his statement under section- 342, Cr.P.C., it is submission of learned counsel that since questions did not relate to the respondent that is why he did not feel it necessary to answer the same which answer cannot be treated as an evasive answers and that answers cannot be read and used against the respondent/doctor. Another serious objection has been met with by the learned counsel for respondent advanced by the prosecution that after offering himself to be examined under section 340(2), Cr.P.C. In disproof of the allegations and charges levelled against him by the prosecution, he reneged of it, therefore, respondent can be presumed guilty. Learned counsel submits that neither it was compulsive nor mandatory and the same has also been declared unconstitutional, it being discretionary, nobody can be forced for the same, last but not least, learned counsel submits that case of the respondent doctor Sajid stands on better footing as compared to the case of doctor Ferdous who had been finally acquitted, therefore, impugned judgment of acquittal may not be reversed to conviction as valuable right has accrued in favour of the respondent doctor Sajid.
74. Learned counsel for appellants (convicts) as well as respondents (acquitted) have concluded their arguments.
75. On the eve of conclusion of arguments, now again learned counsel for appellant Syed Ghulam Abbas Bokhari has replied shortly to the arguments while relying upon case titled Muhammad Asghar and 4 others v. The State (2004 Supreme Court Judgments 387) and submitted that in case the acquitted respondents are convicted and sentenced, then their period of conviction shall be reckoned from the day of incident and then all benefit incurred in their favour during the said period shall be ordered to be forfeited indistentarly and has also pointed out the typical behaviour of the police respondents remained partway hearing of the instant matters being uncalled for may also be jotted down in the judgment.
76. Arguments heard in extenso, intently, as well as assiduously. Record perused with eagle eyes.
Precedential laws cited gone through.
77. Prosecution case mentioned by the complainant in Exh.PA was that on woeful day i.e. 25-7- 2003,-Ch. Zafar Hussain, the then learned District and Sessions Judge, Sialkot alongwith complainant Muhammad Yousaf Ojla and other Judicial Officers inspected the District Jail, Sialkot in routine to attend the complaints of accused persons; there five convicts captors/deceased namely Muhammad Shehbaz Butt, Ejaz Ahmad, Ashfaq alias Ishaq, Muhammad Rafique alias 'Kona and Munir alias Muniri, all armed with .30 bore pistols mounted murderous assault upon the learned District and Sessions Judge who closely escaped, this incident took place at 10-30 a.m.
Where after learned Sessions Judge proceeded to the office of Superintendent Jail whereas Muhammad Yousaf Ojla, the Complainant alongwith Abdul Rehman and Rai Naeem, the learned Civil Judges entered Barrack No.8 whereas remaining Judges were made hostage by the captors in the ladies' barrack. The complainant telephonically informed DPO Sialkot Amjad Javaid Saleemi/respondent/accused and after a short while, police force arrived at, parleys commenced with the captors but ended in failure whereupon the police took action and on the ceasation of firing, they came out of the said barrack and learnt that Saghir Anwar, Asif Mumtaz Cheema and Shahid Munir Ranjha, the learned Civil Judges had met death on account of firing whereas Sheharyar Bokhari, Javaid Iqbal Warraich and Sebtain Raza Kazmi, learned Civil Judges alongwith some others received injuries. It also came to the knowledge of the complainant that five captors whose names have already been mentioned were also done 'to death. This incident was the result of criminal machination of Jail Authorities because without their conspiracy, it was not possible to bring the firearms inside the jail. After the incident, the complainant with the assistance of police force took the deceased and injured judges to DHQ Hospital, Sialkot. The complainant while being in the jail premises at 5-40 p.m. Made a statement to Sana Ullah S.I. (CW.1) which was reduced into writing, read over to him who in token of its correctness signed the same. Exh.PA the complaint was sent to the Police Station through Moaz Raza 1100/C for the formal registration of F.I.R. And on the basis of the same Amjad Ali S.I. Recorded formal F.I.R. Exh.PA/1 at 5-50 P. m.
78. After the registration of the case, on 27-3-2003, the complainant got his addendum statement recorded as Exh.CW.2/2 wherein he mentioned that at the time of recording complaint Exh.PA for the registration of F.I.R., he being deprofundis and overclouded, on account of death of three Civil Judges and on account of injuries to three other Judges, he could not compose himself and left certain main facts out in Exh.PA and now the same were narrated by him in the following words:- "He mentioned that he came out from the Barrack No.8 after about one hour and reached in the office of the Superintendent Jail where District and Sessions Judge was present directed him to intimate DIG Gujranwala holding the command of police that no action shall be perpetrated by him except by the prior permission of Lahore High Court, Lahore and the Sessions Judge for the release of captives Judges, upto the maximum, they (Judges) shall be tried to be released through a safe way and if the operation was inevitable, then the same shall be made by only the Army Commandoes and none else but the DIG Malik Muhammad Iqbal of his own started police action and heard indiscriminated fire reports who by flouting the direction of the learned District and Sessions Judge, commenced action. The members of the Elite Force deployed for operation had no identity of the Civil Judges, that is why it was not rescue operation but it was an attack resulted in death of three judges as well as causing injuries to three other Judges. This all was done by DIG Malik Muhammad Iqbal, DPO Amjad Javaid Saleemi and other police personnel as an onslaught and this all come within the mischief of sections 6/7 of the Anti Terrorism Act, 1997 and other provisions of law noted in the F.I.R.".
79. Taking the prosecution case first for its evaluation, it has been observed through close and naked study of the First Information Report that responsibility of A the rueful incident was reposed upon the shoulders of Jail Authorities. But thereafter with the delay of two days a new version was introduced by complainant that in fact the incident has taken place on account of res Integra attitude of the then DIG Gujranwala Malik Muhammad Iqbal, the commander of the operation. The first version and in the second version by giving pace of two days inter se showing that the complainant took complete "U" turn in his supplemental statement and all responsibilities and liabilities of the incident were reposed upon the operational force. In this way, he had tried to absolve the Jail Authorities. Herein, it would be appropriate to mention that the complainant remained present as he had accompanied with Ch. Zafar Hussain, learned District and Sessions Judge inside the jail and he had the knowledge of first incident which had taken place at 10-30 a.m.
And also the knowledge of the second incident (police operation), then it is understandable that complainant B changed his version and introduced a new story through supplementary statement.
The complainant as being Judicial Officer must have known the implications of the supplementary statement. At the earliest, after the registration of the case, the complainant party reneged of the story df F.I.R. Precisely here the conclusion can be drawn that perhaps the complainant party was not able to impose responsibility of the incident either on the Jail Authorities or on the operational force. It has also been observed that supplementary statement of the complainant Exh.CW.2/2 appears to be the Urdu rendition of the letter of learned District and Sessions Judge addressed to the District Police Officer, Sialkot Exh.PBBBB. Comprehensibly injured civil judges .Except Shehar Yar Bokhari were able to make statements to the investigating officer and the record has guided the court that they remained in confabulating to the complainant and Ch. Zafar Hussain, learned District and Sessions Judge, then why the second version was not incorporated in the F.I.R. At the relevant time and why the first version mentioned in the F.I.R. Has been not accepted in totality by the complainant party. Record absolutely guides that the operational force was invited inside jail by the complainant telephonically on account of ineluctable circumstances occurred there. About the first incident which had taken place at about 10.30 AM, in which the learned District and Sessions Judge remained unscathed luckily and a jail employee received fire shot injuries was neither reported to the police in the post haste nor his medical examination was carried out. It remained mysterious for not reporting it to the police either by the jail authorities or, by the Judicial Officers, notwithstanding, the premises of the Police Station Civil Lines, Sialkot was located across the road opposite to the jail premises. After all, it was a cognizable offence.
80. On the commencement of the investigation after the registration of the case, on the day of incident, locational possessing of articles as crime empties, blood imbrued earth etc. Were taken into possession. On the 3rd day of incident i.e. 27-7-2003 the complainant made supplementary statement. The injured Civil Judges during the said three days did not make any statement before the Investigating Officer; notwithstanding, they were in a position to do so. None of them of their own submitted any application before any competent authority about the actual facts and circumstances of the happening of incident, their mute attitudes speak volumes. Record establishes that the I.O. Has been visiting them for recording their statements but they did not do so for one or the other ,reasons. It is noteworthy.Here that they were not the countrymen rather the Judicial Officers and knew the implications of making of delayed statements before the. I.O. But nevertheless they did not bother. A Joint Investigation Team was constituted headed by Ghulam Muhammad Kalyar, DPO Kasur (CW.2) directing him to keep abreast about the progress of investigation to two Judicial Officers namely Syed Iftikhar Hussain Shah, learned Judge Anti- Terrorism Court, Gujranwala and Riaz-ulHassan Alvi, learned District and Sessions Judge, Gujranwala. On 1-8-2003, the P.Ws. Had handed over their statements written in the English and duly signed by them to J.I.T in the office of P.W.30. It is enigmatic that after-all why the two supervisory officers of the investigation did not bother for recording statements of the P.Ws. At the earliest and even record has been found mute that any direction or instruction was ever passed on by them to the P.Ws. To make their statements and even after their statements made on 1-8-2003, none of them ever get explanation as to their delayed statements. Indubitably, all the injured judges (P.Ws.) were subordinate of Ch. Zafar Hussain P.W .30. Circumstances, accumulatively give an impression that written statements produced before the I.O. Might have been prepared through a joint venture by due deliberations and consultations.' If this was the state of affairs on behalf of the prosecution, then how the Investigation Team can be blamed for carrying out allegedly biased investigation.
' Another aspect regarding the statements of the P.Ws. Is very vital in this case that according to the police, the English statements in written form of the P.Ws. Were incorporated in the police case diaries separately of each P.Ws. And thereafter those were not made part and parcel of the police case diaries, these statements were handed over to the accused persons by the learned trial court under section 265-C, Cr.P.C. On the commencing of the trial but when the P.Ws. Were examined by the learned trial court, they did not accept those Urdu rendered statements and then they made another version before the learned trial court in their depositions. The defence got their statements confronted with the statements supplied to the accused persons/ respondents under section 265- C, Cr.P.C. The critical analysis of these statements is that the prosecution has given diverse versions of the occurrence and chiefly can be trifurcated as under:-
(i) Version mentioned in the F.I.R. Exh.PA.
(ii) Version brought on surface through supplementary statement of the complainant dated 27-7- 2003 Exh . CW. 2/2 .
(iii) Statements in written form in English Language statedly signed by the P.Ws. Produced before the I.O. In the office of P.W. 30 on 1-8-2003 and then
(iv) Statements made by the P.Ws. Before learned trial court (duly confronted)
' In this backdrop of the prosecution case, how the P.Ws. Can be believed despite the fact that they are the injured persons and their presence at the spot has been admitted.
' Another very important point has been noticed that the supervisory Judicial Officers over the investigation never ever complained that investigations were not carried out impartially and unbiased.
81. At one point of time, partway investigation, it came to light that prosecution of Ch. Zafar Hussain, learned District and Sessions Judge was recommended under section 319, P.P.C. Because he while disregarding the standing directions of Lahore High Court, Lahore not accompanied him the requisite Judicial Officers for jail visit rather took along more persons. Here, it is understandable that he being the incharge of the Judiciary in the District could accompany and his this act cannot be made him culpable for any criminal act. On the relevant date, Malik Khalid Mehmood, learned member of District Bar, Sialkot died and to mourn his death, learned members of the Bar were not appearing before courts and on account of the same, Judicial Officers accompanied him for jail visit for redressing the grievances of the accused persons. He after having been murderously assaulted did not leave the premises of jail but remained with the Judicial Officers. Had his intention otherwise? He would have left the premises, therefore, by any stretch of imagination, he could not be dragged to face trial in the case.
' Law of the land is very much settled by this Court as well as by the Hon'ble Supreme Court of Pakistan that supplementary statement of a complainant adding or omitting something to the F.I.R.
Carries no legal value. To be more particular, this proposition of law is explained like this when a complainant/witness had the knowledge of all circumstances' of an incident, then he brings those on record in a piece meal way, necessarily be regarded as doubtful. In this case, it has been noticed that through the statement of CW.1 that complaint was formulated by police when it was placed before the complainant, he did not accept it and thereafter the complainant got recorded Exh.PA, this fact ipso facto persuades that deliberated Exh.PA was brought on record, then how and why material facts allegedly brought on record through the supplementary statement were not incorporated in Exh.PA. It is the stance of the complainant that before crime report Exh.PA, he had met P.W.30, the facts narrated in the supplementary statement were already in his knowledge. So far as the stand of the complainant that he being doleful could not make mention some facts in Exh.PA is concerned, such-like excuse/ excuses/explanations cannot be permitted/ endorsed by the law of the land, otherwise the system of criminal administration of justice would definitely be packed. The complainant himself did not receive any injury in the incident, then how it can be derived that he was in harrowing and fazed.
' Another jural point in the background of supplementary statement is cropped up that why the complainant and other P. Ws. Took another stance before the learned trial court departing from earlier neither the complainant nor any aggrieved person on behalf of the deceased Civil Judges came to the court by filing a private criminal complianant. The prosecution has been seen blowing hot and cold in the same breath as on one hand dishonesty and partiality has been imputed to the investigation and on the other hand, it has been brought on record that it outcome may be believed. For better understanding the point of law, the court has been guided by illuminary legal precedents reported in case titled Khalid Javaid and others v. The State (2003 SCMR 1419), Mushtaq Hussain v. The State (2011 SCMR 45) and Falak Sher alias Sheru v. The State (1995 SCMR 1350) where the Hon'ble Supreme Court of Pakistan has held as to the appreciation of supplementary statement and post (b) and (d) of (2003 SCMR 1419) are reproduced infra:--
(b) Penal Code (XLV of 1860)--- "S.302(b)---Criminal Procedure Code (V of 1898), S. 154---Reappraisal of evidence---First Information Report under S.154, Cr.P. C. Is normally considered as a corner stone of the prosecution case unless it is shown that on account of some mala fide intention a wrong version of the complainant was recorded by the investigating agency with a view to allow the real culprits to go escort free and to involve innocent person in the commission of the offence or complainant in order to misguide the investigation lodged false report i.e. F.I.R. Or supplementary statement with ulterior motive".
(d) Criminal Procedure Code (V of 1898)--- Ss. 154, 156 and 161---First Information Report and supplementary statement by the complainant-- -Evidentiary value---First Information Report is a document, which is entered at the complaint of the informant into a book, maintained at the police station under 5.154, Cr.P.C.--- First Information Report is signed/ thumb-marked by the informant while the supplementary statement is recorded under 5.161, Cr. P.C. And is not signed---F.I.R. Brings law into motion---Police under S.156, Cr. P. C.
Starts investigation of the case---Any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with F.I.R. Nor read as part of the same and the value of 'the supplementary statement therefore will be determined keeping in view the principles enunciated the superior Courts in this behalf".
' Scheme of law requires that prospective / intended accusational statements/material must be supplied to the accused persons in order to enable them to defend themselves. Statements of the P.Ws. Recorded under section 161, Cr.P.C. And other documents are required by law to be delivered to the accused at least seven days I before the commencing of the trial, if any P.W. Or P.Ws. Make statement before the court by deviating former statements and then the statements are duly confronted with the court statements under Art.153 of Qanun-e-Shahadat Order, 1984, as well as section 162, Cr.P.C. Then obviously the law requires that such-like statements can be thrown out of consideration if some material as well as dishonest or crafty improvements are made, then on the basis of same, such statements have to be excluded from appreciation. P.Ws. Did not accept their statements translated by police in Urdu from English and for the first time before the learned trial court, they had made statements different to the copies supplied to the accused persons under section 265-C, Cr.P.C, then how the version introduced for the first time before court can be believed, more so, contradicted/confronted. In these circumstances, the veracity as well as the credibility of the P.Ws. Has become dubious and when their such statements have not been found corroborated by any other independent material, then their testimonies are liable to be brushed aside. The learned trial court while disbelieving the P.Ws. (eye-witnesses) has assigned convincing, legal, justifiable and acceptable reasons available on the record. It has been noticed that the learned trial court did not rely upon any material extraneous to the material available on file and while acquitting the respondents has not committed any illegality.
82. Another decisive factor has been faced by this court is to determine whether the operation was "rescue" or "killing". To appreciate the same, the court has to revert back to the happening of incident on arrival of Judicial Officers inside the jail under the supervision of Ch. Zafar Hussain P.W.30 and on the return after attending to the complaints of the accused persons at 10-30 AM, he was attacked upon by the captors/deceased who remained unscathed. The deceased judges as well as injured were made hostage by the captors upon which the complainant Muhammad Yousaf Ojla, telephonically established contact with DPO Sialkot Amjad Javaid Saleemi respondent for help. After a short while, the police came inside jail, then at one point of time, Malik Muhammad Iqbal, the then DIG Gujranwala also came inside jail in order to rescue the hostages, District and Sessions Judge, P.W.30, Jail Authorities as well as AIG (Prisons) Sarfraz Mufti P.W.27 commenced parleys with the captors who made demands to provide them 72 seaters bus, 05 Kalashnikovs, decision of their murder case which was scheduled to be announced on the following day of incident i.e. 26-7-2003 be deferred for six months, moderate quantity of ammunition may be provided to them for their safe quittance from the jail and safe journey be ensured upto the destiny of their own choice and undertook not to cause harm to any of the hostages and official accompanying by them and would drop them at a proper place. These demands were put forth before the learned Sessions Judge to seek instructions from the Lahore High Court, Lahore for their fulfilment. Parleys remained continued for a sufficient time upto the happening of instant incident.
Police operational force . Remained ready to rescue the captive judges through operation but the DIG and other responsible Senior Police Officers did not permit it to carry out and when the P.W.30 went in the office of Superintendent Jail for seeking instructions from the High Court, he heard the noise of crackers and came to know that operation has been commenced. According to the prosecution's version, complainant and P. Ws. After the first incident, entered in 'barrack' No.8 while deceased and injured judges were made hostage by the captors in ladies' barrack whereas learned Sessions Judge was present in the office of Superintendent Jail. Neither the complainant and his accompanying persons mentioned above nor the learned Sessions Judge could see the initiation of the operation of the police force whereas the injured Civil Judges namely Javaid Iqbal Warraich P.W.31, Rai Muhammad Naeem P.W.32 and Syed Sebtain Abid Kazmi P.W.33, Shehar Yar Bokhari the deceased alongwith Asif Mumtaz Cheema, Saghir Anwar and Shahid Munir Ranjha were the hostages in the barrack, thus, could not see outside the barrack as the electric power had already been switched off and teargas shells were also exploded inside barrack before starting of firing of the operational force and prior to it, inside the barrack, fire was made by the captors. One of the Judges namely Asif Mumtaz Cheema was killed with the firing of captors inside the barrack by the captors. In the immediate version of the prosecution, police force was not blamed for the incident. On the 3rd day of occurrence, through supplementary statement, the police was involved and after much later on 1-8-2003, a deliberated version was introduced by involving the force that too, without attributing any specific role to any of the members of the operational force qua any of the deceased or injured persons. In the said barrack, there was total 52 persons detained including 12 Judges as hostages out of whom, three captives Judges lost their lives in the operation and four were injured amongst them, Shehar Yar Bokhari died later on at PIC, Lahore whereas five captors were also killed and 48 captives were got released. In this way, maximum human lives were saved through operation.
' It has come on record that Malik Muhammad Iqbal Incharge of the Operation, time and again was asking the learned Sessions Judge that if the operation was not needed, then he may be permitted by writing to leave jail premises alongwith forces. Learned Sessions Judge remained unresolved over it. Another very important aspect has been brought on record that when the instructions were issued by the Hon'ble Lahore High Court, Lahore, that operation if needed be, be carried out by the Army Commandos, then maximum efforts were undertaken to invite them but unheeded.
' It is the foremost duty of the law enforcing agencies to keep the law and order situation maintained where it erupts. The police force on account of emergent situation was invited inside jail to meet with this situation by the complainant himself, it took about seven hours avoiding the operation to defuse the situation but as per evidence when the fire shot was reported from inside the ladies' barrack, then there was no option with the DIG/respondent except to order for carrying out the operation. If at that particular juncture, the operation was not ordered, then there was prospective of more loss to the lives of the captive judges at the hands of the convict/captors.
' Another law point exists that if the operation could not be carried out, then the DIG/respondent or other responsible police officers present there must have been made responsible for the loss on account of their non-fulfilment of statutory duty to prevent further terrorist acts. Through minimum loss, maximum was gained through the operation. In order to maintain the law and order situation, law enforcing agencies have been protected and section 5 of the Anti-Terrorism Act, 1997 empowers forces to prevent acts of terrorism by applying force. Even otherwise, the actions for the forces in performing to the official duties are protected by the general exceptions available in Pakistan Penal Code, 1860 and for better understanding, sections 76, 79, 80 and 81 are reproduced hereunder:--
76. Act done by a person bound, or by mistake of fact believing himself bound, by law.---Nothing is an offence which is done by a person who is, or who by reason of mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.
' ILLUSTRATIONS:
(a) A, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered, by that Court to arrest Y and after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
79. Act done by a person justified, or by mistake of fact believing himself justified, by law.--- Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
' ILLUSTRATION: ' A sees Z commit what appears to A to be a murder. A in the exercise, to the best of his judgment, exerted in good faith of the power which the law gives to all persons of apprehending murders in the Act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may turn out that if Z was acting in self-defence.
80. Accident in doing a lawful act.---Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
' ILLUSTRATION:
(a) A is at work with a hatchet; the head flies off and kills a man who is standing by. Here if there was no want of proper caution on the part of A, his act is excusable and not an offence.
81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.--- Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property: ' Explanation. It is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.
' ILLUSTRATIONS: -
(a) A, the captain of a steam vessel, suddenly and without any fault or negligence on his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B,. With twenty or thirty passengers on board, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat C with only two passengers on board, which he may possibly clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may run down the boat C by doing an act which he knew was likely to cause that effect, if it be found as a matter of fact that the danger which he intended to avoid was such as to excuse him in incurring the risk of running down C.
(b) in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it be found that the harm to be prevented was of such a nature and so imminent as to excuse A's act, A is not guilty of the offence."
' Here it is markedly desired that interpretations of above mentioned legal provisions may not be permitted to be made liberally in favour of forces so that innocent people may not be killed by gun plays on pretext of observations made through this judgment because forces are constitutionally and legally mandated to jealously safeguard the life, liberty and property of the subjects.
' Immediate after the operation, the injured P.W.31 to P.W.33 and the deceased judges were taken to Allama Iqbal Memorial Hospital, Sialkot where they were medically treated and on account of precarious condition of Shehar Yar Bokhari referred him to PIC, Lahore by providing him medical treatment in the Hospital. The perusal of the record further reveals that it was never brought on record that operational force intended to kill anybody for the rescue of the captive Judges. All circumstances available accumulatively justify proceedings of the police force as "rescual operation" and not the "killing operation". No malice or spite can be attributed to the operational force because no element of any sort of enmity, wroth or aforethought has been brought on record by prosecution and if one be more particular, then it would be sufficient to mention here that DIG was ready to leave the premises of jail without any proceedings but he was not permitted so in black and white by P.W.30 rather no other person was prepared/ready to take any responsibility for their release. Eelement of actus reus cannot be attributed to the police force.
' Another enigmatic aspect of prosecution .Case is that Investigating Officer did not appear as prosecution witness and on cross examination by Syed Ghulam Abbas Bokhari, learned Advocate, he denied vehemently to the suggestion of his being won over by the accused party. So, it can safely be inferred in this background that element of "actus reus" of operational force did not exist.
Same is the position of CW.2 Ghulam Muhammad Kalyar, the member of the Joint Investigation Team, a report Exh.CW.2/1 was submitted by it. This is a major hiatus left by the prosecution in its case and is sufficient to pull the structure raised by it down on the basis of Exh.PA and Exh.PA/1.
83. After examining the case of the prosecution on the factum of medical evidence, it has been noticed that the learned Sessions Judge did not allow the post mortem examinations of the dead bodies of the deceased Judges but were examined by the Medical Officer externally.
84. P.W.17 Dr. Abdul Saboor examined the dead body of Shahid Munir Ranjha, learned. Civil Judge, Sialkot and found firearm injury existed on the right temporal bone with blackening and inverted margins to its exit through injury No.2. Similarly, he also examined the dead body of Saghir Anwar, Civil Judge and found the injury at his chest containing blackening over the entry wound. These injuries sustained by the deceased Judges are indicative of the fact that they were fired from very close range and there is every probability that their death was caused by the captors who were staying close by them whereas police force, at that time was present at a quite distance. It has also been established through evidence as noted above that on hearing the fire shot from inside of the barrack, the operation by the police was commenced. In that operation, no doubt, the other Judicial Officers had also received injuries who had described the same in their testimonies by appearing as P.W.31 to P.W.33 and Shehar Yar Bokhari, later-on deceased was one of them. In this way, it can certainly be said that it was the captors who instigated the police for the commencement of the operation.
85. As per contentions raised by learned counsel for the appellant Syed Ghulam Abbas Bokhari, Advocate, Shehar Yar Bokhari, learned Civil Judge had died due to the firing of the police and subsequently for not providing him proper medical treatment at A.I.M. Hospital, Sialkot and in this respect doctor Sajid Hussain M.O. And doctor Ferdous M.S. Of the said hospital were responsible for not arranging proper transportation to the PIC,' Lahore. The court had minutely examined through the material. As per version of P.W.38, after ceasation of the firing, he with the help of the police took the injured Shehar Yar Bokhari alongwith other injured and dead bodies to A.I.M. Hospital, Sialkot.
Further P.W.31 to P.W.33 who also received injuries were also shifted to the said hospital and according to their own testimonies, they were treated at the hospital enabling them to appear in the court for their examinations. All these three injured in their testimonies did not support the allegations of mistreatment or mismanagement and his transportation by the doctors. P.W.38 had commented upon this fact but he did not explain as to why he did not accompany the injured colleague to Lahore being the Senior Civil Judge of the District. The evidence led by the prosecution on this fact is based upon conjectures and does not lend any support to it. It is evident from the statement of P.W.28 doctor Abdul Waheed of P.I.C. Lahore that the injured Shehar Yar Bokhari was proper treated according to the available facilities at A.I.M. Hospital, Sialkot. This statement of the P.W.28 is sufficient to nullify the prosecution allegations as he died at P.I.C., Lahore on 31-7-2003.
The learned trial court has duly appreciated all these facts available in the evidence of P.Ws. And has rightly exonerated the Medical Officer from their liabilities.
86. The afore-noted discussion of the prosecution evidence qua the liability of the police force is that the operation undertaken on the orders of DIG Malik Muhammad Iqbal (respondent) was proper and in the fitness of the things as he was constrained to take such drastic steps only when the captors had stated the killing of captive judges inside the barrack, thereafter, no option was left with the respondents/DIG except to commence the same. So far as results of the operations are concerned, it is noticed that it was not possible for the operational force to achieve 100% result of the rescual of the captive Judges as the force had no source of identity of the Judicial Officers vis- a-vis the captors as captors had already inter changed their uniforms with the dresses of the Judges. It is also available in the arguments of learned counsel for doctor Sajid Hussain that in such like situation 100% results could not be achieved and he had also quoted worldwide rescue operations such as "OPERATION JANBAZ" dated 10-11th October, 2009 and MOSCOW THEATRE HOSTAGE OPERATION dated 23rd October 2002, therefore, in such like operation, calculated result of the operation may not take place and if through a minimum loss, maximum achievements are made then success can be declared.
87. The theory of conspiracy allegedly propounded in this case by the learned counsel for the appellant is discussed hereafter. Five captors/deceased were facing the trial of murder charge and they had already been convicted and sentence to imprisonment for life each and were enduring the same. Their trial was also continuing inside jail. On the following day of incident i.e. 26- 5-2003, the date for announcement of judgment was fixed by the learned trial court (Ch. Nazir Ahmad, learned Addl. Sessions Judge, Sialkot P.W.34) and they had apprehension that they might be sentenced to death at all cost. In all circumstances, they desired to come out from the jail. The captive Judicial Officers who were present inside jail per chance on the day of incident had absolutely no connection, whatsoever, with the murder case of the captors, The police operational force had also not been in the knowledge of the proceedings of the case as it being jail trial, they were also absolutely alien to the alleged conspiracy as well as availability of the weapons and the ammunition with the captors.
' Khawaja Awais Mushtaq P.W.20 intimated the Jail Superintendent namely Sikander Hayyat respondent/accused that some conspiracy was likely to be perpetrated by the under trial captors for causing untoward incident for their release from jail, on this, matter was taken by the Superintendent Jail on departmental side. The jail employees were found allegedly involved, they were departmentally proceeded against and the captors were ordered to be lodged in football factory (separate building inside jail), in this way, the Superintendent Jail had striven to avoid befalling of any prospective untoward incident inside jail. However, on the fateful day, Jail Superintendent was on leave, proved documentarily and in his absence, Iftikhar Hussain (since P.O.
And reportedly dead) was the incharge of the jail. Record reveals that the alleged weapons were brought inside jail a day prior to the happening of instant incident. It is very easy to level allegations of abetment/ conspiracy but at the same time, it is very difficult to prove it. In the instant case, this situation occurred.
' It is, however, observed that extensive needs of time require reforms in jail laws to make them more effective for betterment.
88. The acquitted jail employees/ respondents/accused have rightly been found innocent because no permissible evidence was brought on record by the prosecution. Solitary statement of P.W.37 Safdar Nawaz, the Deputy Superintendent Jail who explained the duties roster to be performed by different officials w.e.f. 17-2-2003 to 25-2-203. His statement did not implicate to prove the charge of conspiracy/abetment against the respondents. Learned counsel for the appellant Mr. Bokhari, Advocate has relied upon statement of P.W.29, the learned Judicial Magistrate who recorded statements of certain persons named in his deposition under section 164 Cr.P.0 (not cross examined) but those witnesses did not appear before the learned trial court.
' So far as their plea is concerned, statements recorded under section 164 Cr.P.C. Can be relied upon in absence of the deponents for the only reasons that respondents were provided opportunities to cross examine them at the time of their statements but they did not cross- examine them. Law on this subject has been very much established that statements under section 164, Cr . P.0 , notwithstanding recorded on oath but the same has to be used as under section 161, Cr.P.C. For the purpose of contradictions and confrontation by the defence. Here, the said witnesses did not appear before the learned Court for any reason, then how these statements can be relied upon and more so those statements were to be taken in the context of collection of evidence as learned Magistrate was not acting as trial court. Upon the said statements, cross examination was not denied but it was deferred upto their statements if recorded before the learned trial court but when they did not put appearance before learned trial court, no question of placing reliance upon those statements occurs, it follows that prosecution has miserably failed to establish the charge of conspiracy/abetment against the jail employees.
89. Now, case of Raja Mushtaq Ahmad, Assistant Superintendent Jail and Muhammad Hafeez Head Warder (convicts) is taken. In the impugned judgment, learned trial court in its paragraph No.110 has made certain observations qua them, therefore, it has been considered proper to reproduce the same:-- "Charge of criminal conspiracy or abetment or criminal negligence against Sikander Hayyat, Ghulam Sarwar, Akhtar Iqbal, Riasat Ali Head Warders and Abdul Aziz Warder is not established.
Raja Mushtaq Ahmad and Muhammad Hafeez, Head Warders are also not involved for the offence of criminal conspiracy or abetment. However, prosecution has succeeded to establish the charge of their criminal negligence, facilitating the captors for launching murderous assault upon Sessions Judge and wrongfully confining the Judicial Officers in the ladies's barrack on the fateful day followed by Qatl-eAmd of Asif Mumtaz Cheema, Shahid Munir Ranjha, Sagheer Anwar at the hands of captors".
' After the perusal of para supra, it has to be observed that it was not clear as to what offences have been proved against them and under which offence it was convicting and sentencing the appellants/ convicts. Even otherwise, no permissible evidence has been found on the record to prove the charges against them, therefore, in absence of any permissible evidence, their convictions and sentences cannot be upheld.
90. It is the cardinal principle of criminal administration of justice that burden of proof remains with the prosecution even in case of any specific plea taken by the defence and in case of its failure, accused cannot be convicted and sentenced because it is mandatory for prosecution to prove its case beyond any shadow of reasonable doubt upto its hilt. Indubitably, specific plea was taken by the respondents in the case but the defence was not obliged to prove its plea as prosecution required. Accused cannot be suffered from failure of the plea taken. On this proposition, the Hon'ble Supreme Court of Pakistan has provided guidelines in case titled Azhar Iqbal v. The State (2013 SCMR 383) in the following words:- ' `It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased."
' And in case titled Khalid Javed and another v. The State (2003 SCMR 1419) at head note (a) observed as follows:-- "The proper and the legal way of dealing with a criminal ease is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witness, particularly the eye-witnesses and the probability of the story told by them and then examine the statement of the accused under section 342, Cr. P. C.
Statement under section 340(2), Cr. P. C. And the defence evidence. If the Court disbelieves/rejects/ excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr. P. C.
Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter-versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. Is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false .But will go, a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly.
91. Factual aspects of the case have been discussed in details in the preceding paragraphs, now on jural side, law on the subject of acquittal is discussed. It is a platitude since primitives that an accused is taken as blue-eyed child of law and is presumed to be innocent unless proved otherwise and if an accused is acquitted after "due process of law", then double presumption of innocence is attached to him as the same provides him valuable legal right, which cannot be withdrawn off hand provided the judgment of acquittal is considered utterly perverse, against facts as well as the law applicable to the circumstances of the case and if same is found unpalatable, unsavoury, invidious to notoriety to miscarriage of justice. This Court has been guided and illuminated by ex-cathedra judgments of Hon'ble Supreme Court of Pakistan and in this connection the land marks judgments have been recorded by it in case titled Ghulam Sikandar and others v.
Mamaraz Khan and others (PLD 1985 SC 11) wherein, the principles regarding interference at appeal stage in the judgment of acquittal have been highlighted in following words:- "In an appeal against acquittal the .Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the reappraisal of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: one initial, that, till-found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. The acquittal will not carry the second presumption and will also thus lose the first one if on, points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
' In either case the well-known principles of reappraisal of evidence will have to be kept in view when examining the strength of the view expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observance of some higher principle as noted above and for no other reason.
' The Court would not interfere with acquittal merely because on the reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too which a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous".
' This view followed in so many . Other cases and the case reported as the State and others v. Abdul Khaliq and others (PLD 2011 SC 554) provides following illuminating principles:-- "The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an, accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal.
Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusion should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. Supreme Court being' the final forum would be chary and hesitant to interfere in the findings of the Courts below.
Supreme Court observed that it was expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals".
' This matter of interference in judgment of acquittal has also been taken note by two Judges rendered by Hon'ble Supreme Court of Indian jurisdiction reported in case titled Muhammad Hussain alias Zulfikar Ali v. State (Govt. Of NCT, Delhi (2012 SCMR 1610):-- "Having found that the appellant has been held guilty and sentenced to death in a trial which was not reasonable, fair and just, the next question is as to whether it is a fit case in which direction be given for de novo trial of the appellant after giving him the assistance of a counsel. 1 have given my most anxious consideration to this aspect of the matter and have no courage to direct for his de novo trial at such a distance of time. For an occurrence of 1997, the appellant was arrested in 1998 and since then he is in judicial custody. The charge against him was framed on 18-2-1999 and it took more than five years for the prosecution to produce its witnesses. True it is that in the incident four persons have lost their lives and several innocent persons have sustained severe injuries. Further, the crime was allegedly committed by a Pakistani but these factors do not cloud my reason. After all, we are proud to be a democratic country and governed by rule of law. The appellant must be seeing the hangman's noose in his dreams and dying every moment while awake from the day he was awarded sentence of death, more than seven years ago. The right of speedy trial is a fundamental right and though a rigid time limit is not countenanced but in the facts of the present case I am of the opinion that after such a distance of time it shall be travesty of justice to direct for the appellant's de novo trial".
92. Finding of the learned trial court in acquitting the respondents/accused have not been found alien to the record, based upon extraneous material, suffering from misreading and non-reading of evidence, fanciful, arbitrary, capricious, unpalatable, unjustified, invidious to notoriety to miscarriage of justice rather reasons of acquitting have been found very much in consonance with ratio of the relied case laws, therefore, Criminal Appeal No.78 of 2007 filed against the acquittal of the respondents/accused is hereby dismissed and judgment to the extent of their acquittal is upheld whereas to the extent of Abdul Aziz respondent is abated on account of his death. Criminal appeal No.1933 of 2006 and Criminal Appeal No.1938 of 2006 filed by the convicts are allowed, their convictions and sentences are set aside resulted in their acquittal. Both the appellants Raja.
Muhammad Mushtaq and Muhammad Hafeez are on bail whose sureties are discharged from their liabilities.
' It is directed that record of the case shall remain preserved till the trial of P.Os.