Sadaqat Ali Khan, J.--This single judgment shall dispose of Driminal Appeal No 175 of 2015 filed by Muhammad Muavia @ Muaz Asmatullah appellant, (against his convictions) and C.S.R No. 07-T )f 2015 sent by trial Court for confirmation of death sentence of Muhammad. Muavia @ Muaz @ Asmatullah appellant or otherwise, as )oth the above stated matters have arisen out of the same judgment sated 17.1.2015 passed by learned Special Judge, Anti-T errorism Jourt-I, Lahore, according to which appellant was convicted and ;entenced as under: Muhammad Muavia @ Muaz @ Asmatullah sin Nazir Ahmad.
302, PPC He was sentenced to death as Ta'zir along with compensation amounting to Rs. 5,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of Munir Umair deceased, in default thereof, to further undergo 6 moaths S.I.
7(i)(a)A TA, 1997.He was sentenced to death as Ta'zir along with fine of Rs. 5,00,000/-, in default thereof, to further undergo 6 months S.I.
302, PPC He was sentenced to DEATH as Ta'zir along with compensation amounting to Rs. 5,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of Noor Amin deceased, in default thereof, to further undergo 6 months S.I.
7(i)(a), ATA, 1997He was sentenced to death as Ta'zir. Along with fine of Rs. 5,00,000/-, in default thereof, to further undergo 6 months, S.I.
302, PPC He was sentenced to death as Ta'zir along with compensation amounting to Rs. 5,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of Muhammad Ashraf deceased, in default thereof, to further undergo 6 months S.I.
7(i)(a)A TA, 1997.He was sentenced to DEATH as Ta'zir along with fine of Rs. 5,00,000/-, in default thereof, to further undergo 6 months S.I.
449, PPC He was sentenced to imprisonment for life along with fine of Rs. 2,00,000/-, in default thereof, to further undergo 4 months S.I.
3-ESA He was sentenced to death as Ta'zir.
4-ESA He was sentenced to imprisonment for life.
13-Arms Ordinance, 1965He was sentenced to 7 years R.I along with fine Rs.
1,00,000/-, in default thereof, to further undergo 3 months S.I.
(The amounts of compensation were ordered to be recovered as arrear of land revenue. If recovered, then legal heirs of each deceased shall be entitled to receive the same as per their legal shares. All the sentences of imprisonment were ordered to run concurrently . Benefit of Section 382-B, Cr .P.C. was given to the appellant). in case FIR No. 206 dated 28.5.2010 under Sections 302/324/353/186/452/121/148/149, PPC, 7-Anti-T errorism Act, 1997, 12-D B.A & under Section 3/4 of Explosive Substances Act, Police Station Model Town, District Lahore.
2. The facts of the case have been stated by Muhammad Javed Inspector (PW-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-through 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 28.1.2012 and then on 13.1.2015 against the appellant under Sections 302/324/353/186/148/449/148/149/120-B, PPC read with Section 7(a)(c)(h)(-Anti-T errorism Act, 1997, under Sections 3 & 4 of Explosive Substances Act, 1908 and under Section 13/XX/65 Arms Ordinance, to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Ihrar Ahmad PW-1. Dr. Fowad Karim PW-2, Dr. Liaquat Ali PW-3, Dr. Rizwan Ahmad PW- 4, Muhammad Sharif 7176-C PW-5, Allah Rakha 5567/H.0 PW6, Allah Yar PW-7, Syed Younis Bukhari. PW-8, Muhammad Saleem 8228/H.0 PW-9, Dr. Ashter Ali Zaidi PW-10, Jamshed Ahmad S.I PW-11, Muhammad Iqbal 1059/H.0 PW-12, Muhammad Javed Inspector PW-13, Dr. Muzammil Hussain PW-14, Dr. Hamid Saeed PW-15, Atta Ullah 7646/C PW-16, Zikria Yousaf Inspector PW-17, Azhar Saqib Inspector PW-18 and Shahzad Ahmad 11460/C PW-19 whereas, PWs namely Mushtaq Ahmad 5412/C, Asif 14766/C, Allah Rakha 812/C, Babar Rehman, Asif Shaukal Ali, Amjad Ramzan, Muham mad Latif Irfan, Iftikhar-ul-Haq SSP and Rana Abdul Hameed Dr Director ISI were given up being unnecessary and after tendering documentary evidenc e i.e. Exh.P A to Exh.PDDD/27 closed the prosecution evidence.
6. Medical evidence was furnished by Dy. Fowad Karim PW-2, Dr. Liaquat All PW-3, Dr. Rizwan Ahmad PW-4, Dr. Ashtar All Zaidi PW-10, Dr. Muzammil Hussain PW-14 and Dr. Hamid Saeed PW-15 respectively , detail which is as under: Dr. Fowad Karim PW-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 PW3 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 2 x 2 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 (PW-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 (PW-3) further stated that on the same clay i.e. 28.5.2010 he medically examined Naim at 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 (PW-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 , advisex X-Rays.
He (PW-3) further stated that on the same day i.e. 28.5.201.0 he medically examined Muzafar Ahmad injured and observed following injuries on his person.
A lacerated wound 12 x 1 cm x skin deep s 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 (PW-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 PW-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.
2. 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 PW-10 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. Mnzammil Hussain PW-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 1- 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.
2. Multiple abrasions over the front of chest closed to epigastria.
3. Abrasion over the right anterior iliac spine 6x2. 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 viscer a(heart, lungs, liver, spleen and kidney), as a result of Injury No. 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 PW-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 No. 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-bours."
7. On the other hand, statement of the appellant was recorded under Section 342, Cr.P.C. who refuted the allegations so leveled against him. The appellant neither opted to appear as witness under Section 340(2), Cr.P.C. nor produced any defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" Muhammad Muavia @Moaz @Asmat Ullah appellant replied as under: "As I have already stated that I was abducted by the agencies from my house almost six months prior to the occurrence, during this period, the agencies tortured me very badly and I became severely injured and the agencies in order to save their skin from proceedings regarding illegal confinement and injuries inflicted by them on my body , 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 the appellant with above said sentences. Hence, this appeal.
9. Learned counsel for the appellant has contended that:-
(i) the judgment of the trial Court dated 17.1.2015 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial Court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial Court is not maintainable in the eyes of law;
(iv) lastly submitted that instant appeal may be accepted and the judgment of the trial Court dated 17.1.2015 may kindly be set aside and appellant/convict may be acquitted.
10. On the other hand, learned D.D.P .P has vehemently opposed the appeal and submitted that-
(i) the prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the appeal.
11. We have heard, the learned counsel for the appellant as well as learned D.D.P .P and. perused the record.
12. The detail of prosecution case has already been given in para-2 of this judgment, therefore, there is no need to repeat the same to avoid the 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 moved, by Col. Munawar Ahmad Khan who alongwith other eye-witnesses mentioned in the FIR Ex.P.LL/2 has not appea red before the trial Court as all these witnesses have left their residences due to esteemed, threat as observed by the learned trial Court in sub- para (ii) of para 14 of the impugned judgment, which is hereby reproduced: "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."
14. The prosecution has introduced following accused in this case: 1 Abdullah @ Muhammad @ Masab(This accused has been tried separately being juvenile and was convicted by the learned trial Court through a separately judgment and his Criminal Appeal No. 176 of 2015 has been dismissed by this Court today i.e. 17.04.2017)
2 Muhammad Muavia @ Moaz @ Asrnat Ullah(Appellant tried, separately bring adult)
27 persons are deceas ed of this case whereas 32 persons are injured of this case, well mentioned in paras 12 and 15 of the impugned judgment (Muhamm ad Javed Inspector PW13 has stated in his statement (examination-in- chief) before the trial Court that 29 persons were killed and 150 were injured in the occurrence). Injuied 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 the appellant Muhammad Muavia @Moaz @Asmat Ullah has not been mentioned in the FIR, yet he alongwith his co-accused Abdullah @ Muhammad @ Masab (tried separately being juvenile and was convicted by the learned trial Court through a separately judgment and his Criminal Appeal No. 176 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 the appellant Muhammad Muavla @ Moaz (a)
Asmat Ullah and his co-accused Abdullah alias Muhammad alias Masab before 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 Tayyah 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 Muauia 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 throug h 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."
15. Muhammad Iqbal constable P.W.12 has supported his evidence. These two P.Ws. have absolutely no grudge or to falsely implicate the appellant 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 case. 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 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 magazines P-23/1-4 on unloading the same 30-live bullets were recovered which were taken into possession vide recovery memo. Ex.PRR. On 28.5.20 10 one damaged structure of motorcycle P3 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 denomination 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.PSS, 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 Kameez P-9 and Shalwar P-10 and produced the same before 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.
16. Report of FSL Ex.P.ZZ shows that rife recovered from the appellant marked as R-2 has matched with the crime empties recovered from the place of occurrence, detail of which is mentioned in the report.
17. 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 fully supported the ocular account furnished by the above mentioned witnesses.
18. Adverting to the defence plea of Muhammad Muavia @ Moaz @ Asmat Ullah appellant, he stated, 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 six months prior to the occurrence, during this period, the agencies tortured me very badly and I became severely injured and the agencies in order to save their skin from proceedings regarding illegal confinement and injuries inflicted by them on my body , 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."
The appellant has not opted to appear as witness under Section 340(2), Cr.P.C. nor produced any oral as well as documentary evidence. Considering above, it is concluded that Muhammad Muavia @Moaz @_ Asmat Ullah appellant has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with sufficient reasons.
19. Having considered all the pros and cons of this case, the irresistible conclusio n drawn by this Court is that the prosecution has proved its case against the appellant Muhammad Muavia @ Moaz (a) Asmat Ullah through the aforementioned confidence inspiring and reliable evidence. The appellant Muhammad Muavia @ Moaz @ Asmat Ullah has committed the shocking and callous murders of 27 innocent persons and caused injuries to 32 innocent persons through bomb blast and firing without their fault. We are unable to find out any mitigating circumstance in favour of the appellant. Therefore, he does not deserve any leniency . In these circumstances, we are of the considered view that there is no extenuating circumstance available in favour of the appellant for extending him any benefit regarding his sentences.
20. For the foregoing reasons, the convictions and sentences of Muhammad Muavia @Moaz @ Asmatullah appellant awarded by the trial Court are maintained. The compensation, fine awarded by the trial Court and sentence in default thereof are also maintained. Resultantly , Criminal Appeal No. 175 of 2015 filed by Muhammad Muavia @ Moaz @ Asmat Ullah appellant is dismissed and death sentence awarded to Muhammad Muavia @ Moaz @ Asmat Ullah appellant on all counts is CONFIRMED . C.S.R No. 07-T of 2015 is answere d in AFFIRMA TIV1E .