' MUHAMMAD NASEEM CHAUDHRI, J.--- An occurrence took place on 6-7-1991 at 9-30 a.m. In front of Alaf Mohallah, Rabwah within the area of Police Station Rabwah, District Jhang wherein five persons namely Haji Muhammad Sarfraz, Musarrat Abbas, Zahoor Ahmad, Khizar Hayat and Ahmad Ali Machhi were murdered. The investigation of the case was conducted. The challan was submitted.
The appellants-convicts namely Muhammad Yar son of Wali Muhammad, Yara alias Allah Yar son of Shahu, Zafar alias Zafar Abbas son of Rehma, Ahmad son of Muhammad all Rahuka Lali by caste and residents of Khai, Tehsil Chiniot, District Jhang. Mian Ahmad son of Mian Amir, caste Lali, resident of Shamlat, Tehsil Chiniot, District Jhang, Muhammad Nawaz son of Muhammad Baldish, caste Bhatti, resident of Peer Ranjha, Tehsil Chiniot, District Jhang; three proclaimed offenders- convicts namely Tahir Ahmad alias Tahiri son of Muhammad Yar, Barkhurdar alias Barkha son of Muhammad and Muhammad Hayat alias Fauji, all Rahuka Lali by caste, residents of Village Khai, Tehsil Chiniot, District Jhang; acquitted accused namely Manzoor Ahmad son of Ghulam Hussain, Muhammad Hayat son of Rehma and Khizar Hayat son of Rahma, all Rahuka Lali by caste and residents of village Khai, Tehsil Chiniot, District Jhang and acquitted accused namely Ahmad Sher son of Sikandar Khan, caste Bhatti, resident of Chak No,138, Tehsil Chiniot, District Jhang were tried by Mr. Shafique Ahmad Butt, Judge, Special Court No,1 for Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi. Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and Muhammad Hayat alias Fauji proclaimed offenders were tried in absentia who as required by law were provided the assistance of the Advocates.
2. The aforesaid persons were charged under section 302/34/109/120-B, Pakistan Penal Code.
3. As expressed above, Manzoor Ahmad son of Ghulam Hussain, Ahmad Sher son of Sikandar Khan, Muhammad Hayat son of Rehma and Khizar Hayat son of Rehma were acquitted. The proclaimed offenders namely Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and Muhammad Hayat alias Fauji were convicted in absentia alongwith the appellants.
4. Following sentences were awarded to the convicts:--
(vi) Death penalty each and fine of Rs,1,00,000 each or in default of its payment to undergo R.I. For a period of two years each under section 302/34, P.P.C. The fine if recovered shall be given to the respective heirs of the respective deceased (on each five counts).A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia). B.(i) Muhammad Yar son of Wali Muhammad.Mian Ahmad son of Amir.Tahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).C.(i) Muhammad Yar son of Wali Muhammad.
Muhammad Nawaz son of Muhammad Bakhsh.Ahmad son of Muhammad Life imprisonment each under section 302/109, Pakistan Penal Code (on each five counts). Barkhurdar alias Barkha son of Muhammad (in absentia). Life imprisonment each under section 120-B, Pakistan Penal Code (on each five counts).
A.(i)Muhammad Yar son of Wali Muhammad.
(ii) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu.
(iii) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of Rahma
(iv) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).
(v) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia).
A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia). B.(i) Muhammad Yar son of Wali Muhammad.
(ii) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia). B.(i) Muhammad Yar son of Wali Muhammad.Mian Ahmad son of Amir.
(iii) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia). B.(i) Muhammad Yar son of Wali Muhammad.Mian Ahmad son of Amir.Tahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).
A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia). B.(i) Muhammad Yar son of Wali Muhammad.Mian Ahmad son of Amir.Tahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).C.(i) Muhammad Yar son of Wali Muhammad.
(ii) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia). B.(i) Muhammad Yar son of Wali Muhammad.Mian Ahmad son of Amir.Tahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).C.(i) Muhammad Yar son of Wali Muhammad. Muhammad Nawaz son of Muhammad Bakhsh.
(iii) A.(i)Muhammad Yar son of Wali Muhammad. Yara alias Allah Yar son of Shahu. Zafar alias Zafar Abbas son of RahmaTahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).Barkhurdar alias Barkha son of Muhammad (in absentia). B.(i) Muhammad Yar son of Wali Muhammad.Mian Ahmad son of Amir.Tahir Ahmad alias Tahiri son of Muhammad Yar (in absentia).C.(i) Muhammad Yar son of Wali Muhammad. Muhammad Nawaz son of Muhammad Bakhsh.Ahmad son of Muhammad
(v) Muhammad Hayat alias Fauji son of Khan (in absentia).
5. The aforesaid convicts who faced and defended the trial in person have preferred Criminal Appeal No,168 of 1993 being disposed of through this judgment.
6. However, the proclaimed offenders namely Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and Muhammad Hayat alias Fauji have neither appeared before the trial Court in accordance with law nor preferred the appeal(s).
7. The facts of the prosecution case, giving rise to this appeal, are contained in F.I.R. Exh.P.K.
Recorded by Younas Ali, S.-I. P.W.17 at Police Station Rabwah, District Jhang on 6-7-1991 at 10-15 a.m., at the instance of Liaquat Ali complainant P.W.3 son of Haji Muhammad Sarfraz deceased and real brother of Musarrat Abbas deceased. According to Liaquat Ali complainant P.W.3 he was resident of village Walla Police Station Barana and was a Zamindar by profession. They had enmity with Muhammad Yar convict son of Wali Muhammad due to murders. The cases were pending in the Court. On that day (6-7-1991) he (Liaquat Ali complainant P.W.3), Sher Muhammad P.W.4 son of Laal, Khizar Hayat P.W. Son of Ch. Sultan and Muhammad Khalid P.W. Son of 'Iaji Muhammad Hayat (both given up) were in Car No,LEO-897 while his father Haji Muhammad Sarfraz alongwith his real brother Musarrat Abbas deceased, Khizar Hayat deceased son of Wali Muhammad and Ahmad Ali Machhi deceased was in Car No,SLC 4141 being driven by Zahoor Ahmad deceased. They were coming back after attending the Court of the Additional Sessions Judge, Chiniot. Car No, SLC 4141 was ahead of his Car No,LEO-897. They reached Adda Nalka in front of Mohallah Alaf, Rabwah at 9- 30 a.m., when a white coloured Toyota Corolla car crossed his car and reached Car No,SLC 4141. The third car crossed Car No,SLC 4141 from which a burst was fired at Zahoor Ahmad driver (deceased) who lost his eye and could not control the car which went towards the left Kacha side of the road and stopped. From the white coloured car which was without number emerged the convicts namely Muhammad Yar son of Wali Muhammad, Tahir Ahmad alias Tahiri proclaimed offender, Barkhurdar alias Barkha proclaimed offender, Zafar son of Rahma each armed with klashnikov and Yara son of Shahu armed with a mauser. They went running towards the car of his father Haji Muhammad Sarfraz. Muhammad Yar convict fired a burst which hit his father Haji Muhammad Sarfraz on the backside of his head. Tahir Ahmad alias Tahiri proclaimed offender fired at his brother Musarrat Abbas on the back of his head. Zafar convict-proclaimed offender fired a burst which hit the right side of abdomen of Khizar Hayat deceased sitting on the back seat on the right side of the car. Barkhurdar alias Barkha (proclaimed offender-convict) fired a burst hitting Zahoor Ahmad deceased on the left side of his head. Yara son of Shahu fired from his mauser which hit Ahmad Ali Machhi who was sitting on the back seat which hit his neck. Thereafter, the aforesaid convicts started indiscriminate firing on all sides of car in which his father and others were sitting.
His father Haji Muhammad Sarfraz, his brother Musarrat Abbas, Khizar Hayat, Zahoor Ahmad and Ahmad Ali Machhi expired there and then and the car was badly damaged. The firing attracted many persons who could not interfere due to fear. The licensed gun of his father Haji Muhammad Sarfraz was picked by Tahir Ahmad alias Tahiri (convict). Thereafter, all the aforesaid convicts (assailants) effected the firing in the air, sat in their car and raced towards Sargodha Road.
According to Liaquat Ali complainant P.W.3 he left Sher Muhammad P.W.4 as well as both the given up P. Ws. Namely Muhammad Khalid and Khizar Hayat with the dead bodies and came to the police station who prayed for taking the legal action.
8. From the Police Station Rabwah, Younas Ali, S.-I. Investigating Officer (P.W.17) alongwith the police party immediately reached the place of occurrence which is at a distance of one kilometre from the said police station. He took into his possession the five dead bodies of Haji Muhammad Sarfraz, Musarrat Abbas, Khizar Hayat, Ahmad Ali Machhi and Zahoor Ahmad. He prepared the respective injury statement and inquest report pertaining to each of the deceased and sent the dead bodies to mortuary in Civil Hospital, Lalian under the escort of Khan Muhammad, Constable P.W.6. He made the spot inspection and prepared the spot inspection note. He prepared rough site plan Exh.P.Z. He took into possession 98 crime empties of klashnikov and two empties of pistol vide memo. Exh.P.P. Attested by Amir Ali P.W.10 and Manzoor Ali P.W. (given up). He sealed the empties into a separate parcel. He took into possession blood-stained five pieces of mat from beneath the respective seat of the deceased persons vide memo. Exh.P.Q. To Exh.P.U. He took into possession Car No,SLC 4141 vide memo. Exh.P.V. He got prepared 13 photographs P.23/1-13 from Ahmad Zaman Tanveer, Photographer P.W.16 and took the same into his possession vide Exh.P.Y. Last worn clothes of the deceased persons were produced before him by Khan Muhammad, Constable P.W.6 after the post-mortem examination which were taken into possession vide Exh.P.L. He handed over the sealed parcels to Faqir Hussain, Moharrir/Head Constable P.W.7.
9. He recorded the statements of the other eye-witnesses on 6-7-1991 who supported the complainant. He recorded the statement of Malik Muzaffar Abbas P.W.13 under section 161 of the Code of Criminal Procedure who stated before him on 6-7-1991 that he was a supervisor in Fauji Foundation Sugar Mills, Circle Lalian, that Ahmad accused son of Amir was a contractor of sugarcane, that on 5-7-1991 he had gone to the house of Ahmad accused when he was told that Ahmad had gone to the house of Zahoor Ahmad Lali, Advocate (accused since discharged) whereupon he went to the house of the said Advocate. In the "Baithak" of Zahoor Ahmad Lali, Advocate were sitting Ahmad Sher accused (since discharged) son of Ahmad Hayat, Manzoor Hussain accused (since acquitted) and Ahmad convict son of Amir. In the meanwhile Muhammad Yar convict also arrived. They started talking. Muhammad Yar convict asked from Zahoor Ahmad Lali, Advocate about him (Malik Muzaffar Abbas P.W.) when the said Advocate told him that he had arrived to meet Ahmad convict and that was not objectionable matter. Thereafter, Zahoor Ahmad Lali asked about the programme for the murder of Sarfraz Lali deceased and warned them that if Sarfraz Lali would not be murdered, none of them should feel secure. On that Muhammad Yar, Ahmad Sher and Manzoor Hussain intimated him about different programmes made by them.
Thereafter, Zahoor Ahmad Lali, Advocate told the other persons that Sarfraz Lali had to go to the Court of Additional Sessions Judge on 6-7-1991 unarmed and they chalked out the programme to murder him on 6-7-1991. The tea was served and thereafter, the aforesaid persons left them. He continued that he went to the house of Haji Muhammad Sarfraz Lali in Mauza Walla to inform him about the programme chalked out against him unfortunately he had gone outside. On the next day he went to Chiniot for the aforesaid purpose but Haji Muhammad Sarfraz Lali had left the Court after attending the same and later on he came to know at 10-25 a.m. About the murder of Haji Muhammad Sarfraz Lali, Musarrat Abbas and three other persons within the area of Police Station Rabwah. According to him the aforesaid five persons were murdered with the abetment of Zahoor Ahmad Lali, Advocate, Ahmad Sher (both discharged accused) as well as Manzoor Hussain (acquitted accused) and Ahmad (convict). The statement of Ahmad Yar P.W.11 was recorded by the Investigating Officer on 7-7-1991 when he stated that he carried on the business of sale and purchase of cattle alongwith Abdul Ghani. He was on business terms with Ahmad Sher Bhatti (acquitted accused) son of Sikandar Khan. On 5-7-1991 he went to Ahmad Sher Bhatti (acquitted accused) alongwith Abdul Ghani in the evening and due to the advent of night stayed with him. At 8-00 p.m. Muhammad Yar convict, Barkhurdar alias Barkha proclaimed offender-convict, Muhammad Nawaz Bhatti convict alongwith two other persons arrived in one car. Muhammad Yar acquitted accused, Ahmad convict son of Muhammad, Muhammad Hayat alias Fauji (proclaimed offender-convict), Khizar Hayat (acquitted accused) son of Rahma arrived there in another car.
Ahmad Sher Bhatti was present in his house who was called by Muhammad Nawaz convict. At that time Muhammad Yar convict addressed Ahmad Sher Bhatti acquitted accused) that the time had arrived to murder Haji Muhammad Sarfraz and others who had given shelter to the persons who had murdered his brother and nephew and that Haji Muhammad Sarfraz and others would be murdered on the next day. They demanded for weapons as promised earlier. Thereafter, Ahmad Sher Bhatti went to his house and brought one mauser, one pupish gun, one klashnikov and one bag wherein perhaps were the cartridges from his house and handed over to Muhammad Yar and others. Thereafter, Muhammad Nawaz and Ahmad Yar addressed Muhammad Yar and others that after murdering their enemies what they would do about their enemies? Whereupon, they were intimated that thereafter, was the turn of their enemies. The persons left in both the cars.
Muhammad Nawaz Bhatti convict and Ahmad Sher went to their house. Much of the night had passed. Earlier in the morning they went to Haji Muhammad Sarfraz in Mauza Walla to inform about the conspiracy hatched against him but they had gone to Chiniot. Thereafter they came to know in Lalian that Haji Muhammad Sarfraz, Musarrat Abbas and their three companions had been murdered in Rabwah. Shamma P.W.12 was examined on 9-7-1991 by the Investigatmg Officer under section 161 of the Code of Criminal Procedure who deposed before him that on the night falling between 5/6-7-1991 he was watering his land in Mauza Khai at 3-00 a.m. When he saw the light of a car. He was having a lantern with him. He went near the car and saw that Muhammad Yar son of Wali and Barkha son of Muhammad each armed with klashnikov alighted from the car. Three persons remained sitting whom he could not identify due to darkness. Muhammad Yar and Barkha went to the house of Manzoor after meeting him. He started his work of watering land. After half an hour Muhammad Yar, Barkha and Manzoor arrived back. Muhammad Yar told Manzoor that on the next day was the date of hearing when he must arrive as the work would be done. Thereafter they went away.
10. Dr. Muhammad Sharif, Medical Officer, Rural Health Centre, Lalian, District Jhang P.W.1 conducted the post-mortem examination on the respective dead bodies of Haji Muhammad Sarfraz, Musarrat Abbas, Zahoor Ahmad, Khizar Hayat and Ahmad Ali Machhi on 6-7-1991. He found seventeen injuries on the person of Musarrat Abbas deceased, twenty-two injuries on the person of Khizar Hayat deceased, nineteen injuries on the person of Zahoor Ahmad deceased, eight injuries on the person of Ahmad Ali Machhi deceased and seventeen injuries on the person of Haji Muhammad Sarfraz deceased. According to him the cause of death was internal haemorrhage and other injuries on each dead body. He issued respective post-mortem reports Exh.P.A., Exh.P.E., Exh.P.F., Exh.P.G. And Exh.P.H. In respect of the aforesaid deceased persons. Mumtaz Hussain P.W.5 identified the dead body of his father Khizar Hayat at the time of post-mortem examination. Sher Muhammad P.W.4 identified the dead bodies of Haji Muhammad Sarfraz, Musarrat Abbas, Zahoor Ahmad and Ahmad Ali Machhi.
11. Tahir Ahmad alias Tahiri (convict-proclaimed offender) was arrested on 2-9-1991 while he was sleeping on a Charpai. The klashnikov P.17 and 15 live bullets P.18/1-15 were taken into possession by Younas Ali, S.-I. Vide memo. Exh.P.N. Attested by Muhammad Inayat Ullah P.W.9. P.17 and P.18/1-15 were sealed into a parcel and handed over to Muhammad Sharif, Moharrir/Head Constable P.W.14.
Ahmad Sher (acquitted accused) son of Sikandar was also arrested while sleeping when pupish gun P.19 alongwith rounds P.20/1-18 were taken into possession vide memo. Exh.P.O. Attested by Muhammad Inayat Ullah P.W.9. Physical remand of Tahir Ahmad alias Tahiri (convict-proclaimed offender) was obtained who while under police arrest led to the recovery of rifle P.15 with live cartridges P.16/1-3 from the roof of a mosque situated in graveyard within the area of Mauza Dawar which was taken into possession vide memo. Exh.P.M. Attested by Falaksher P.W.B.
12. The sealed parcels were handed over to Khan Muhammad P.W.6 who delivered the same in the office of the Chemical Examiner and the Fire-Arms Expert.
13. On 17-64992 Muhammad Rasheed, S.-I. P.W.15 arrested Muhammad Nawaz convict. Abid Hussain Shah Sherazi, Draftsman P.W.2 prepared site plan Exh.P.J. And Exh.P.J./1 on the pointedness of the P.Ws. On which the notes and drawings with black ink are in his hand which have been signed by him and the notes with red ink are in the hand of Younas Ali, S.-I. P.W.17 signed by him.
14. Muhammad Yar accused was employed in Allied Bank, Circle Office, Faisalabad who took up the plea of alibi and defence that he was present in his office on 6-7-1991 at 9-00 a.m. While the occurrence took place at a considerable distance of 40 kilometres at Rabwah at 9-30 a.m. In this regard Younas Ali, S.-I. P.W.17 visited the Circle Office, Allied Bank, Faisalabad on 14-10-1991 and inspected the Attendance Register. He did not give weight to the said plea of alibi. After completing the investigation he submitted the challan.
15. Tahir Ahmad alias Tahiri accused was arrested on 2-9-1991 who, however, absconded afterwards from a hospital.
16. Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and Muhammad Hayat alias Fauji became the fugitive of law who did not appear in spite of the proclamations. The trial was started by the trial Court. Syed Iftikhar Ali. Advocate was appointed to defend Tahir Ahmad alias Tahiri. Miss Tahira Kaleem, Advocate was appointed to defend Barkhurdar alias Barkha. Mr. Muhammad Basharat Ullah Khan, Advocate was appointed to defend Muhammad Hayat alias Fauji proclaimed offenders.
17. The trial Court charged the accused persons under section 302/34, Pakistan Penal Code on five counts, 302/109, Pakistan Penal Code and 120-B, Pakistan Penal Code.
18. At the trial the aforesaid P.Ws. Stood in the witness-box and supported the prosecution case. In his cross-examination Dr. Muhammad Sharif, Medical Officer P.W. Stated that all injuries except 4 on the person of Haji Muhammad Sarfraz deceased had been caused from the front side. He also deposed about the location of the injuries on the persons of the other deceased. Abid Hussain Sherazi, Draftsman P.W.2 stated that the car of the P.Ws. Was not mentioned in the site plans prepared by him. He stated that he did not mention the names of all the accused persons except Tahiri accused. Liaquat Ali complainant stated that one Khan was murdered and false case of his murder was registered against his father Haji Muhammad Sarfraz, Musarrat Abbas and others which were undertrial. He also mentioned the close relations of the accused persons. He denied the suggestion about his absence from the spot. Sher Muhammad P.W.4 admitted about the registration of some cases against him from 1954 to 1968 but claimed to be a Councillor afterwards and stated that he contested the election of Chairmanship of Union Council against Liaquat Ali complainant. Younas Ali, S.-I./Investigating Officer deposed in detail the facts of the investigation.
The Assistant 'District Attorney tendered in evidence report Exh.P.A./1 of the Chemical Examiner and report Exh.P.B./1 of the Serologist, according to which the rubber mat and rubber dust were respectively stained with blood and human blood. He also produced report Exh.P.C./1 of the Technical Services, Crime Branch Punjab, Lahore making out the positive observation about the use of the crime empties from the klashnikov.
19. When examined under section 342 of the Code of Criminal Procedure all the accused persons tried by the trial Court stated about their non-participation in the occurrence and claimed to lie innocent. All the accused tried by the trial Court did not appear on oath in their respective defence.
Muhammad Yar convict-appellant produced the defence evidence.
20. Mr. Atta Ullah Niazi retired D.S.P. D.W.1 stated about the investigation of one murder case during the year 1985 against Haji Muhammad Sarfraz deceased of this case. Aslam Raza, Officer Grade-I, Allied Bank, D.W.2 stated that on 6-7-1991 Muhammad Yar accused remained in the Bank Circle Office, Faisalabad from 9-00 a.m. To .1-00 p.m. As he was employed there. He referred to page 60 of the Attendance Register and produced a photostat of the same as Exh.D.P. He stated that the Attendance Register was signed by the Assistant Vice-President. In rebuttal he denied the suggestion that the Register was not properly being kept. He added that after page 60 there was no entry in the Register as a new Register was maintained. Muhammad Shard, A.S.-I., Police Station, Lalian D.W.3 produced photostats Exh.D.Q. Pertaining to the entries in the Register and Exh.D.R.
Pertaining to the cases registered against Shera alias Sher Muhammad son of Lala. In his cross- examination he admitted that the cases against Shera alias Sher Muhammad were registered from 23-4-1954 to 23-6-1968. Muhammad Ismail, Constable D.W.4 proved Exh.D.S. Copy of wireless message sent immediately after the occurrence containing the facts of arrival of two cars, the occurrence and the departure of one car to Sargodha.
21. After hearing the parties learned trial Court convicted the' aforesaid appellants and the three aforesaid proclaimed offenders as narrated above while Manzoor Ahmad son of Ghulam Hussain, Ahmad Sher son of Sikandar Khan, Muhammad Hayat son of Rahma and Khizar Hayat son of Rahma were acquitted.
22. Feeling aggrieved the aforesaid six appellants who appeared during the trial and were convicted have preferred this appeal which has been resisted by the State as well as by the complainant. We have heard the learned counsel for the parties as well as the learned State Counsel and gone through the record before us.
23. To simplify and make easy this lengthy matter it would be proper to express that the prosecution has projected and led the evidence thereof to establish the following factual and legal aspects to connect the appellants and the proclaimed offenders-convicts with the occurrence:--
(a) Evidence with regard to the actual occurrence wherein Muhammad Yar son of Wali Muhammad, Zafar son of Rahma, Yara son of Shahu, Tahir Ahmad alias Tahiri (proclaimed offender) son of Muhammad Yar and Barkhurdar alias Barkha (proclaimed offender) son of Muhammad Yar participated as the assailants.
(b) Evidence of abetment of the murder under section 302/109, Pakistan Penal Code deposed by Malik Muzaffar Abbas P.W.13 against discharged accused namely Zahoor Ahmad Lali, Advocate and Ahmad Sher son of Muhammad Hayat as well as against acquitted accused Manzoor Hussain son of Ghulam Hussain and appellants Mian Ahmad son of Mian Amir and Muhammad Yar son of Wali Muhammad.
(c) Evidence of criminal conspiracy falling under section 120-B, Pakistan Penal Code through the statements of Ahmad Yar P.W.11 and Shamma P.W.12 against Muhammad Yar, Muhammad Nawaz, Ahmad son of Muhammad appellants, Muhammad Hayat alias Fauji (convict-proclaimed offender) as well as Khizar Hayat and Ahmad Sher (acquitted accused) and the statement of Shamma P.W.12 against Muhammad Yar appellant, Barkhurdar alias Barkha (proclaimed offender- convict) and Manzoor Ahmad acquitted accused.
24. First of all the actual occurrence is analysed and dissected at this appellate stage. The prosecution evidence in this regard rests on the following ingredients:--
(1) Ocular evidence.
(2) Medical Evidence.
(3) Motive.
(4) Recovery of crime empties P.21/1-98 of klashnikov and crime empties P.22/1-22 of mauser taken into possession vide memo. Exh.P.P., klashnikov P.17 and bullets P.18/1-15 recovered from Tahir Ahmad alias Tahiri proclaimed offender at the time of his arrest and rifle P.15 alongwith crime empties P.16/1-3 said to have been recovered at the instance of Tahir Ahmad alias Tahiri proclaimed offender while under police arrest vide memo. Exh.P.M. Read with report Exh.P.C./1 of the Technical Services Crime Branch, Punjab, Lahore.
(5) Taking into possession of blood-stained mats vide memo. Exh.P.Q., Exh.P.R., Exh.P.S., Exh.P.T. And Exh.P.U. As well as damaged car No,SLC 4141 vide memo. Exh.P.V. Wherein the deceased persons were travelling and were murdered.
(6) Photographs P.23/1-13 taken into possession vide memo. Exh.P.Y.
25. First of all we take up the ocular evidence alongwith the medical evidence. Since the trial Court has placed the reliance upon the same, legally it is for the learned Advocates for the appellants to make doubtful the prosecution case or to establish that the same is false. Learned counsel for the appellants argued that the following facts are enough to make out that both Liaquat Ali complainant P.W.3 and Sher Muhammad P.W.4 were not present at the spot and that their testimonies do not merit to be relied upon:--
(i) Only the inmates of one car bearing No,SLC 4141 wherein the deceased persons were sitting was hit while neither Car No,LEO-897 was damaged nor its inmates namely Liaqat Ali complainant P.W.3, Sher Muhammad P.W.4, Khizar Hayat and Muhammad Khalid P.Ws. (both given up) were injured and that even this car was also not taken into possession.
(ii) Both Liaquat Ali P.W.3 and Sher Muhammad had no business to go to Chiniot and to return back so as to reach at the spot as they were not accused of the murder case.
(iii) The copy Exh.D.S. Of the log book of wireless Post Saddar, Chiniot, District Jhang. Two cars arrived from Chiniot to Rabwah when on one car the firing was effected through klashnikov from Toyota Corolla white coloured car whereby five persons were murdered and that the car was going towards Sargodha which may be checked. He maintained that only two cars were there and thus the presence of Car No,LE0-897 alongwith its inmates i,e, the eye-witnesses stood eclipsed.
(iv) No independent person from the public has been produced to establish the prosecution case.
(v) None of the eye-witnesses namely Liaquat Ali P.W.3 and Sher Muhammad P. W .4 as well as both the given up P.Ws. Attested any memo. Of recovery after the occurrence.
(vi) In the rough site plan Exh.P.Z. Prepared by the Investigating Officer just after the occurrence at the time of the spot inspection and in the site plan -Exh.P.J. Prepared on 14-7-1991 by the Draftsman neither the names of the P.Ws., the assailants/convicts nor the names of the deceased persons are incorporated and indicated. Further, the presence of both the cars of the complainant party and the car of the assailants have not been shown therein.
(vii) The criminal murder case against Haji Muhammad Sarfraz deceased, his son Musarrat Abbas deceased and others was transferred from Chiniot to Jhang by the Lahore High Court, Lahore before 6-7-1991 and in this regard he referred to copy Exh.D.O. Of order, dated 27-6-1991 passed by the Additional Sessions Judge, Chiniot and copy Exh.D.O./1 of the order passed by the Sessions Judge, Jhang on 6-7-1991. According to him in order, dated 27-6-1991 (Exh.D.O.) learned counsel for the accused persons of that case which included Haji Muhammad Sarfraz deceased and Musarrat Abbas deceased undertook to intimate them and some of the accused persons appeared on 6-7- 1991 (on the date of occurrence) before the Sessions Judge, Jhang. He added that there was no occasion for the deceased persons to go to the Court of the Additional Sessions Judge, Chiniot.
26. The aforesaid points i-iii raised in defence by the learned counsel for the appellants need not be given the weight as it has rightly been canvassed by the learned State Counsel as well as by the learned counsel for the complainant that it is a case of long-standing enmity. After firing upon five persons who died at the spot within the car and were not even allowed to emerge from the same, it was the natural conduct of the assailants to leave the place immediately. The car of the assailants had crossed the car wherein the eye-witnesses were sitting and after the occurrence of the instant heinous nature particularly when Haji Muhammad Sarfraz and Musarrat Abbas accused of the murder case had lost their lives there was no occasion for the assailants to fire at the eye- witnesses travelling in Car No,LEO-897. It is a matter of common observation and knowledge in our Province that in murder cases wherein the parties have longstanding enmity the relatives and other persons accompany both the parties for protection and safeguard. Thus, it matters nothing if P.Ws.3 and 4 were not facing the trial. No effort has been made to get requisitioned the record from the office of the Registration Officer, Chiniot situated in front of the Court of the Additional Sessions Judge, Chiniot. It would have been better for the defence to have requisitioned the record in the matter and in case of non-availability of the record in the matter Sher Muhammad P.W.4 could easily be disbelieved. The issuance of wireless message contained in copy Exh.D.S. Is also of no help to the appellants to make us hold that both the eye-witnesses were not present. This is a message to check the car which had left the place of occurrence towards Sargodha. It was not issued to project that there were only two cars at the spot, one damaged by the assailants who committed the murder of the five inmates and the other wherein the assailants were sitting and had gone to Sargodha. There was no need to mention the third car. With the material on record in the matter the presence of Liaquat Ali and Sher Muhammad eye-witnesses (P.Ws.3 and 4) stands established and the aforesaid objections raised in the matter have failed to muster the desired effect.
27. So far as the argument of the learned counsel for the appellants that the people from the vicinity have not figured in the witness-box to support the prosecution case, we have to express that during these days such an argument is devoid of legal force. The witnesses in these days generally refrain to join the investigation and to appear as witnesses to give evidence against the offenders by running the risk of their lives at the hands of the accused persons. It is a general reluctance that the people do not want to appear as witnesses. It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted with many on-lookers around while the assassins are allowed to operate without any hindrance who succeed in making good the escape from the scene without impunity. It is one aspect of the matter. We are in full agreement with the learned counsel for the complainant who laid the emphasis that the occurrence is not of that type that in any Mohallah or in any village the same took place. It was on the road going from Chiniot to Sargodha that the car of the deceased persons was stopped on the Katc'.a of the road and within few minutes the occurrence finished. The presence of any person at the spot at the time of occurrence cannot be expected. Due to the gruesome murder eve.: the persons near the spot must have run away which should be the natural conduct and, thus, only Liaquat Ali and Sher Muhammad P. Ws. 3 and 4 have rightly been held to be the natural witnesses who saw the occurrence. The non-appearance of any person from the vicinity in the special circumstances of this gruesome occurrence is not at all fatal to the prosecution case.
28. The fact that none of the eye-witnesses has attested any memo. Of recovery at the initial time of investigation is of no legal help to the appellants and has not damaged the prosecution case. It was a gruesome and sensational occurrence wherein five persons lost their lives. The condition of Liaquat Ali complainant P.W.3 who is closely related to two deceased persons can well be imagined. Sher Muhammad accompanied the dead bodies to the mortuary who identified the dead bodies and after getting recorded his statement before the police he left to the Rural Health Centre, Lalian. This aspect of the matter has failed to shatter the prosecution case.
29. Now we take up rough site plan Exh.P.Z. And other site plan Exh.P.J. Prepared by Abid Hussain Shah Sherazi, Draftsman P.W.2. Relying on Mehar Ali and others v. The State 1968 SCM R 161, it was argued by the learned counsel for the appellants that the omission to indicate in site plan the position of the eye-witnesses at the time of occurrence would reflect on the possibility of the witnesses not being present at all at the spot at the time of occurrence. We have all the respect of the observations and the aforesaid findings. However, we have to express that afterwards different view has been expressed in the ruling published as Mst. Shamim Akhtar v. Fayyaz Akhtar and others PLD 1992 SC 211. It has been held by the Supreme Court that the site plan of occurrence is I not a substantive piece of evidence. It has been commanded in Ali Sher v. The State and 3 others PLD 1980 SC 317 that the omission to indicate the position of the eye-witnesses in the site plan would not lead to the inference of such witnesses being not present particularly when the presence of such witnesses at the spot at the time of occurrence is natural in circumstances of case. This rulmg was relied upon in the ruling published as Nauroz v. The State 1986 PCr.LJ 3019 (Quetta), wherein it was held that the mere fact that the presence of the witnesses is not mentioned in the site plan and the places where they were alleged to be present were not shown in the site plan would not invalidate their testimony and that this can be at the most an omission on the part of the Investigating Officer. At this stage I am tempted to express that with the passage of time enormous laxity stands inculcated in the disciplined force of police by its members and it is a clear instance of that nature. It is a pity that it is not being realized by the Police Officers that they have to perform an important duty". In view of the wealth of the aforesaid case-law the fate of a case cannot be handed over to an Investigating Officer or to a Draftsman who through intentional negligence and laxity may proceed in a recalcitrant manner and the prosecution case is shattered thereof. Such a working can obviously be deprecated being violative of law and against legal ethics as well as Islamic Injunctions. The F.I.R. Was promptly lodged and in case the witnesses, the accused and the cars have not been indicated in the site plans that is of no adverse effect to the prosecution case.
We, therefore, discard this assertion adopted by the learned counsel for the appellants.
30. Last objection is about the transfer of the case from the Court of the Additional Sessions Judge, Chariot to the Court of the Sessions Judge, Jhang by the High Court. It has been argued by the learned counsel for the appellants that due to the undertaking given by the learned counsel for the deceased persons in the order, dated 27-6-1991 (copy Exh.D.O.) both Haji Muhammad Sarfraz and Musarrat Abbas accused could not be expected to go to Chiniot on 6-7-1991 as they had to go to the Court of the Sessions Judge, Jhang where their co-accused namely Mumtaz Hussain son of Mahmand Khan, Nawaz and Mumtaz sons of Ghaus Muhammad appeared in the relevant case. It would be a palpable error to agree with him in view of the argument of the learned State Counsel that there is no material on the record to make out that both Haji . Muhammad Sarfraz deceased and his son Musarrat Abbas were served for 6-7-1991 for appearance before the Sessions Judge, Jhang. The undertaking given by their learned Advocate in order, dated 27-6-1991 (Exh.D.O.) is not enough in the matter to make out that they had to go to Jhang and not to Chiniot. Without their service in the matter the objection and argument adopted by the learned counsel for the appellants need not be given the weight especially when during these days the , accused persons coin different ways to effect delay in the conclusion of the trial of murder cases. In view of our long experience in the judicial field it can safely be expressed that in matters in which no work has to be done as in the instant relevant matter due to transfer of the case from Chiniot to Jhang, the matter is taken up early in the morning. Further, the Sessions cases are taken up after 11-00 a.m. This is the reason that Haji Muhammad Sarfraz and Musarrat Abbas got the information early in the morning at Chiniot and started for their home. It was the month of July, 1991. The occurrence took place at 9- 30 a.m. At a short distance from Chiniot. The matter was taken up on 6-7-1991 by the Sessions Judge in routine and due to the occurrence the co-accused had come to know about the murder of Haji Muhammad Sarfraz and his son Musarrat Abbas. As such the transfer of the other relevant case from Chiniot to Jhang in the aforesaid circumstances and with the aforesaid reasoning shall not make the prosecution case weak or non-existent qua the assailants-appellants.
31. Learned counsel for the appellants argued that Liaquat Ali P.W.3 is an interested witness being the son and brother of deceased persons namely Haji Muhammad Sarfraz and Musarrat Abbas respectively who as well as Sher Muhammad were the chance witnesses and it is not safe to rely upon their statements. They added that both P.W.3 and P.W.4 are admittedly inimical towards the appellants and it is not safe to rely upon their statements especially when many criminal cases were registered against P.W.4. On the contrary learned State Counsel and learned counsel for the complainant laid the emphasis that in the circumstances of the matter both the eye-witnesses are the natural witnesses and the only fact that the cases were registered and pending earlier between the accused persons on the one side and the eye-witnesses on the other side would not diminish the value of their statements. We do not agree with the learned counsel for the appellants.
Legally the testimony of an interested witness can sustain conviction if found free from doubt.
Independent corroboration cannot at all always be insisted upon as it may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witnesses have spoken the truth. As held supra the presence of both the P. Ws. At the spot was natural. Mere enmity due to the registration and pendency of the earlier criminal cases is not fatal. If such an argument is given the weight then in cases of the instant nature if the assailant party has to face the same fate as the deceased persons have met and the witnesses are none else than their relatives such a game can continue and every time the adverse party shall be getting the order of acquittal. We discard this argument and hold that the statements of both the eye-witnesses inspire the confidence. We would be glossing over an important aspect of the matter by expressing that the occurrence took place at 9-30 a.m. During summer season on 6-7- 1991. There is no doubt about the initial criminality and identity of the assailants-appellants. The occurrence took place on the highway. The assailants made good their escape. The registration of criminal cases (Exh.D.R.) against Sher Muhammad P.W.4 from 1954 to 1968 would not make him discreditable witness due to lapse of more than two decades when at present he is leading a different life. Hence we believe the prosecution version.
32. The medical evidence has rightly been believed by the trial Court and there is no justification to discard the same as desired by the appellants on the score that the eye-witnesses need not be believed being false. We have already believed the eye-witnesses. The assailants were in the white Toyota Corolla which crossed Car No,LEO-897 wherein the P.Ws: were sitting and from the said white Toyota Corolla burst was fired which hit the right eye of Zahoor Ahmad deceased who was driving Car No,SLC 4141 wherein the deceased persons were sitting/travelling. The car of the assailants was on the right of Car No,SLC 4141 and there is the injury No,1 on the right eye of Zahoor Ahmad driver as shown by the Medical Officer (P.W.1) in the post-mortem report Exh.P.G. The number of injuries on the person of each of the five deceased has established that the weapons narrated in the F.I.R. And seen by the eye-witnesses I were used during the occurrence. The defence has not been able to make doubtful the statement of the Medical Officer (P.W.1) who conducted the postmortem examination of the five dead bodies. The cumulative effect of the aforesaid state of affairs, analysis of evidence and discussion would be that the trial Court has rightly believed the ocular evidence and the medical evidence against the assailants.
33. At this stage learned counsel for Muhammad Yar appellant canvassed about his plea of alibi on the strength of Attendance Register showing the presence of Muhammad Yar in Circle Office, Allied Bank, Faisalabad on 6-7-1991 from 9-00 a.m. To 1-00 p.m., who produced in evidence Exh.D.P., photostat of relevant page No,60. According to him the Register was relevant and admissible under Article 49 of the Qanun-e-Shahadat, 1984 pertaining to relevancy of entry in public record made in the performance of duty. He argued that before Younas Ali, S.-I./Investigating Officer the plea of alibi was taken up rand the same was not an afterthought affair during the trial. He added that it was Saturday on 6-7-1991 and being half-working day Muhammad Yar appellant remained present from 9-00 a.m. To 1-00 p.m. We hold a different view on the basis of the reasoning adopted by the learned trial Court as well as by the learned adverse counsel and that also through the support of the statement of Aslam Rana, Officer Grade-I, Allied Bank, D.W.2 in the cross- examination. There is nothing on record to make out that as to why there was no entry on page 60 after the date of 9-7-1991 and why the new Register was maintained. It is pertinent to mention that the Register was checked by Younas Ali, S.-I. On 4-10-1991 who made the endorsement against the relevant entry pertaining to Muhammad Yar appellant. This page could be used during the remaining days of the month of July, 1991 i,e, from 10-7-1991 onwards. The aforesaid aspect is enough to make out that the Attendance Register is of no help to Muhammad Yar accused with respect to the plea of alibi agitated by him. It would not be out of place to express that it is a matter of common knowledge/observation that such type of Registers are maintained in routine and even the Officers show soft corner towards the subordinates coming late on a day. Further, the Assistant Vice-President of the Allied Bank, Circle Office, Faisalabad did not figure in the witness-box who being the competent authority was in a better position to help Muhammad Yar convict. Thus, the non-appearance of the Assistant Vice-President has made us to draw an adverse presumption against Muhammad Yar convict. The plea of alibi, as such, has not been established and has rightly been discarded by the trial Court.
' Motive:
34. The motive has rightly been given the weight by the trial Court. The canvassing made by the learned counsel for the appellants that the motive is a double-edged weapon and the chance of false accusation cannot be ruled out has failed to touch our sense of appreciation. There is long- standing enmity between the parties and it can safely be held that the aforesaid admitted position will I prove to be corroborative piece of evidence against the appellants.
35. The recovery of the crime empties and the klashnikov with bullets coupled with report Exh.P.C./1 of the Technical Services as well as the recovery of the mats supported by the reports of the Chemical Examiner and Serologist has connected the assailants with the occurrence. In this regard learned counsel for the appellants have not been able to point out any material factor to make us discard this ingredient of the prosecution case.
36. As such against the assailants namely Muhammad Yar son of Wali Muhammad, Zafar alias Zafar Abbas son of Rahma and Yara son of Shahu (appellants) as well as against Barkhurdar alias Barkha and Tahir Ahmad alias Tahiri both proclaimed offenders-convicts the prosecution has established its case who have rightly been held to be criminally liable in the matter of this gruesome occurrence wherein five persons were murdered.
Conviction under section 302/109, P.P.C.
37. In this respect we are in full agreement with learned counsel for the concerned appellants that the solitary statement of Malik Muzaffar Abbas P.W.13 is not enough to make out the alleged abetment against the convicts-appellants especially when the star person about the abetment was Zahoor Ahmad Lali, Advocate who alongwith Ahmad Sher son of Ahmad Hayat was discharged during the investigation. If the statement of Malik Muzaffar Abbas P.W.13 has not been given the weight at that initial time there is no justification to hold the attraction of section 302/109, P.P.C. Against the aforesaid concerned convicts-appellants. Further, on the same evidence only Mian Ahmad appellant son of Mian Amir has been convicted while Manzoor Ahmad son of Ghulam Hussain was acquitted after full-fledged trial. As expressed above Zahoor Ahmad Lali, Advocate and Ahmad Sher son of Ahmad Hayat who were ascribed the same role were discharged. In view of the aforesaid aspect of the matter we do not agree with the learned State Counsel who argued that Ahmad appellant son of Amir has rightly been convicted under section 302/109, Pakistan Penal Code. In view of the aforesaid reasoning we hold that the conviction recorded under section 302/109, P.P.C. Cannot be sustained and we set aside the same.
Conviction under section 120-B, Pakistan Penal Code.
38. About the conviction recorded under section 120-B, Pakistan Penal Code that a conspiracy was hatched there are the statements of Ahmad Yar P.W.11 and Shamma P.W.12. Learned counsel for the concerned convicts has rightly pointed out that Ahmad Yar P.W.11 claimed to be present at the relevant time at the relevant place alongwith Abdul Ghani P.W. Who was examined by the police and was given up. Thus, Ahmad Yar P.W.13 has not been corroborated on the aforesaid fact by any person including Abdul Ghani. His solitary statement in the matter has failed to muster the desired effect. The statement of Ahmad Yar was also recorded on 7-7-1991 and not on 6-7-1991 and keeping in view the nature of the aforesaid fact it can safely be expressed that he was introduced afterwards and it was also the reason that Abdul Ghani did not support him as he was not produced. The statement of Shamma P.W.12 in the matter is also of the same nature as the same has not been corroborated by any other prosecution witness. As to what type of conspiracy was hatched by Muhammad Yar, Barkhurdar alias Barkha and Manzoor has not been narrated by him.
He has not named any of the deceased persons in his statement recorded by the police and by the Court. The only fact that Shamma P.W. Stated that the accused persons talked to each other about the date of hearing on the next day is not enough to implicate them towards the charge under section 120-B, Pakistan Penal Code. Further on the same evidence some accused have been acquitted of the charge under section 120-B, Pakistan Penal Code which aspect of the matter has also made us to disbelieve this part of the prosecution case. We, therefore, hold that the prosecution has failed to establish the charge under section 120-B, Palcistan Penal Code and set aside the conviction to that extent.
39. At this stage we would express that Shamma P.W. Did not hear anything about the deceased persons and that is enough to discard his statement as expressed above. However, even though Allah Yar heard about the fact that the conspiracy was hatched in his presence and Malik Muzaffar Abbas P.W.13 heard about the abetment, both of them did not inform Haji Muhammad Sarfraz deceased during his lifetime. They have given the respective explanation that they could not inform as Haji Muhammad Sarfraz had gone to Chiniot and thereafter, they had started from Chiniot. An important aspect to be considered is that Allah Yar P.W.11, Shaniman P.W.12 and Muzaffar Abbas P.W.13 did not inform Liaquat Ali complainant even after the occurrence and before the recording of their statements. They did not inform the Investigating Officer in this regard before recording of their respective statement. We have made a perusal of the police file which is silent in this regard. This missing link in the aforesaid alleged factums of alleged attraction of section 302/109 and section 120-B, Pakistan Penal Code has made us to hold that the same were coined and cooked afterwards and is an overdoing on the part of the Police Officer. The mention of abetment in F.I.R. Exh.P.K. Need not be given the weight as Zahoor Ahmad Lali, Advocate was got discharged during the investigation. In view of the aforesaid reasoning as well, the conviction of the appellants to that extent is liable to be set aside and we pass an .
40. For what has been said above, we dismiss this appeal to the extent of appellants namely Muhammad Yar son of Wali Muhammad, Yara alias Allah Yar son of Shahu and Zafar alias Zafar Abbas son of Rahma. Keeping in view the number of assailants, who were five, we hold that the assailant appellants are liable under section 302/149, Pakistan Penal Code even though charge under section 148/149, Pakistan Penal Code has not been framed by the trial Court. In view of gruesome occurrence wherein five persons were intentionally murdered by the assailants, we hold that the quantum of punishment against them is justified.
41. However, to the extent of Ahmad son of Muhammad, Mian Ahmad son of Mian Amir and Muhammad Nawaz son of Muhammad Bakhsh we accept this appeal, set aside the impugned judgment and acquit them. Muhammad Nawaz Appellant is present today on bail whose bail bond is cancelled and surety, discharged. The appellants namely Ahmad son of Muhammad and Mian Ahmad son of Mian Amir shall be set at liberty forthwith, if not required in any other case.