1. QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Saqlain, 53, a police officer credited to have solved some high profile cases of terrorism, left home in Afshan Colony Dhok Chodrian Rawalpindi on 10-7-2004 at 9:30 a.m; he was being driven by Muhammad Altaf/HC, 30, in a car bearing registration No, IDK/5509 when came under a sudden assault by two pillion riders; attempt by the driver to speed away the vehicle was foiled by the third assailant, guised as huckster as he suddenly pulled onions laden cart to obstruct the passage and, thus, maneuvered space for two other pillion riders emerged from the nearby lane to join indiscriminate firing; he himself also opened the fire on the vehicle struck with an electric post. Terror stricken onlookers included Rabnawaz (PW-21) accompanied by Ibrar Ahmad (PW-24) and Muhammad Jehangir, both related in second degree, they were on way to visit Muhammad Saqlain's wife, convalescing from a recent renal surgery. Incident was reported through statement (EX.PBB) recorded by Mian Afzal Shah, Inspector, 10:10 a.m. at the spot wherein descriptive features of the assailants were mentioned along with roles played by them. Investigation by Muhammad Saqlain deceased in Shah Najaf Case as well as terrorist incidents in Murree and Taxila prompted the assault, read the First Information Report. Arshad Satti was first to be named as amongst the assailants through complainant's supplementary statement of even date wherein he also blamed the cart puller for firing upon the deceased.
2. Dr. Manzoor Ahmad Sahi (PW-3) conducted autopsy of Muhammad Saqlian at 10:45 a.m.; it was a bullet ridden dead body with 20 wounds entry as well as exit involving vital organs with multiple fractures, generating extensive haemorrhagic shock with immediate death; interregnum between death and postmortem was estimated as within four hours. Muhammad Altaf suffered fifteen injuries; his skull was totally crushed with massive damage on the chest, elbow joint, right hypochondriam with multiple fractures; failure of vital organs generated haemorrhagic shock, resulting into immediate death with time between death and postmortem estimated as within 4 to 12 hours.
3. Mian Afzal Shah, Inspector/SHO along with Muhammad Riaz SI (PW-9) carried out spot inspection; besides other investigative steps, he secured blood from inside the vehicle, mobile (P-17), wireless set (P-16), .38 caliber revolver (P-15), police cap (P-19), 29 casings of Kalashnikov (P-51/1-29) and hand cart (P-3) with a scale. As the investigation progressed, Hammad Abbasi and Tahir Mehmood were arrested on 21-3-2005, with Kalashnikov (P-64) and pistol (P-70); Eid Muhammad was next to be arrested along with Kalashnikov (P-63) on 23-3-2005 followed by Muhammad Imran and Muhammad Awais on 19-4-2005; last arrest is that of Muhammad Younas on 22-10- 2005. The witnesses identified the assailants during test identification parades; Hammad Abbasi and Muhammad Tahir were identified under magisterial supervision on 25-3-2005 by Rabnwar (PW-21) and Ibrar Mehmood (PW-24); Eid Muhammad was identified by the witnesses on 11-5-2005 whereas Muhammad Younas accused on 7-11-2005. Casings secured from the spot dispatched to the Forensic Science Laboratory on 29-7-2004 through Khaliq Dad ASI (PW-7); five out of twenty- nine casings tallied with Kalashnikov (P-63) recovered from Eid Muhammad appellant vide forensic report Ex.P000, negative qua the remainder.
4. Arshad Satti stayed away from law during the trial, however, was arrested and tried subsequently.
5. Six accused named above, were indicted by learned Judge Special Court-I Anti Terrorism Court Rawalpindi Islamabad Capital Territory on 17-12-2005; they claimed trial, pursuant whereto, prosecution produced as many as 25 witnesses to bring home the charge. Prosecution case is primarily structured upon ocular account furnished by Rabnawaz (PW-21) and Ibrar Ahmad (PW- 24). The witnesses confirmed the identity of the assailants through test identification parades.
6. Recoveries from the spot as well as the accused constitute yet another plank to support the charge. Hailing from different backgrounds, accused rallied behind a unanimous denial; blamed their prosecution as abuse of process of law on account of sectarian divide. The learned trial Judge, vide impugned judgment dated 18-12-2009, acquitted Muhammad Imran and Muhammad Awais co-accused, however, proceeded to convict and sentence the remainder as under:- "Muhammad Younas, Eid Muhammad Under section 7(a), A.T.A. read with sections 302/149, P.P.C.
7. Death on two counts with fine of Rs, 200,000/- or one year simple imprisonment in the event of default and compensation in the sum of Rs,100,000/- or six months simple imprisonment in default of payment thereof.
8. Under sections 7(d), 21(i), A.T.A.
9. Ten years imprisonment each with fine of Rs,50, 000/- each or three months simple imprisonment in the event of default.
10. Under section 21(L), A.T.A.
11. Five years imprisonment Under sections 148/149, P.P.C.
12. Three years imprisonment Muhammad Hamad and Tahir Mahmood Under sections 7(a), 21(i), A. T.A. read with sections 302/149, P. P.C.
13. Imprisonment for life with fine of Rs,100,000/- or six months' simple imprisonment in the event of default and compensation in the sum of Rs,50,000/- or three months' SI.
14. Under sections 7(d), 21(i), A.T.A.
15. Ten years' imprisonment each with fine of Rs,50,000/- each or three months' simple imprisonment in the event of default.
16. Under sections 148/149, P.P.C.
17. Three years' imprisonment"
18. Sentences were ordered to run concurrently with benefit of section 382-B of the Code of Criminal Procedure. Vires of the impugned judgment have been challenged by the convicts through Crl.
19. Appeals Nos,12-T of 2010, 8-T of 2010, 545-T of 2009; State seeks reversal of acquittal through Crl.
20. Appeal No,116-T/2010 whereas Capital Sentence Reference No,3-T of 2010 is directed towards, confirmation of death penalty; bearing a common thread, these are being decided through this single judgment.
2. Learned counsel for the appellants contend the deceased were done to death in a surprise attack in an unwitnessed occurrence, subsequent whereto, the accused were arrayed on the basis of misconceived and misplaced suspicion; that presence of the witnesses being extremely improbable, their testimonies merit outright rejection; that the witnesses supported the prosecution case as they had been dishonestly led to believe appellants' participation in the crime; that past record of Muhammad Saqlain, the slain Inspector, far from being enviable in the face of atrocities, he was done to death under mysterious circumstances having no nexus with the appellants; that nomination of Arshad Satti through supplementary statement could not be relied upon by the learned trial Court; that test identification parades have not been carried out in accordance with the law applicable thereto and, thus, it would be unsafe to maintain the convictions; that even otherwise with a momentary glance in an extreme crisis situation, the witnesses could not humanly identify the assailants without potential risk of error. The bottom line is that prosecution has not been able to prove the charge beyond reasonable doubt. Contrarily, the learned Law Officer assisted by learned counsel for the complainant, has defended the impugned judgment on the ground that prosecution with the assistance of the witnesses successfully drove home the charge by excluding every hypothesis of appellants' innocence inasmuch as they had satisfactorily explained their presence at the crime scene with no axe to grind against the convicts. It is argued that First Information Report is a truthful and straightforward account of events leading towards most brutal and wanton assault on the functionaries of the State on account of performance of their duty. The learned Law Officer has referred to the promptitude both in registration of case as well as autopsies to demonstrate bona fide of the process. While arguing Crl. Appeal No,116-T of 2010, the learned Law Officer contends that in the totality of circumstances, Muhammad Imran and Muhammad Awais respondents cannot escape consequences of providing logistical support and protection to their co-accused who actively participated and, thus, there was no occasion for the learned Special Judge to acquit them from the charge.
3. Heard. Record perused.
4. Fate of the prosecution case is hinged upon ocular account furnished by Rabnawaz (PW-21) and Ibrar Ahmad (PW-24); they are related with Muhammad Saqlain deceased and were on way to visit the family; it is in evidence that the deceased's wife underwent renal surgery few days before the occurrence; they were on way in a cab left by them as one of the tyres deflated near the destination. The witnesses remained adamant in their positions throughout an awfully grueling and torturously lengthy cross-examination. Rabnwaz (PW-21) endured a cross-examination spreading over six hearings comprising 43 pages; unwavering and consistent throughout his ordeal, he returned unscathed from the witness box. The exercise was a most uncharitable treatment meted out to a person who came forward in aid of justice. Even a man with most brilliant faculties would collapse. No doubt, accused's right to cross- examine a witness pointing his finger upon him in an adversarial trial is a most valuable right, nonetheless, the right is to be exercised within the framework provided under Articles 141 and 151 of the Qanun-e-Shahadat Order, 1984. Ibrar Mehmood (PW-24) was also cross- examined relentlessly and again with acquiescent condonation. The defence went far beyond the available statutory space, unfortunately with impunity. The purpose of cross-examination is not to hound or harass a witness. All that the defence desired to bring on record was to demonstrate that the witnesses were not present at the crime scene, as is its case from the day one and this certainly did not warrant such an inordinate probe. The practice has been severely deprecated in the case of Muhammad Shaft, Muhammad Sharif alias Jatta and Kareem Bukhsh v. The State (PLD 1967 SC 167), relevant portion whereof is advantageously reproduced:- "There is a regrettable practice among a class of lawyers to use prolonged cross-examination for the purpose of leading a witness into error after his alertness has been reduced through fatigue and his resistance to suggestions made in the farm of leading questions has thereby been reduced. Such a practice is plainly designed not for the disclosure of truth, but for the manipulation of error, and we take this opportunity of expressing our entire disapproval of the use of such methods."
21. The above view has been reaffirmed in the cases of Sher Muhammad and 2 others v. The State (PLD 1995 SC 578) and Muddassar alias Jimmi v. The State (1996 SCM R 3) wherein it is held that Court is duty bound to check such practice and also to give protection to the witness against irrelevant and scandalous questions during cross-examination. Vulnerably placed, the witnesses survived entirely on their own and on a closer scrutiny, they are found inspiringly confirmatory in their depositions being least shaken on the fundamental issues of identification and roles played, captured by them in broad daylight, not far from their view. Identification tests have been carried out while observing anonymity as well as codal formalities and safeguards and, thus, safely provide confirmation of ocular account. There is no space to entertain hypothesis of substitution, otherwise a most rare phenomena antithetical to retributive human instinct. With no rancor or animus against the accused, situated in vastly divergent backgrounds, the witnesses had no apparent reason for false implication. Nomination of Arshad Satti on the basis of information received by Rabnawaz (PW-21) same day with reference to the role played by the cart puller being explanatory do not reflect upon the prosecution case, otherwise firmly structured on the totality of circumstances confirmed by the witnesses. Non-specific objections on his testimony are stereotype in nature to say the least. He has furnished best evidence under the circumstances.
22. Ibrar Ahmad (PW-24) is in a comfortable unison and, thus, squarely corroborates account furnished by Rabnawaz (PW-21). They have rightly been relied upon. Mr. Ahmad Masood Janjua (PW-17) has faithfully supervised test identification parades wherein the witnesses rightly picked the assailants, thus, prosecution evidence is found well synchronized to exclude every H hypothesis of appellants' innocence. Criminal Appeals Nos,12-T/2010, 8-T/2010, 545-T/2009 fail. Insofar as quantum of sentence to be exacted from Muhammad Younas appellant is concerned, it warrants a most serious reconsideration. Assault upon State functionaries particularly tasked with administration of justice or maintenance of law and order is assault on the State itself and, thus, must be visited in a manner squarely deterrent. Nonetheless, in the present case, Hammad Abbasi and Tahir Mehmood have been awarded alternate penalty of imprisonment for life; they brought the assailants face to face with the deceased and whisked them away thereafter; the State has not prayed for enhancement of their sentences. Eid Muhammad and Muhammad Younas have been sentenced to death on two counts, however, forensic report to the extent of Muhammad Younas being in the negative, though with no vitiating impact on his culpability, nonetheless, can be viewed as a mitigating I circumstance to spare his life, therefore, penalty of death awarded to Muhammad Younas appellant is altered into imprisonment for life on each count; remainder of the sentences are kept intact. Sentences shall run concurrently with benefit of section 382-B of the Code of Criminal Procedure, 1898. Prosecution case qua Eid Muhammad is seamless and, thus, he can be saddled with the ultimate wage. Death sentence awarded to Eid Muhammad appellant is CONFIRMED. Capital Sentence Reference No,3-T of 2010 is answered in the AFFIRMATIVE. Tahir.
23. Mehmood and Hammad Abbasi appellants are on bail; they shall be taken into custody to serve out their remaining sentences.
24. Capital Sentence Reference qua Muhammad Younas appellant is answered in the NEGATIVE and death sentence awarded to him is NOT CONFIRMED.
25. As a necessary corollary of the findings above, Crl. Appeal No,116-T of 2010 stands dismissed.