Sadaqat Ali Khan, J.--The instant. Criminal Appeal No. 176 of 2015 has been filed by Abdullah alias Muhammad alias Masab (tried being juvenile) against judgment dated 17.01.2015 passed by learned Judge Anti-T errorism Court-I, Lahore according to which Abdullah alias Muhammad alias Masab was convicted and sentenced as under: Abdullah alias Muhammad alias Masab appellant.
1. U/S. 302, PPC for murder of Munir Umair sentenced him to imprisonment for life with compensation of Rs.
5,00,000/- U/S. 544-A of Cr .P.C. and in default whereof, to undergo SI for 6 months.
2. U/S. 7(i) (a) of Anti-T errorism Act, 1997 sentenced him to imprisonment for life with fine of Rs. 5,00,000/- and in default whereof, to undergo SI for 6 months.
3. U/S. 302, PPC for murder of Noor Amin sentenced him to imprisonment for life with compensation of Rs.
5,00,000/- U/S. 544-A of Cr .P.C., and in default whereof, to undergo SI for 6 months.
4. U/S. 7(i) (a) of Anti-T errorism Act, 19.97 sentenced him to imprisonment for life with fine of Rs. 5,00,000/- and in default whereof, to undergo SI for 6 months.
5 U/S. 302, ' PPC for murder of Muhammad Ashraf sentenced him to imprisonme nt for life with compensation of Rs. 5,00,000/- U/S. 544-A of, Cr .P.C. and in default whereof, to undergo SI for 6 months.
6. U/S. 7(i) (a) of Anti-T errorism Act, 1997 sentenced him to imprisonment for life with fine of Rs. 5,00,000/- and in default whereof, to undergo SI for 6 months.
7. U/S. 449, PPC sentenced him to imprisonment for life with fine of Rs. 2,00,000/-and in default whereof, to undergo SI for four months.
8. U/S. 3 of the Explosive Substances Act, 1908 sentenced him to imprisonment for life.
U/S. 4 of the Explosive Substances Act, 1908 sentenced him to imprisonment for life.
10. U/S. 13 of the Arms Ordinance, 1965 sentenced him to seven years S.I. with fine of Rs. 1,00,000/-and in default whereof, to undergo SI for three months.
The amount of compensation shall be recovered as an arrear of land revenue. If recovered then legal heirs of each deceased shall be entitled to receive the same as per their legal shares. Benefit of Section 382-B, Cr.P.C. was extended to Abdullah alias Muhammad alias Masab and all the sentences were ordered to run concurrently . The above sentences, were passed by the learned trial Court in case FIR No. 206 dated 28.05.2010 under Sections 302, 324, 353, 186, 148, 149, 121, 452, PPC read with Sections 3/4 Explosive Substances Act, 1908, Section 7 of Anti-T errorism Act, 1997, 12-D of BA Police Station Model Town, Lahore.
2. The facts of the case have been stated by Muhammad Javed Inspector P.W. 13 in his statement before the learned trial Court which is hereby reproduced for narration of the facts: "On 28.5.2010, I was posted as SHO, PS Model Town, Lahore. I along with Muhammad Iqbal ASI, Muhammad Tayyab and Shaukat Ali were present along with official vehicle LEG, 1206 at Bank Square Market Model Town, Lahore. On the report of tiring from C-Block, we reached at 87-C Model Town, Bait-un- Noor and found that a security guard had been murdered and motorcycle was laying. Abdullah and Muavia present in Court were making firing. 29 persons had died and more than 150 had injured. The persons worshiping there caught hold the accused and Col. Munawar produced the accused present in the Court before me. On their search, one SMG, eight hand grenades, 30 bullets and one suicide explosive jacket were recovered from each accused. Spectacles and some money were also recovered on their search. I took the recovered articles. Col. Munwar Ahmad presented application Ex.PLL. I recorded my proceedings Ex.PLL/1 which are in my hand writing and signed by me. I sent the complainant for registration of case throu gh Muhammad Tayyab/C. The case was registered. In the complaint Col. Munawar had stated that he had come to say Jumma prayer in the mosque. The terrorist entered into the mosque and they started firing. Numbers of worshipper were dead and injured. On slow down of firing he arrested the accused and produced- before me."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 13.01.2015 against Ahdullah alias Muhammad alias Masab appellant under Sections 302, 324, 186, 449, 148, 149, 353, 120-B, PPC read with Sections 7(a), 7(c), 7(h) Anti-T errorism Act, 1997 and U/S. 13 of the Arms Ordinance, 1965 to which he pleaded not guilty and prosecution evidence was summoned.
5. The prosecution produced Ibrar Ahmad P.W.1, Dr. Fowad Karim P.W.2, Dr. Liaqat Ali P.W.3, Dr. Rizwan Ahmad P.W.4, Muhammad Sharif P.W.5, Allah Rakha P.W.6, Allah Yar P.W.7, Syed Younas Bukhari Draftsman P.W.8, Muhammad Saleem P.W.9, Dr. Ashter Ali Ziadi P.W.10, Jamshed Ahmad S.I. P.W.11, Muhammad Iqbal P.W.12, Muhammad Javed Inspector P.W.13, Dr. Muzammil Hussain P.W.14, Dr. Hamid Saeed P.W.15, Allah Ditto. P.W.16, Zikria Yousaf Inspector P.W.17, Azhar Saqih Inspector PW.18 and Shazad Ahmad P.W.19, whereas PWs namely Iftikhar-ul-Haq SSP and Rana Abdul Hameed Deputy Director ISI being unnecessary and after tendering certain documents including report of FSL Ex.P.ZZ, report of PFSA Ex.P.AAA and those of Chemical Examiner Ex.P.BBB/1 to Ex.P .BBB/25 closed its evidence.
6. Medical evidence was furnished by Dr. Fowad Karim P.W.2, Dr. Liaquat All P.W. 3, Dr. Rizwan Ahmad P.W.4, Dr. Ashtar Ali Zaidi P.W. 10, Dr. Muzammil Hussain P.W.14 and Dr. Hamid Saeed P.W.15. Detail of their depositions is as under:.
Dr. Fowad Karim P.W.2 stated that, on 28.5.2010 he issued 15 death certificates of Mubasher Ahmad, Mian Munir Ahmad, Malik Zubair , Muhammad Akram Virak, Sajid Naeem, Muhammad Yaheya Khan, Sheikh Muhammad Younas, Nazir Ahmad, Anwar Khan, Shahid Ahmad, Ch. Hafeez Advocate, Ch. Muhammad Malik, Muhammad Ashraf, Syed Irshad and Arshad Butt which are Exh.P A to Exh.PP .
Dr. Liaquat Ali P.W.3 stated that on 28.5.2010 he conducted medical examination of injured Mubarak Ahmad and observed following injuries on his person:- 1.A A fire-arm entry wound 2x2 cm, on lateral aspect of left elbow .
1-B. A fire-arm exit wound 4x4 cm on medial side of left elbow .
2. A lacerated wound 6x6 cm on front of middle of abdomen with prolapse of gut through the wound.
He (P.W.3) further stated that on the same day i.e. 28.5.2010 he medically examined Ghazanfar injured and observed following injuries on his person:
1. A lacerated wound 6x4 cm on front of right femur middle part, advised X-Ray .
2. A lacerated wound 4x3 cm on front of lower part of abdomen, advised X-Rays.
He (P.W.3) further stated that on the same day i.e. 28.5.2010 he medically examined Naimat Ullah injured and observed following injuries on his person: 1-A A fire-arm entry wound 2x2 cm, margins inverted on outer and back side of left lumber region upper part, advised X-Rays.
1-B. A fire-arm exit wound 2x2 cm, margins everted on back and inner side of lumber region lower part above iliac crest region advised X-Rays.
He (P.W.3) further stated that on the same day i.e. 28.5.2010 he medically examined Muhammad Yamin injured and observed following injuries on his person:- 1-A A fire-arm entry wound 4 x 2.5 cm x DNP on outer side of right leg on lower part 5 cm above right ankle, advised X-Rays.
1-B. A fire-arm exit wound 2.5 x 2.5 cm with everted margins on inner side of right leg lower part 3 cm above right ankle advised X-Rays.
2. A lacerated wound 3 x 0.7 cm x muscle deep, 3-cm below outer part of right eye horizontally , advised X-Rays.
He (P.W.3) further stated that on the same day i.e. 28.5.2010 he medically examined Muzafar Ahmad injured and observed following injuries on his person: A lacerated wound 12x1 cm x skin deep on left side of front of abdomen 9 cm above and outer to umbilicus in traverse direction. There were multiple burning areas spots) having dimensions of 2 cm x 1 cm to 0.2 cm x 0.2 cm in area of 10 cm x 6 cm on the inner side of the wound.
He (P.W.3) further stated that on the same day i.e. 28.5.2010 he medically examined Syed Shamshad Ali injured and observed following injuries on his person:- A lacerated wound 15 x 10 cm x tendons exposed on lateral aspect of left heal. Advised X-Rays.
Dr. Rizwan Ahmad P.W.4 stated that on 29.5.2010 he conducted post-mortem examination on the dead body of Mian Munir Umer deceased and observed as under:-
1. A fire-arm wound of entry lx1 cm on back of right hand 4 cm below right wrist joint with inverted margins.
1.B A fire-arm wound of exit 3x2 cm with everted margins on the palmer aspect of right hand with fracture of underlying bones visible.
A big open gapping fire-arm wound 6x4 cm on right side of front of head 0.5 cm right of mid line and 0.5 cm above bridge of nose.
Fractured bones of cranial cavity were visible.
3. A fire-arm wound 13x4 cm on top of head 2 cm left of mid line with everted margins and bones fractured.
4. A Fire-arm wound 13x4 cm on right side of head 4 cm above right eye and 12'O clock position with inverted margins and located 7.5 cm right of mid lines.
Underlying fractured bones were visible and brain matter was coming out of it. REMARKS: Injuries stated above were anti mortem, cause of death in this case was Injuries No. 2, 3 and 4, causing damaged to brain, leading to shock, coma and death. These injuries were sufficient to cause death in an ordinary course of nature. Probable time between injuries and death was immediate and between death and PME was 24 to 25 hours.
Dr. Ashter Ali Zaidi, PW10 stated that on 28.5.2010, he received many injured coming to the sight of bomb blast and firing incident, happened in Model Town, Lahore. Out of those I examined Mubarak Ahmad Tahir and found received dead.
Dr. Muzammil Hussain P.W. 14 stated that on 29.5.2010 he conducted post-mortem examination on the dead body of Noor Amin deceased and observed as under: EXTERNAL INJURIES Big gapping wound involving the whole back, of chest: and abdomen, fractures of ribs, sternum and damaging the vertebral column extending from C5 to L3. Thoracic and abdominal organs/viscera (lungs, heart, liver lope of small and large intestine, omentum was visible and injured.
Multiple abrasions over the front of chest closed to epigastria.
Abrasion over the right anterior iliac spine 6 x 2.1 cm.
OPINION All above stated injuries were ante-mortem and caused by as a result of explosion. Cause of death in this case was damage to thoracic and abdominal viscera(heart, lungs, liver, spleen and kidney), as a result of Injury Nos. 1 and 2.
These injuries (1 and 2) were sufficient to cause death in an ordinary course of nature. Probable time between injury and death was immediate and between death and Post Mortem Examination was twenty hours.
Dr. Hamid Saeed P.W. 15 stated that on 28.5.2010 he conducted post-mortem examination on the dead body of Muhammad Ashraf deceased and observed as under: INJURIES: 1-A. A fire-arm wound of entry 3.5 x 2 cm on right side of the chest 1 cm from right breast nipple and 9 cm below right shoulder .
OPINION The injuries stated above were ante mortem, caused by fire-arm weapon. The cause of death in this case was injury to vital organs, lung and major blood vessels as a result of Injury Nos. 1-A and 1-B. This injury was sufficient to cause death in an ordinary course of nature. The probable time between injuries and death immediate and between death and PME was about 12-hours."
7. On the other hand, statement of Abdullah alias Muhammad alias Masab was recorded under Section 342, Cr.P.C. in which he refuted the allegations leveled against him by the prosecution. He neither opted, to appear under Section 340(2), Cr.P.C. as a witness nor produced, any oral as well as docum entary evidence. In reply to the question "Why this case against you and why the PWs deposed against you? Abdullah alias Muhammad alias Masab replied as under: "As I have already stated that I was abducted by the agencies from my house almost a year prior to the occurrence and the agencies in order to save their skin from proceedings regarding illegal confinement handed over me to police of Police Station Model town on the day of occurrence in, order to involve me in this false case. I am innocent."
8. After conclusion of the trial, learned, trial Court convicted Abdullah alias Muhammad alias Masab appellant with above stated sentences. Hence this appeal.
9. Learned counsel for appellant has contended that: i. the judgment of the trial Court dated 17.01.2015 is against law and facts and is liable to be set-aside; ii. it is submitted that the story of the prosecution is improbable and not believable; iii. it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial Court wrongly convicted appellant in surmises and conjectures; iv. and lastly submitted for the acceptance of the appeal of the present appellant;
10. On the other hand, learned DDPP has vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the appellant as well as learned DDPP and perused the record.
12. The detail of prosecution case has been given in para 2 of this judgment, there fore, there is no need to repeat the same to avoid duplication and repetition.
13. According to the FIR, occurrence took place on 28.05.2010 at 1:35 p.m., whereas FIR was registered on the same day i.e. 28.05.2010 at 2:10 p.m. on the written application Ex.P.LL/2 moved by Col. Munawar Ahmed Khan who along with other eye-witnesses mentioned, in. the FIR Ex.P.LL has not appeared before the trial Court as all these witnesses have left their residences due to extreme threat as observed by the learned trial Court in sub-para
(ii) of para 14 of the impugned judgment which is hereby reproduced as under: "ii. It is correct that eye-witnesses as mentioned in the complaint along with complainant and injured did not appear in the witness box. PW-12 and PW-13 are also eye-witnesses of the occurrence. Record shows that the witnesses were summoned but the report is that they left their residences and their whereabouts are not known. It so happened due to threats of extreme terrorists, they all concealed themselves in order to avoid to appear in- the Court"
Prosecution has introduced following accused in this case: Muhammad Moavia alias Moaz alias Asmat Ullah (This accused has been tried separately being adult and was convicted by the learned trial Court through a separately judgment and his Criminal Appeal No. 175 of 2015 has been dismissed by this Court today i.e. 17.04.2017)
Abdullah alias Muhammad alias Masab. (appellant tried being juvenile)
27 persons are deceased of this case whereas 32 persons are injured of this case, well mentioned in paras 12 and 15 of the impugned judgment (Muhammad Javed Inspector P.W.13 has submitted in his statement/examination-in- chief that 29 persons died and 150 were injured during the occurrence). Injured P.Ws. did not appear before the learned trial Court. Place of occurrence is the Bait-ul-Noor , worship place of Jamaat Ahmadia situated in Block-C, Model Town Lahore. No doubt, name of Abdullah alias Muhammad alias Masab has not been mentioned in the FIR, yet he along with his co-accused Muhammad Moavia alias Moaz alias Asmat Ullah (been tried separately being adult and was convicted by the learned trial Court through a separately judgment and his Criminal Appeal No. 175 of 2015 has been dismissed by this Court today i.e. 17.04.2017) has been apprehended at the spot by worshipers mentioned, in the FIR, who produced Abdullah alias Muhammad alias Masab and his co-accused Muhammad Moavia alias Moaz alias Asmat Ullah to Muhammad Javed. Inspector P.W.13 who stated in his statement (examination-in--chief) as under: "On 28.5.2010, I was posted as SHO, PS Model Town, Lahore. I along with Muhammad Iqbal ASI, Muhammad Tayyab and Shaukat Ali were present along with official vehicle. LEG 1206 at Bank Square Market Model Town, Lahore. On the report of tiring from C-Block, we reached at 87-C Model Town, Bait-un-Noor and found that a security guard had been murdered and motorcycle was laying. Abdullah and Muavia present in Court were making firing. 29 persons had died and more than 150 had injured. The persons worshiping there caught hold the accused and Col. Munawar produced the accused present in the Court before me. On their search, one SMG, eight hand grenades, 30 bullets and one suicide explosive jacket were recovered from each accused. Spectacles and some money were also recovered on their search. I took the recovered articles. Col. Munwar Ahmad presented application Ex.PLL. I recorded my proceedings Ex.PLL/1 which are in my hand writing and signed by me. I sent the complainant for registration of case throu gh Muhammad Tayyab/C. The case was registered. In the complaint Col. Munawar had stated that he had come to say Jumma prayer in the mosque. The terrorist, entered into the mosque and they started firing. Numbers of worshipper were dead and injured. On slow down, of firing he arrested the accused and produced before me."
Muhammad Iqbal Head Constable P .W.12 has supported his evidence.
These two P.Ws. have absolutely no grudge or to falsely implicate appellant Abdullah alias Muhammad, alias Masab in the present case. They were cross-examined, at length, but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the cade. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring. Allah Ditta constable PW. 16 has stated in his statement (examination-in-chief) as under: "On 28.5.2010, I was posted in P.S Model Town. On the same day, an occurrence took place at 87-C Model Town and I along with Azhar Saqib Inspector Incharge Investigation went to the place of occurrence and took, into possession 176 empties of rifle P-11/1-1 76 through recovery memo. Ex.POO, attested by me and Shahzad/C, A rifle was recovered from accused Abdullah P-12, eight hand grenades P-13/1-8 along with bandolier P-14, four magazines P-15/1-4 on unloading the same 30 live bullets P-16/1-30 were recove red, one explosive jacket P-17, one . spectacle P-18 which were taken into possession vide memo. Ex.PQQ, attested by me and Shahzad Ahmad/C. Similarly from accused Muavia one rifle P-19, eight hand grenades P-20/1-8 along with a bandolier P-21, one explosive jacket P-22, four magazine s P-23/1-4 on unloading the same 30-live bullets were recovered which were taken into possession vide recovery memo. Ex.PRR. On 28.5.2010 one damaged structure of motorcycle P-3 on which accused reached at the place of occurrence was recovered which was taken into possession vide memo.
Ex.PCC and Rs. 1260 were recovered from accused Abdullah with the denominatio n of one of one thousand P-24, two notes of one hundred P-25/1-2, one note of Rs. 20 P-26, three notes of rupee ten P-27/1-2 and two notes of Rupees five each P-28/1-2 which were taken into possession vide memo. Ex.P SS attested by Shahzad/C and myself. I got conducted PME of Mian Munir and after PME, M.O. handed over to me bloodstained last worn clothes of Mian Munir Kumeez P. 9 and Shalwar P-10 and produced the same befor e I.O. who took the same into possession vide memo. Ex.PFF . Thirty live bullets recovered from the magazine from Mouvia accused are P-29/1- 30.".
Azhar Saqib Inspector P . W. 18 has supported his evidence.
14. Report, of FSL Ex.P.ZZ shows that rifle recovered from appellant Abdullah alias Muhammad alias Masab marked as R-I had matched with the crime empties recovered from the place of occurrence, detail of which is mentioned in the report.
15. Medical evidence was furnished, by Dr. Fowad Karim P.W.2, Dr. Liaquat Ali P.W,3, Dr. Rizwan Ahmad P.W.4, Dr. Ashtar Ali Zaidi P. W. 10, Dr. Muzammil Hussain P.W.14 and Dr. Hamid Saeed P.W.15, detail of which has been given in Para 6 of this judgment, therefore, there is no need to repeat the same to avoid, duplication and repetition. However , considering the evidence of the above mentioned medical officers, we are of the view that the medical evidence has filly supported the ocular account furnished by the above mentioned witnesses.
16. Adverting to the defence plea of Abdullah alias Muhammad, alias Masab appellant, he staled, in reply to the question "Why this case against you and why the PWs deposed against you? as under: "As I have already stated that I was abducted by the agencies from my house almost a year prior to the occurrence and the agencies in order to save their skin from proceedings regarding illegal confinement handed over me to police of Police Station Model town on the day of occurrence in order to involve me in this false case. I am innocent."
Abdullah alias Muhammad alias Masab appellant has not opted to appear as witncss under Section 340(2), Cr.P.C. as a witness nor produced any oral as well as documentary evidence. Considering above, it is concluded that appellant Abdullah alias Muhammad alias Masab has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with suf ficient reasons.
17. In view of the above discussion, the prosecution has proved its case beyond shadow of doubt against Abdullah alias Muhammad alias Masab appellant through ocular account furnished by the above mentioned witnesses supported by medical evidence discussed earlier . Learned trial Court has rightly convicted Abdullah alias Muhammad alias Masab appellant, hence, his convictions and sentences awarde d by the learned trial Court are maintained and Criminal Appeal No. 176 of 2015 is dismissed.