ASJAD JAVAID GHURAL, J.---Through Criminal Appeal No. 1909 of 2009 appellants Rafique Shah, Ehsan Ijaz and Muhammad Waseem alias Mola and Criminal Appeal No. 1885 of 2009 appellant Ahmed Abbas have challenged the vires of judgment dated 11.11.2009 passed by the learned Judge, Anti-Terrorism Court-II, Gujranwala in case FIR No.260 dated 15.05.2004, in respect of offences under Sections 302, 324, 148 and 149, P.P.C. and Sections 6 and 7 of the Anti-Terrorism Act, 1997 registered at Police Station, Saddar Gujrat whereby they were convicted and sentenced as under: Under Section 148/149, P.P.C.
Rigorous Imprisonment for two years each.
Under Section 302(b)/149, P.P.C.
Death on 14-counts for the murder of Mumtaz Ahmad alias Billa, Tahir alias Nanha, Ishtiaq Ahmad alias Shaki, Imran, Nadeem Mukhtar, Shahid Nazir, Muhammad Ramzan alias Farooq, Muhammad Anaar, Wasif Aleem, Tanveer Hussain, Shahid Butt, Ashfaq Ahmed, Syed Ajmal Shah and Syed Ahmed Hussain and to pay the compensation of Rs.6,00,000/- each to the legal heirs of each deceased under Section 544-A Cr.P.C. and in default thereof to Further undergo simple imprisonment for six months each.
Under Section 324/149, P.P.C.
Rigorous Imprisonment for ten years each for launching murderous assault upon Tanvir-ul-Hassan, Nazir Hussain and Razzaq alias Shaia and to pay the fine of Rs.50,000/- each and in default thereof to further undergo simple imprisonment for one years each.
Under Section 337-L(2)/149, P.P.C.
Rigorous Imprisonment for two years each and to pay Rs.20,000/- with equal shares to Tanvir-ul-Hassan, Nazir Hussain and Razzaq alias Shaia as Daman each.
Under Section 7(a) of the Anti-Terrorism Act, 1997 read with Section 149, P.P.C.
Death on 14-counts for the act of terrorism and causing Qatl-i-Amd of Mumtaz Ahmad alias Billa, Tahir alias Nanha, Ishtiaq Ahmad alias Shaki, Imran, Nadeem Mukhtar, Shahid Nazir, Muhammad Ramzan alias Farooq, Muhammad Anaar, Wasif Aleem, Tanveer Hussain, Shahid Butt, Ashfaq Ahmed, Syed Ajmal Shah and Syed Ahmed Hussain and to pay the fine of Rs.200,000/-, to the legal heirs of the deceased and in default thereof to further undergo simple imprisonment for three years each.
Under Section 7(c) of Anti-Terrorism Act, 1997 read with Section 149, P.P.C.
Rigorous Imprisonment for ten years for committing act of terrorism and attempting to commit Qatl-i-Amd of Tanvir-ulHassan along with fine of Rs.50,000/- and in default thereof to further undergo simple imprisonment for three years each.
Under Section 7(c) of Anti-Terrorism Act, 1997 read with Section 149, P.P.C.
Rigorous Imprisonment for ten years each for committing act of terrorism and attempting to commit Qad-i-Amd of Tanvir-ul-Hassan, Nazir Hussain and Razzaq alias Shaia and also to pay the fine of Rs.50,000/- each and in default thereof to further undergo simple imprisonment for three years each.
2. Capital Sentence Reference No.17-T of 2010 sent up by the learned trial Court for confirmation or otherwise of death sentence of convicts Ahmad Abbas, Muhammad Waseem alias Mola, Rafique Shah and Ehsan Ijaz, shall also be decided through this common judgment.
3. It is pertinent to mention here that appellant Ehsan Ijaz died on 22.03.2016 and his appeal (Crl. Appeal No.1909/2009) stood abated vide order dated 20.01.2020.
4. The prosecution story unfolded in the crime report (Ex.PW-17/1)) registered on the complaint of Ghulam Rasool (given up) is that two days earlier to the registration of case, his son namely, Ishtiaq alias Shaki had a quarrel with Muhammad Rafique Shah (appellant) on the issue of entering his cattle-heads in Barseem crop of the complainant and during quarrel, Ishtiaq alias Shaki abused and slapped Muhammad Rafique Shah, who felt serious insult. On 15.05.2004, Fazeelat Shah called Ishtiaq alias Shaki at his Dera in order to patch-up the matter whereupon the complainant, his son Ishtiaq Ahmed, Mumtaz Ahmed alias Billa, Tahir alias Nanha, Ashfaq Ahmed, Imran, Shahid Nazir, Muhammad Ramzan, Muhammad Anaar, Wasif, Nadeem Mukhtar, Tanveer Hussain all deceased), Shahid Latif, Nazim Hussain, Razzaq Ahmed alias Shaia (PW-16), Nazir Hussain (PW-15), Tanvir-ulHassan (PW-14), Shahzad, Muhammad Zareef and Shabbir went there on, their vehicles and parked the same at Fatehpur Road Madina-Saidan. Rafique Shah, Ajmal Abbas, Islam Ali, Fazeelat Shah, Sher Haider, Babu Shah, Ghazanfar Abbas and Rizwan ljaz were already present at the aforesaid Dera where the matter was patched-up: After observing Dawai-e-Khayr Rafique Shah armed with 222 bore (appellant), Islam Ali and Ajmal Abbas (appellant) armed with 08-MM, Fazeelat Shah armed with Kalashnikov, Sher Haider armed with 222-bore, Babu Shah armed with 223- bore, Rizwan ljaz alias Razi Shah and Ghazanfar Abbas both armed with Kalashnikovs along with 5/6 unknown armed persons accompanied them to the road in order to see-off them. Mumtaz Ahmed alias Billa sat on the driving seat, Tahir alias Nanha boarded on the front seat whereas Ishtiaq Ahmed alias Shaki, Imran alias Sabir and Nadeem Mukhtar sat on the rear seat of car bearing registration No.G-9643-Karachi whereas on the other car Honda applied for, Shahid Nazir took the driving seat, Muhammad Ramzan alias Farooq on front seat, Muhammad Anaar, Wasif Aleem and Tanvir Hussain sat on the rear seat. In the double-cabin Dala Toyota Hilux No.1, Shahid Butt took the driver seat, Ashfaq Ahmed sat on the front seat, whereas Nazim Hussain, Razzaq Ahmed alias Shaia, Nazir Hussain, Tanvir-ulHassan Chohan, Shahzad, Muhammad Zareef and Shabbir were sitting in the Dala. In the meanwhile, at about 07-1/4 p.m. Ajmal Abbas, Rizwan, Ijaz alias Rizi Shah along with 5/6 unknown accused armed with firearm weapons went on the roof top of the adjacent houses, in prosecution of their common object of Ghazanfar Abbas, Sher Haider, Fazeelat Shah, Islam Ali and Rafique Shah. Ghazanfar Abbas armed with Kalashnikov, Babu Shah armed with 223-bore, Sher Haider armed with 222- bore started firing at car No.G- 9643, Fazeelat Shah armed with Kalashnikov, Islam Ali armed with 8-MM and Rafique Shah armed with 222- bore started firing at car Honda applied for whereas, Rizwan Ijaz alias Rizi Shah armed with Kalashnikov, Ajmal Abbas armed with 08-MM along with 5/6 unknown accused armed with rifles started firing at the double cabin Dala and raised lalkara that no one should escape. All the persons in car No.G-9643 and Honda car died at the spot. Shahid Butt and Ashfaq Ahmed, who were sitting in double cabin Dala also died at the spot whereas Nazim Hussain, Razzaq Ahmed alias Shaia, Nazir Hussain, Tanvir-ulHassan Chohan, Shahzad, Muhammad Zareef and Shabbir received fire arm injuries at the spot. Due to their firing, two passerby namely, Syed Ajmal Shah and Syed Ahmed Hassan also received injuries and died at the spot. Ahmed, Waseem Ahmed, Ghulam Muhammad, Syed Abu Bakar, Aftab Hussain, Ashfaq Ahmed, Waqar Shah alias Bally Shah and Tabassam Shah, Izhar Haider also received injuries during the occurrence. Complainant saved his life by hiding behind the shop.
5. Muhammad Abbas, Inspector (PW-17) visited the place of occurrence on the same day and took all necessary steps of investigation at the spot and prepared injury statements and inquests reports of the deceased and also took into possession vehicle registration No.9643/Karachi from the spot. On the next day i.e. 16.05.2004, he took into possession blood-stained earth from places where the dead bodies of the deceased were lying and also where the injured received injuries. He escorted dead bodies of all the deceased to mortuary, recorded statements of the injured witnesses and also recorded supplementary statement of the complainant (Ex.PW-17/61). He took into possession ammunition and arms licenses (P-43 to P-51/1-3) from three vehicles. He prepared rough site plan (Ex.PW-17/63) of the place of occurrence and recorded statements of the witnesses under Section 161, Cr.P.C. Nasir Mehmood, Inspector (PW-18) arrested co-accused Ghazanfar Abbas on 16.06.2004 and after completion of investigation, he got prepared incomplete report under Section 173, Cr.P.C.
Imran Saleem, SI/Station House Officer (PW-19) got conducted post mortem examination of accused Billay Shah on 02.06.2004 after his death in the hospital. He arrested appellants Rafique Shah, Ahsan ljaz, Muhammad Waseem, Ahmad and also Sher Haider on 04.06.2004. During investigation, appellant Ahmad led to the recovery of a 222-rifle (P-53) along with bullets and appellant Muhammad Waseem alias Moula led to the recovery of Kalashnikov (P-55) along with live bullets. One rifle was also shown to have been recovered from appellant Ahsan Ejaz (since dead). He recorded statements of the witnesses under Section 161, Cr.P.C.
6. Dr. Malik Abid Mehmood (PW-2), Dr. Tahir Rasheed (PW-3), Dr. Bilal Ahmad Dar (PW-4) and Dr. Ghulam Abbas Zafar (PW-5) held autopsy on the dead bodies of deceased Waqar Haider Shah alias Billay Shah, Wasif Ali, Muhammad Aamar, Tahir Nanha, Imran, Ashfaque Ahmad, Syed Ajmal Shah, Muhammad Ramzan alias Farooq, Tanveer Hussain, Shahid Butt, Mumtaz Ahmad alias Billa, Ishtiaque Ahmad alias Shaki and Shahid Nazeer respectively in the intervening night of 15/16.05.2004 and confirmed their unnatural death due to firearm injuries. All the deceased died on the same day and the medical officers observed the duration between their injuries and death immediate whereas, between death and post-mortem examination 05 to 08-hours.
Dr. Ghulam Abbas Zafar (PW-5) conducted medico-legal examination of injured Ahmad, Waseem Ahmad, Ghulam Muhammad, Syed Abu Bakar, Aftab Hussain, Nazim Hussain, Ashfaque Ahmad, Muhammad Nazir, Shabbir Ahmad, Razzaq Ahmad, Nazeer Hussain, Tanveer-ul-Hassan, Shabbir on the same night and observed fire arm injuries on different parts of their respective bodies.
Dr. Muhammad Alam (PW-1) held autopsy on the dead body of accused Waqar Haider hah alias Billay Shah on 03.06.2004 and observed two fire arm wounds on his dead body being the cause of his death.
7. At the commencement of the trial, the learned trial Court had framed a charge against the appellants and their co-accused namely, Sher Haider alias Abbas Shah, Syed Fazeelat Hussain Shah and Kazim Ali Shah alias Babu Shah to which they pleaded not guilty and claimed to be tried.
8. The prosecution examined 20-witnesses and also produced the reports of Chemical Examiner (Ex.PPP), report of Serologist (Ex.PRR) and the report of Forensic Science Laboratory (Ex.PQQ). The appellants and the co-accused, in their statements recorded under Section 342, Cr.P.C. had denied and controverted all the allegations of fact levelled against them. Appellant Muhammad Rafique Shah, Ahmad Abbas and Muhammad Waseem alias Bhola opted to make statements under Section 340(2) Cr. P.C. on oath.
Appellant Muhammad Waseem alias Bhola also produced documents (Exhs.DA to DN) and (Mark-1 to Mark-13) in his defence, whereas appellant Muhammad Rafique Shah relied on the aforesaid documents produced by his co-accused.
9. Learned trial Court, upon conclusion of the trial, proceeded to acquit Fazeelat Shah, Kazim Shah and Sher Haider whereas, convicted and sentenced the appellants, as stated above vide impugned judgment dated 11.11.2009. Hence, these criminal appeals as well as connected Capital Sentence Reference.
10. Learned counsel for appellants have submitted in unison that the appellants are quite innocent and hey have nothing to do with the alleged occurrence; that the complainant nominated eight accused in the crime report and thereafter, nine more accused were named through supplementary statement on the following day but he did not appear before the trial Court in support of his version; that the prosecution gave up the complainant on written request by his learned counsel and his nqn-production before the trial Court does hit by Article 129 of the Qanun-e-Shahadat Order, 1984 being fatal to the prosecution; that appellants Ahmad Abbas and Waseem alias Bhola also sustained firearm injuries at the spot but the mode and manner of injuries on their person has not been disclosed by the prosecution in the crime report and they were entangled as accused through the supplementary statement by the complainant on the next day, which shows that the incident did not take place in the mode and manner as narrated by the prosecution; that the medical evidence qua starches and blackening on some of the injuries sustained by the deceased, is not compatible with the ocular account; that the incident took place at spur of the moment without any pre-meditation or planning; that the recovery of weapons from appellants Ahmad Abbas and Waseem alias Bhola remained inconsequential due to negative reports of the Ballistic Expert; that some of the accused, in identical role, have already been acquitted of the charge and, thus, the appellants also deserve for the same treatment; that the prosecution has miserably failed to bring home guilt of the appellants beyond shadow of reasonable doubt; that if the Court is not convinced for clean acquittal of the appellants, in any way, it is not a case of capital sentence.
11. Conversely, learned Deputy Prosecutor General appearing for the State assisted by the learned counsel for the complainant has vehemently argued that it was preplanned occurrence where the appellants along with their co-accused committed murder of 14-innocent persons in a brutal and gruesome manner in pursuance of previous incident; that the witnesses of ocular account sustained fire arm injuries at the spot, which confirms their presence at the spot at the relevant time; that the eye-witnesses remained consistent inter-se as to the mode and manner of the occurrence being supported with the medical evidence; that the Investigating Officer and the draftsman prepared site plans without consulting the witnesses of ocular account and, thus, the distance shown between the assailants and the deceased in the said site plans, does not adversely affect the prosecution case; that the complainant was given up being perturbed and old age person; that the motive behind the occurrence was not only proved by the prosecution beyond shadow of reasonable doubt but also admitted in clear words by the defence while making statements under section 342, Cr.P.C.; that the weapons of offence were recovered from appellants Ahmad Abbas and Waseem alias Bhola; that over all 380-crime empties of different kinds of weapon were secured from the venue of occurrence where 14-persons lost their lives and 11-others received firearm injuries; that the prosecution has been able to prove the charge against the appellant beyond shadow of reasonable doubt; that it was a brutal and gruesome murder and attempt to murder of many innocent persons and, thus, the assailants do not deserve any leniency by this Court.
12. We have heard learned counsel for the appellants, learned Deputy Prosecution General appearing for the State assisted by the learned counsel for the complainant and perused the record.
13. Brief history of the instant case is that Ghulam Rasool (given up PW)/father of deceased Ishtiaq alias Shaqi's got lodged the crime report (PW-17/1) wherein he nominated eight accused namely, Ajmal Abbas, Rizwan, Ijaz alias Razi Shah and Babu with the role of climbing over the roof top of adjoining shops/houses along with 5/6 unknown accused whereas, Ghazanfar Abbas, Babu Shah and Sher Haider were attributed the role of making fire shots at car No.Karachi/G9643; appellant Rafique Shah along with Fazeelat Shah and Islam Ali were alleged to have made fire shots at Honda car and accused Rizwan Ijaz alias Razi Shah and Ajmal Abbas along with 5/6 unknown accused were alleged to have made fire shots at the double-cabin Dala resulting into death of fourteen persons at the spot. The complainant made supplementary statement (PW-17/61) on the next day wherein he nominated nine more accused including appellants Ahsan Ijaz, Muhammad Waseem and Ahmed Abbas with the identical role of making fire shots at the vehicles. Unfortunately, the complainant, being perturbed due to age factor, did not appear before the trial Court and he was given up by the prosecution for that very reason. However, three injured witnesses namely, Tanveer-ul-Hassan (PW-14), Nazir Hussain (PW-15) and Razzaq Shah alias Shaia (PW-16) furnished the ocular account. They participated in the Punchayat and while proceeding towards the vehicle on a road, sustained firearm injuries at the hands of the appellants and their co-accused.
14. Tanveer-ul-Hassan, Nazir Hussain and Razzaq Ahmad alias Shaia (PW-14 to PW-16) unanimously demonstrated before the trial Court that on 15.05.2004 they along with 17-other persons namely, Ghulam Rasool, Mumtaz alias Billay Shah, Tahir Naveed, Ishtiaque Ahmad, Mian Imran, Nadeem Mukthar, Shahid Nazeer, Muhammad Ramzan, Muhammad Anaar, Wasif Aleem, Tanveer Hussain, Shahid Latif Butt, Ashfaque, Muhammad Nazim, Munir Shahzad and Shabbir Butt visited Madina Syedan at the Dera of Fazeelat Shah for compromise between Ishtiaq alias Shaqi and Muhammad Rafique Shah. Accused Muhammad Rafique Shah, Waqar Haider alias Billay Shah and Rizwan Ijaz alias Razi along with their companions were equipped with firearm weapons. At about 07:00/07:15 p.m., after finalization of compromise and 'Dua-e-Khair' they along with the deceased proceeded to the road where they had parked the vehicles. Ghazanfar Abbas alias Ali Shah armed with Kalashnikov, Waqar Haider alias Bilay Shah with 223-bore, Waseem Haider alias Sheenay Shah with Kalashnikov, Asif Shah with 223-bore, Muhammad Rafique Shah with 222-bore, Islam Ali with 8-MM, Ahmad Abbas with 44-bore, Waseem Nai with Kalashnikov, Sajjad Masalli with Kalashnikov, Irtaza Haider with Kalashnikov, Rizwan Ijaz with Kalashnikov, Ajmal Abbas with 8-MM, Ahsaan Ijaz with Kalashnikov and Hassan Ijaz with Kalashnikov accompanied them to see-off. Mukhtar, Ishtiaq, Tahir Naveed, Imran and Nadeem Mukhtar boarded on Car No. G/9643-Karachi. Shahid Nazeer, Muhammad Ramzan, Muhammad Anaar, Wasif Ali, Tanveer Hussain boarded in car Honda Civic applied for. Shahid Latif Butt and Ashfaq boarded in the double cabin Dala and Tanveer-ul-Hasssan along with Nazir, Razzaq Ahmad, Nazim, Bashir and Munir was about to board the Dala. Irtaza Haider, Rizwan Ijaz, Ajmal Abbas, Ahsaan Ijaz and Hassan Ijaz climbed up the roofs of the adjoining shops. Ghazanfar Abbas, Waqar Haider, Waseem Haider and Asif Shah started indiscriminate firing on car bearing No.G/9643-Karachi, in consequence of which, all five persons in the car died spontaneously. Muhammad Rafique Shah (appellant), Islam Ali, Sajjad Musalli, Waseem Nai (appellant) and Ahmad Abbas (appellant) started firing at car Honda Civic due to which all the five persons boarded therein died at the spot. Rizwan Ijaz, Irtiza Haider, Ahsan ljaz (appellant/since dead), Hassan Ijaz and Ajmal Abbas made firing on double cabin Dala No. "Naveed-1". Shahid Butt and Ashfaq died at the spot whereas they along with Tanveer-ul-Hassan, Nazim Hussain, Munir Shahzad and Shabbir Butt were seriously injured. Due to their indiscriminate firing, accused Waqar Haider, Waseem Haider, Waseem Nai and Ahmad Abbas also sustained fire arm injuries at the spot. Some of the passerby including Ajmal Abbas and Ahmad Hussain also sustained injuries, who succumbed to the injuries at the spot. They saw the whole occurrence in the light of electric bulb installed at the venue of occurrence. All these injured witnesses stated in line with each other and remained consistent on all material particulars of the incident in minute detail. In cross-examination, they remained firm and the defence could not extract any favourable materials from their mouth rather their consistency qua the date, time, place mode and manners of the occurrence remained un-rebutted despite ordeal of lengthy cross- examination.
15. Learned counsel for the appellants have contended that the complainant, being material witness, was withheld, which is detrimental to the prosecution. We regret to disagree with this contention because the complainant was given up by the prosecution being perturbed due to age factor and as such, he was unable to make statement before the trial Court. Though he was facing trial in another case FIR No.167/05, in respect of offences under Sections 302, 324, 148 and 149 P.P.C. as an accused before the Court yet in the said case his personal attendance had been exempted/dispensed with due to that very reason. The option of appearing as witness and the compulsion of appearing as an accused in criminal trial, are altogether different concepts, which cannot be equated with each other in any manner whatsoever. Anyhow, it is an exclusive prerogative of the prosecution to produce the witness of its own choice. In this case, the prosecution produced three material witnesses, who had stamped injuries on their respective bodies and, thus, their presence at the venue of occurrence was not doubted. The requirement of law is the quality of evidence not the quantity. All these injured witnesses made consistent statements before the trial Court in one go with regard to the mode and manner of the occurrence that how they participated in Panchayat and when they were returning to their homes and about to board in Dala they faced indiscriminate firing at the hands of the appellants and other accused. They had given minute detail of the occurrence without any improvement and even the defence had not questioned their presence at the spot at the relevant time. We have reason to believe that they made true statement before the trial Court.
16. Learned counsel for the appellants have admitted the convening of Punchayat, gathering at the Dera of Billay Shah for compromise between Ishtiaq alias Shaki deceased and Muhammad Rafique Shah (appellant) and participation of the deceased, the injured witnesses and other persons therein where they entered into an amicable settlement and after Dua-e-Khair the assailants accompanied the deceased in order to see them off but this unfortunate incident took place when the guests were boarding in their vehicles. They have questioned only the mode and manner of the occurrence with reference to the site plan (scaled/unscaled) and contend that the medical evidence is not in consonance with the ocular version on account of availability of blackening, charring and burn margins on some of the wounds sustained by the deceased. After careful analysis of the unscaled/scaled site plans of the place of occurrence (Ex.PW-18/3 and Ex.PEE), we have found that though the distance between the deceased and the assailants is not in consonance with the ocular version yet the fact remains that Muhammad Abbas Investigating Officer/Inspector (PW-17) admitted during cross-examination that he prepared the rough site plan in absence of the witnesses of ocular account and that when the draftsman took rough notes from the spot none of the witnesses of ocular account was present there though the complainant was shown available. Akhtar Naqash (PW-7) deposed in cross-examination in following words:-- Only complainant was present at the time when I collected rough notes of the place of occurrence and no PW was present. I saw the complainant first time when I visited the spot and thereafter I did not see him. He was aged about 60/65 years.
This part of statement of the draftsman clearly depicts that the investigating officer extended undue benefit to the accused party by ostensibly leaving some lacunas. Three sets of accused comprising of five each were shown at the distance of 8 x 16 feet from the vehicles at different points whereas some of the injuries sustained by the deceased were showing blackening over the wounds but the question arises as to whether all the accused made firing while standing at one place as statue or they moved here and there according to the situation emerged at the spot. The places mentioned by the Investigating Officer in the un-scaled site plan shows the presence of accused, the deceased, the injured witnesses, the vehicles parked there and the shops around the place of occurrence but unfortunately, despite giving detail, no point has been mentioned therein.
Surprisingly, the Investigating Officer got prepared scaled site plan through draftsman but that exercise too was undertaken in absence of the eye-witnesses. Furthermore, he categorically deposed during cross-examination that "I have not shown any place in the drawing portion of un-scaled site plan prepared by me source of light at the spot. I have not shown points in the drawing portion presence of vehicles, from where accused made firing, where the deceased were present and crime empties etc. were present". This clearly shows that the Investigating Officer was not impartial rather he extended undue benefit to the accused and tried to destroy the prosecution evidence intentionally.
17. Another important relevant aspect of the matter is that in this occurrence, 14-persons from the complainant side including two passerby lost their lives whereas, 2/3 persons died from the opposite side. The autopsy on the dead bodies of each deceased shows a large number of fire-arm injuries of different kinds of weapon on their persons and out of these injuries, a few were having blackening, charring and burn margins. Learned counsel for the appellants have tried to get some benefit on that score but it has been proved on record that the site plans were prepared in absence of the eye-witnesses and, thus, it cannot be taken into account against the prosecution. Even otherwise, during the occurrence a large number of accused including the appellants , were making indiscriminate firing in view of the eyewitnesses, who were not confined at one place rather they were free to move themselves according to the situation emerged at the place of occurrence and, thus, the availability of blackening, burning and charring on some of the wounds were quite obvious.
18. Dr. Ghulam Abbas Zafar (PW-5) conducted medico-legal examination of injured Ahmed, Waseem Ahmad, Ghulam Muhammad, Syed Abu Bakar, Aftab Hussain, Nazim Hussain, Ashfaq Ahmed, Muhammad Nazir, Shabbir Ahmad, Tanveer-ul-Hassan (PW-14), Nazir Hussain (PW- 15), Razzaq Ahmad alias Shaia (PW-16) and Shabbir. He observed two firearm injuries at the abdomen and upper left ear of Razzaq Ahmad alias Shaia (PW- 16), three firearm injuries on left cheek, left side of forehead and left ear of Nazir Hussain and a firearm injury on interior side of left feet of Tanveer-ul-Hassan (PW-14) with the duration of 1 to 2 hours. The Medical Officer confirmed that the witnesses of ocular account sustained injuries caused by firearm weapons and, thus, their presence at the venue of occurrence could not be doubted in any manner. The medical evidence lends full support to the ocular account.
19. Muhammad Abbas, Inspector (PW-17) secured 235-crime empties of Kalashnikov, 49-empties of rifle 222- bore, 91-empties of rifle 223-bore and five empties of rifle 44-bore from the place of occurrence on the same day, which were sent into the office of Punjab Forensic Science Agency on 21.05.2004.
Imran Saleem, SI (PW-19) arrested appellants Ahmad Abbas and Muhammad Waseem alias Moula on 11.06.2004, who led to the recovery of rifle (P-53) along with bullets (P-54/1-10) and Kalashnikov (P-55) along with 08-live bullets (P-56/1-8). These fire arm weapons were deposited into the office of Forensic Science Laboratory, Lahore on 28.06.2004 for getting comparison report but the report in this respect (Ex.PQQ) has been received with negative result. Meaning thereby, these weapons were not used during the occurrence and, thus, the recovery of weapons of offence from the said appellants remained inconsequential whereas, no fire arm weapon was recovered from appellant Rafique Shah.
20. The motive as set up by the prosecution was a previous quarrel between deceased Ishtiaq alias Shaqi and appellant Muhammad Rafique Shah, which was patched up on the same day in a Panchayat at the Dera of Billay Shah. The motive is very clear and admitted one by the other side qua participation of the complainant party in Panchyat, tendering, apology and after Dua-e-Khair and accompanying of the accused with them upto the road side where the vehicles had been parked. The accused awaited till the complainant party took their seats in the respective vehicles and then they started indiscriminate firing with pre-plan and pre-meditation in order to eliminate them forever and, thus, they succeeded to kill fourteen innocent persons at the spot.
21. The acquitted co-accused namely, Sher Haider alias Abbas Shah, Syed Fazilat Hussain Shah and Kazim Ali Shah were though named in the crime report yet none of the injured witnesses implicated them in this case in their statements recorded under Section 161, Cr.P.C. before the police as well as before the trial Court. They were not alleged to have played any role during the occurrence towards causing fire arm injury to any of the deceased or the injured witnesses and even no corroboratory piece of evidence was produced against them before the trial Court. The role of acquitted accused is not at par to that of the present appellants, who took active participation during the occurrence with the role of causing fatal fire arm injuries to the deceased and also the injured witnesses.
22. The appellants, in their statements recorded under Section 342, Cr.P.C., admitted that they visited the Dera of Billay Shah where the complainant party tendered apology for disgracing appellant Muhammad Rafique Shah by deceased Ishtiaq alias Shaqi, who after Panchayat and before boarding in the vehicles, received a telephone call of Tariq, a vagabond of village Drachhi and in response thereto, he abused inhabitants of village Madina Syedan in presence of elders of that village, which resulted into an altercation at the spot and in that process deceased Ishtiaq fired at Syed Waqar Haider alias Billay Shah and thereafter the firing started all around. Had it been so, the number of death-toll/causalities of the accused side would have been much more. Infact, the deceased, who just got their seats, were done to death helplessly in the respective vehicles. In the present scenario, learned counsel for the appellants have argued that they had not denied the occurrence but they have questioned its mode and manner. The facts and circumstances clearly shows that it was a preplanned and pre- meditated incident where all the deceased were done to death by the appellants and their co-accused after Panchayat. The story narrated in statements recorded under Section 342, Cr.P.C. by the appellants that deceased Ishtiaq alias Shaqi received call and abused the villagers, is nothing but a bald assertion and an afterthought story having no substance, whereas their counter stance has rightly been proved by the witnesses of ocular account beyond shadow of reasonable doubt, which is being supported with the medical evidence and other material available on record.
23. Yes, it was a heinous offence where more than fourteen persons had lost their lives and many others sustained serious injuries but there is no cavil to the proposition that mere large number of casualties by itself does not bring the case within the purview of 'terrorism'. The 'design' and 'purpose' mentioned in the Anti- Terrorism Apt, 1997 denotes that the act so committed by the accused should be with the intent to destabilize the country, create law and order situation, attack on the armed forces/law enforces agencies, national installations, purely against the State and State organs without any personal vendetta. This occurrence had taken place on account of difference between two individual private groups, which was based on their previous conflict. In view of recent judgment of larger bench of the Apex Court in case titled Ghulam Hussain and others v. The State and others" (2019 SLJ 1872), the provisions of the Anti-Terrorism Act, 1997 does not attract to the facts and circumstances of the case.
24. Gathering all the facts and circumstances of the case we are fully convinced that the prosecution has been able to prove the charge against the appellants beyond shadow of reasonable doubt for causing the murder of fourteen innocent persons and 11-others, who sustained injuries through cogent, reliable and confidence inspiring evidence. The witnesses of ocular account, have well established their presence at the venue of occurrence because several firearm injuries were stamped on their persons at the spot at the relevant time, which were endorsed by the medical officer while observing the duration of injuries as 1 to 2 hours. It was a heinous offence wherein large number of persons were butchered by the assailants when they went to their village just to tender apology. Apparently, it was a big game when the accused summoned the complainant party in order to resolve the dispute amicably but in fact they were taken into cage in order to eliminate them once for all exactly at the time when they were sitting in the vehicles and made them helpless in their defence. It was an extreme example of preplanned and premeditated occurrence for an inhuman act. The ocular account is fully established supported with the medical evidence. The motive as set up by the prosecution is not only proved but admitted in clear words and the story of receiving phone call by the deceased Ishtiaq alias Shaqi has no substance. In the given circumstances, we have no legitimate exception to differ with the conclusion arrived at by the trial Court qua the conviction of the appellants but so far as the quantum of sentence is concerned, it has already been observed that the recovery of weapon of offence from appellants Muhammad Waseem alias Moula and Ahmad Abbas remained inconsequential due to negative report of the Ballistic Expert while nothing was recovered from appellant Rafique Shah. Furthermore, there was a joint role of the appellants of making indiscriminate firing and no one can say with any degree of certainty that whose fire hit to whom. The case of acquittal of co-accused though has no equation with the case of present appellants yet it can be taken into account as one of the grounds to award lesser sentence. Reference may be made to case titled "Abdul Nabi v.
The State" (2017 SCMR 335):-- "Apart from that a co-accused of the appellant namely, Ghulam Yasin, attributed a role identical to that alleged against the appellant, has already been acquitted by the trial court and, thus, some doubts about the veracity of the prosecution's case have emerged which doubts about the veracity of the prosecution's case having the same may well be considered towards exercising caution in the matter of the appellant's sentence of death."
It has also been settled by now that when a case qualifies the awarding of both sentences of imprisonment for life and that of the death, the proper course for the Courts, as a matter of caution, is to give preference to the lesser sentence. Reference may be made to case titled "Ghulam Mohy-ud-Din alias Haji Babu and others v. The State" (2014 SCMR 1034) wherein it has been observed at page 1044 as:-- In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding, life imprisonment instead of death sentence."
25. In view of what has been discussed above, the appeal in hand is partly dismissed with the result that conviction of the appellants in offence under Section 302(b)/149, P.P.C. is maintained, however, the same is converted into one of imprisonment for life on fourteen counts each. They are acquitted of the charge in offences under Sections 7(a) and 7(d) of Anti-Terrorism Act, 1997. The amount of compensation and the sentences in lieu thereof shall remain intact. The conviction and sentence of the appellants in the remaining offences shall also remain intact. They will be entitled to the benefit of Section 382-B, Cr.P.C.
26. Capital Sentence Reference No.17-T of 2010 is answered in the negative and death sentence of appellants Rafique Shah, Ehsan Ijaz, Muhammad Waseem alias Mola and Ahmad Abbas is NOT confirmed.
27. As has already been observed in paragraph No. 16 of this judgment Muhammad Abbas, Inspector (PW-17) has been found guilty of ostensibly conducting defective investigation. Office is directed to prepare a separate file and transmit the same to the learned trial Court with the direction to initiate proceedings against the aforesaid police officer under subsection (7) of Section 21- A of Anti-Terrorism Act, 1997.