Asjad Javaid Ghural, J.--Through Crl. Appeal No. 489 of 2015 appellant Abdul Hafeez @ Umair , Cr1. Appeal No. 496 of 2015 appellant Muhammad Afzal @ Sohail and Crl. Appeal No. 928 of 2015 , appellants Karamat Ali @ Goshi and Muhammad Zulfiqar alias Noumi, in terms of Section 25 of the Anti-T errorism Act, 1997 read with Section 410, Cr.P.C., have challenged the vires of judgment dated 25.02.2015 passed by the learned Judge Anti- Terrorism Court-I, Lahore in case FIR No. 590 dated 12.07.2012, in respect of offences under Sections 302, 324, 148 & 149, PPC and Sections 7 & 21-L of the Anti-T errorism Act, 1997 and Sections 3 & 4 of the Explosive Substance Act, 1908 registered at Police Station, Samanabad, Lahore whereby they were convicted and sentenced as under:-- Under Section 148 PPC Rigorous imprisonment for three years alongwith the fine of Rs. 50,000/-each and in default thereof, to further undergo simple imprisonment for six months .
Under Section 302(b)/149 PPC Death sentence each alongwith the compensation of Rs. 500,0001- each and in default thereof, to further undergo simple imprisonment for six months on ten counts to each ten deceased.
Under Section 7(1)(a) of ATA, 1997 Death sentence alongwith the fine of Rs. 500,0001- each and in default thereof, to further undergo simple imprisonment for six months on ten counts to each ten deceased.
Under Sections 324/149, PPC Rigorous imprisonment for ten years each on four counts in respect of injured namely , Muhammad Ameer , Haleem Khan, Rizwan Shah and Ayaz Khan.
Under Section 7(1)(c) of ATA, 1997 Rigorous imprisonment for 10 years along with the fine Rs. 200,0001-, in case of non-payment of fine, convict shall have further undergo six months S.I each on four counts in respect of injured namely Muhammad. Ameer , Haleem Khan, Rizwan Shah and Ayaz Khan.
Under Section 3 of Explosive Substances Act, 1908 Death sentence to each convict.
Under Section 4 of Explosive Substances Act, 1908 Imprisonment for life to each convict.
All the sentences were ordered to run concurrently . They were extended benefit of Section 382-D, Cr .P.C.
2. Capital Sentence Reference No. 16-T of 2015 sent up by the learned trial Court for confirmation or otherwise of death sentence of appellants Abdul Hafeez @ Umair , Karamat Ali @ Goshi, Muhammad Afzal @ Sohail and Muhammad Zulfiqar @ Noumi shall be decided through this common judgment.
3. The prosecution story unfolded in the crime-report (Ex.PU/2) registered on the complaint of Muhammad Yousaf, Drill Instructor National Academy Nepa, Lahore (PW-14) is that he was serving as Drill Instructor in the said academy where different courses were being provided to the trainees in which one special course for training the warders of jail from the province of Khyber Pakhtoon Khawa was going on. 32 participants were residing in officially rented premises at House No. 25, Rasool Park, Teepu Sultan Road Samanabad. On 12.07.2012 at about 05:15 a.m.. when all the trainee were going to get ready for attending physical class in National Academy , 8/10 unknown terrorists wearing shirts and trousers with active structures having the appearance of Pathan within the age of 18/20-years, came there on motorcycles and vehicles. The complainant alongwith his companions was in a position to identify them whenever come across. They came at the door and started firing at a trainee warder namely , Khuda-e-Noor , who was busy on phone. They raised the slogan of Allah-o-Akbar , entered into the house and started firing into the two rooms of ground-flour and three rooms of 1st floor simultaneously with their respective weapons and also threw bomb and hand-grenades in different rooms resulting into the death of nine trainees namely , Sardar Ali belonging to District Tameergarh,. Muhammad Asif from Sub-Jail Butgram, Khuda-e- Noor , Qamer Zaman from District Jail Kohat, Sharif-ud-Din District Jail Chitral, Shafqat from District Jail Peshawar , Afzal Khan from District Jail Laky Marwat, Muhammad Ali from sub-jail Butt Gram and Muhammad Fayyaz from Sub-Jail Lucky Marwat. Muhammad Adeel Central Jail Peshawar , Sharif Ullah Central Jail Chitral, Ayaz Khan District Jail Mardan, Asad Ullah District. Jail Mansehra, Kaleem Ullah District Jail Mardan, Nazar Ali subjail Charsaddah, Muhammad Rizwan Shah Central Jail Peshawar and Babar Maroof District Phalandri received injuries during the occurrence. The complainant alongwith other trainees saved their lives while jumping from top of the roof. 8/10 unknown terrorists martyred and injured the aforesaid trainees for unknown reason.
4. Khalid Farooq SI (PW-21) visited the place of occurrence on the same day and escorted the dead bodies of all the deceased to the mortuary . Muhamma d Yousaf, SI (PW-32) lifted finger prints from different places on the same day and after its chemical process, handed over his report to the Investigating Officer. Naseer Khan, Inspector (PW-31) took all necessary steps of initial investigation including collection of blood stained earth and crime empties of different bores from the place of occurrence. Nazir Ahmad, Inspector (PW-33) joined the appellants with the investigation of this case being already in police custody in case FIR No. 397/2 013, at Police Station Lori Adda, Lahore. He took into possession extracts of the said case regarding recovery of ammunitions from the appellant.
During investigation the appellants pointed out the place of occurrence through respective memos. of pointed place. On 21.08.2013 appellants Zulfiqar arid Abdul Hafeez led to the recovery of respective motorcycles (P-15 & P-16). He got samples of finger prints of the appellants through the Magistrate on 28.08.2013. He got declared proclaimed of fenders to co-accused Ubair-ur-Rehman, Hafiz Luqman and Afzaal Hussain.
5. At the commencement of the trial, the learned trial Court had framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.
6. Dr. Masnoora Miraza (PW-1), Dr. Ghulam Nabi (PW-3), Dr. Ahmad Raza Khan (PW-4), Dr. Nouman Butt (PW-5), Dr. Fahad Javed (PW-9), Dr. Shahid Hussain (PW-10), Dr. Ejaz-ul-Hassan (PW-11) and Dr. Anwaar Mumtaz (PW- 28) held autopsy on the dead bodies of the deceased and also medico-legal examination of the injured witnesses.
7. The prosecution had produced 36-wit nesses besides the reports of the Punjab Forensic Science Laboratory (Ex.PQQQQ to Exh.PTTTT/10). The appellants, in their statements recorded under Section 342, Cr.P.C. had denied and controverted all the allegations of fact leveled against them, they did not opt to make statements under Section 340(2), Cr.P.C., however produced two witnesses and certain other documents (Exh.DA to Exh.DG) in their defence.
8. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellants, as stated above, vide impugned judgment dated 25.02.2015. Hence, this criminal appeal as well as the connected Capital Sentence Reference.
9. Learned counsels for the appellants submit that the appellants are quite innocent and they have nothing to do with the alleged occurrence; that the appellants were arrested in some other case but the police entangled them in this case falsely just to show efficiency in order to cool down anger of the society; that the appellants were neither nominated in the crime report nor their features were given enabling the acclaimed eye-witnesses for their identification at any subsequent stage; that the process of test identification parade of the appellants was a futile exercise being joint one consisting of 32-dummies alongwith the appellants in one go; that four injured witnesses appeared before the trial Court but none of them raised accusing finger towards any of the appellants; that during the process of investigation no incriminating material was recovered from the appellants; that the finger prints obtained from different articles collected from the crime scene on the day of occurrence did not match with that of the appellants' finger prints; that there remains no iota of evidence connecting the appellants with the incident in issue. At the end, a prayer has been made for acquittal of the appellants.
10. Conversely , learned Deputy Prosecutor General appearing for the State has vehemently contended that it was a heinous offence where ten innocent young members of the law enforcing agency lost their lives and seven others sustained serious fire-arm injuries without any fault on their part; that the eye-witnesses, being jail police officials, had no ill-will or animosity against the appellants to falsely implicate in this case; that Muhammad Yousaf and Muhammad Saqlain PWs have shown their presence at the venue of occurrence being employees over there and they had seen the culprits with their own eyes; that both the witnesses have well identified the appellants in the test identification parade under the supervision of learned Judicial Magistrate; that the prosecution has successfully proved the charge against the appellants beyond shadow of a reasonable doubt. He has prayed for dismissal of the appeals in hand.
11. We have heard learned counsels for the appellants, learned Deputy Prosecutor General appearing for the State and perused the record with their able assistance.
12. This is a case of circumstantial evidence, which hinges upon the oculer account, identification parade, positive reports of the Punjab Forensic Science Agency , report of the finger print expert, the investigation and the medical evidence. The mainstay of the prosecution was on the testimony of Muhairimad Yousaf complainant/ instructor (PW-14) and Muhammad Saqlain, temporary warder (PW-15). The complainant while appearing in the dock in the Courtroom deposed that on 12.07.2012 he was present in the hostel situated in Samanabad. At about 5:30 a.m. he woke-up the trainees from ground floor. In the meanwhile, he heard the noise of firing, at about 5:45 a.m. he saw that the police officials present outside the gate were being fired by the accused, four accused entered into the building, two of them made firing in one room and the other two in second room. Due to their act the sense of fear and panic was created and some of the officials saved their lives by jumping in the adjacent houses. Ten deadbodies were shifted to the dead house and the injured officials were shifted to the Services Hospital, Lahore.
He joined the proceedings of test identification parade in Kot Lakhpat Jail, Lahore and identified the appellants.
Muhammad Saqleen (PW-15) furnished almost identical story regarding this occurrence, and also his participation in the proceedings of test identification parade. Admittedly , this case was registered against unknown accused. The appellants were arrested in this case under Section 54, Cr.P.C. being already in police custody at Police Station Lari Adda Lahore in case FIR No. 397/2013. During investigation in the said case, they made a disclosure regarding this, occurrence whereupon they were sent into the judicial lock-up for the purpose of identification parade. Both the aforesaid eye-witnesses and one Fayyaz identified the appellants in the identification parade held on 06.08.2013 within the premises of Kot Lakhpat Jail, Lahore but the procedure adopted by the Magistrate in the test identification parade renders it legall y unacceptable. The claimed eye-witnesses are legally required firstly to establish their presence at the venue of occurrence and secondly identification of the culprits at the spot. The proceedings of test identification parade (Ex.PUUU) of the appellants was conducted under the supervision of Mr. Rashid Nawaz, Judicial Magistrate (PW-29), which shows that it B was a joint identification parade of the appellant alongwith 32 dummies in one go. Learned Judicial Magistrate was under legal obligation to carry out the proceedings of the test identification parade in accordance with Article 22 of The Qanoon-e-Shahadat Order , 1984 and Part-C Chapter-1 1 of Lahore High Court Rules and Orders hut he had floated such procedure in the said identification parade. It was the only source for the acclaimed eye-witness to implicate the appellants in the crime in issue. There is no excuse on the part of the prosecution to avoid such legal/obligations, which makes the case of prosecution highly doubtful. The oblivious facts are coherent to the facts of case titled "Gulfam and another versus The State (2017 SCMR 1 189)" wherein it has been held, as under: "The prosecution had maintained that the present appellants had correctly been identified by the above mentioned eye-witnesses during a test identification parade conducted and supervised by a Magistrate but we note that the parade so conducted and held was a joint parade in winch both the present appe llants had been made to stand along with many other dummies. Holding of joint identification parade of multiple accused persons in one go has been disapproved by this Court in many a judgment......."
13. The prime function of the prosecution was to join injured witnesses with the proceedings of the test identification parade. During this act of terrorism, ten innocent jail employees of the province of Khyber Pakhtoon Khawa had lost their lives in the incident and nine others had sustained fire-arm injuries. The presence of injured persons was admitted one and to stay them away from joining the proceedings of test identification parade is a big question mark and speaks volume with regard to the mode and manner of implication of the appellants in this case.
Meaning thereby , the injured witnesses were not convinced to implicate the appellants falsely in this case.
14. Apart from the complainant and Muhammad Saqlain (PW 15), four injured witnesses namely , Muhammad Amir (PW-24). Haleem Khan (PW-25), Rizwan Shah (PW-26) and Ayaz Khan (PW-27) appeared before the trial Court.
They deposed that on the fateful day; they alongwith their companions were present in the hostel situated at Rasool Park, Samanabad, Lahore for the purpose of training when at 4:45 a.m., at once they were attacked. The accused were making reckless firing, some of them threw grenades resulting into the death of their nine companions and injuries to ten others including them. The accused had muffled their faces and they were also present at the roof top. They did not utter even a single word that the accused present in Court were amongst the persons, who attacked upon them. Even during cross-examination they did not raise accusing finger towards any of the appellants in any manner . The testimony of the injured witnesses was only to the extent of happening of the occurrence without pointing out the role, name or even features of the appellants. The injured witnesses were in a better position to bold the appellants responsible for this occurrence but they did not implicate the appellants in this case in any manner whatsoever .
15. Muhammad Yousaf, SI (PW-32) alongwith his team lifted finger prints from different places, doors and suspicious helmet on the same day. He chemically processed the same and handed over its report to Naseer Ahmad Khan, Inspector (PW-31), who took it into possession through recovery memo. (Exh.PCCC). It was the best evidence to identify any of the appellants at some subsequent stage. The appellants, after their arrest, were produced before the learned Magistrate on 28.08.2013 for getting sample of their finger prints, which were forwarded to the office of Punjab Forensic Science Agency , Lahore for comparison with the finger prints already secured on the day of occurrence from different articles. The report of the said office has been received with negative result -negating their finger prints booked-up on the very day of occurrence from the crime scene.
However , it was positive to the extent of appellants Muhammad Zulfiqar alias Noumi and Karamat Ali alias Goshi with the evidence collected on 21.08.2013, which has no bearing upon the fate of the case because these appellants were arrested on 29.07.2013 and the evidence of 21.08.2013 was gathered after the arrest of the appellants. In view of the circumstances, report of the Punjab Forensic Science Agency ' regarding finger print of the appellants has no legal consequences.
16. The appellants' arrest was shown under Section 54, Cr.P.C. being already arrested in case FIR No. 397 dated 29.07.2013 registered at Police Station Lari Adda, Lahore. During investigation, appellants Zulfiqar alias Noumi and Karamat All alias Goshi made disclosure that they had used KK rifles recovered in the aforementioned case during this occurrence. The Kalashnikovs were sent into the office of Punjab Forensic Science Agency , Lahore for its comparison with 69-crime empties already secured from the place of occurrence. The report from the said office (Ex.PQQQQ) has been received with positive result showing that the Kalashnikovs recovered from appellant Zulfiqar alias Noumi was found wedded with seven crime empties whereas, the Kalashnikov recovered at the instance of appellant Karamat All alias Goshi was found wedded with eight crime empties. Though the report is positive one yet the fact remains that the crime empties secured from the crime scene on the same day i.e. 12.07.2012, were deposited into the office of Punjab Forensic Science Agency on 26.08.2013 by Muhammad Nawaz 7157/C (PW-16) after about one year of the occurrence and the fire-arm weapons recovered from the appellants were deposited into the said office on the very next day i.e. 27.08.2013 though the appellants were arrested in the aforementioned case on 29.07.2013 along-with the fire-arm weapo ns and the same remained lying in the Malkhana for month. This shows that the prosecution withheld the crime empties for one year and ultimately deposited the same in the aforesaid office after about one month of the appellant's arrest. There was no justification for the prosecution to withhold crime empties for about year and -then its transmission into the office of Punjab Forensic Science Agency belatedly and that too after arrest of the appellants. In this backdrop, the possibility cannot be ruled out of consideration that the same was maneuvered by the police in order to get positive report of the Ballistic Expert and, thus, the recovery of weapons of offence from the said appellant remained inconsequential. A reference in this regard may be placed to case titled "Nazeer Ahmed versus The State " (2016 SCMR 1628 ) wherein it has been held as under: "the crime-empty secured from the place of occurrence was sent to the Forensic Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable --- -"
17. From evaluation of the evidence pro and contra, we have entertained no mann er of doubt in our mind that the prosecution has not been able to prove the charge against the appellants beyond shadow of a reasonable doubt.
The prosecution had ample opportunity to hold test identification parade of the accused in jail premises according to settled procedure and principle. of law while producing the injured witnesses for their identification, but unfortunately none of the injured witness was produced during test identification parade, who when made statements before the trial Court, did not make the appellants responsible for this act of terrorism. The only piece of evidence available on record was the testimony of complainant Muhammad Yousaf (PW-14) and. Muhammad Saqlain (PW-15), but their deposition that they hide themselves at the rooftop of the hostel, when accused were also at the roof while making fire shots upon trainees, cannot be relied upon: The evidentiary value of joint test identification parade of the appellants in one go with 32-dummies is next to nothing. The finger prints secured from different articles lying at the crime scene did not match with any of the appellants. Though it was a heinous offence where ten innocent people had lost their lives and nine others sustained serious injuries in a terrorist attack, yet the prosecution was bound to produce coge nt, reliable and confidence inspiring evidence in order to connect the appellants with the commission of crime, unfortunately , it remained fail. No iota of evidence is available with the prosecution implicating the appellants with this act of terrorism. With heavy-heart, we do not concur with the conclusion arrived at by the trial Court qua the conviction and sentence of the appellants.
18. In view of what has been discussed above, the appeals in hand are allowed and conviction and sentences of appellants Karamat Ali alias Goshi, Abdul Hafeez alias Umair , Muhammad Afzal alias Sohail and Muhammad Zulfiqar alias Noumi are set aside and they are acquitted of the charge by extending them the benefit of doubt.
They are acquitted of the charge and directed to be released forthwith if not required to be detained in connection with any other case.
19. Capital Sentence Reference No. 16-T of 2015 is answered in negative and death sentence of appellants Karamat Ali alias Goshi, Abdul Hafeez alias Umair , Muhammad Afzal alias Sohail and Muhammad Zulfiqar alias Noumi is NOT confirmed.