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, Yar alias Allah Yar son of Shahu, Zafar alias Zafar Abbas son of Rahma, 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 Bakhsh, Caste Bhatti, resident of Peer Ranjha, Tehsil Chiniot, District Jhang; three proclaimed offenders- convicts namely Tahir Ahmad alias Tahiri so of Muhammad Yar, Barkhurdar alias Barkha son of Muhammad and Muhammad Hayat alias Fauji, all Rahuka Lali by case, 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 case 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 oppression of Terrorists 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 sections 302/34/109/ 120-B Pakistan Penal Code.
3. As expressed above. Manzoor Ahmad son of Ghulam Hussain, Ahmad Slier 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 Yayat alias Fauji were convicted in absentia alongwith the appellants.
4. Following sentences were awarded to the convicts:- A (i) Muhammad Yar son Death penalty each and fine of of Wali Muhammad. Rs. 1,00,000/- each or in
(ii) Yar alias Allah Yar son of Shahu default of its payment lo undergo R.1, for a period, of
(iii) Zafar alias Zafar Abbas son of Rahma ' to years each under section 302/34 PPC. The fine - if recovered shall be given to the
(iv) Tahir Ahmad alias Tahiri respective heirs of the son of Muhammad Yar (in respective deceased (on each absentia). Five counts).
(V) Barkhurdar alias Barkha son of Muhammad (in absentia). B. (ii Muhammad Yar son of Life imprisonment each under Wali Muhammad. Section 302/109 Pakistan Penal
(ii) . Mian Ahmad son of Amir Code (on each five counts).
(iii) Tahir Ahmad alias Tahiri , son of Muhammad Yar (in absentia). C. (i) Muhammad Yar son of Life imprisonment each under Wali Muhammad. Section 120-B Pakistan Penal
(ii) Muhammad Nawaz son of Code (on each five counts).
Muhammad Bakhsh. (iii) Ahmad son of Muhammad. Barkhurdar alias Barkha son of Muhammad (in absentia). #tbs (v) #to #tbs (iv) #to 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. 168/93 being disposed of through this judgment.
6. However, the proclaimed offenders. Namely Tahir Ahmad alias Tahiti. 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 FIR Exh. PK recorded by Younas Ali SI PW-17 at Police Station Rahwali, District Jhang on 6.7.1991 at 10.15 a.m. At the instance of Liaquat Ali complainant PW-3 son of Haji Muhammad Sarfraz deceased and real brother of Musarrat Abbas deceased. According to Liaquat Ali complainant PW-3 he was resident of village Waila Police Station Barada and was a Zimindar 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 PW-3), Sher Muhammad PW-4 son of Laal, Khizar Hayat PW son of Ch, Sultan and Muhammad Khalid PW son of Haji Muhammad Hayat (both given up) were in car No. LEO/897 while his lather 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 Wab Muhammad, Tahir Ahmad alias Tahiri proclaimed offender, Barkhurdar alias Barkha proclaimed offender, Zafar son of Rahma each armed with kalashinkove and Yara son of Shahu armed with a mouser. 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 mouser which hit Ahmad Ali Machhi who was sitting on the back seat which hit his neck. Thereafter the aforesaid convicts stated 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 PW-3 he left Sher Muhammad PW-4 as well as both the given up PWs 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 Rabivah Younas Ali SI Investigating Officer (PW-17) alongwith the police party immediately reached the place of occurrence which is at a distance of one kilometer 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 PW-6. He made the spot inspection and prepared the spot Inspection Note. He prepared rough site-plan Exh.
PZ. He took into possession 98 crime empties of kalashinkove and to empties of pistol vide memo Exh. PP attested by Amir Ali PW-10 and Manzoor Ali PW (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. PQ to Exh. PU. He took into possession car No. SLC 4141 vide memo. Exh. PV. He got prepared 13 photographs P-23/1-13 from Ahmad Zaman Tanveer Photographer PW-16 and took the same into his possession vide Exh.PY. Last worn clothes of the deceased persons were produced before him by Khan-Muhammad Constable PW-6 after the postmortem examination which were taken into possession vide Exh. PL. He handed over the sealed parcels to Faqir Hussain Moharrir/Head Constable PW- 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 PW-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 29- 3-1995. The petitioner was arrested on 28-4-1997, the identification parade has not yet held, and his application for the grant of bail has been dismissed by the learned Addl. Sessions Judge, Sialkot on 11-11-1997.
3. I have heard the learned counsel for the petitioner, the State and have also seen the record.
4. It is contended by the learned counsel for the petitioner that the petitioner is not named in the FIR, no recovery has been effected from the petitioner, even the identification parade has not been held and the acquittal of the co-accused has made it a case of further inquiry. Learned counsel appearing for the State has opposed the petition.
5. Neither incomplete nor complete challan has been submitted in the Court as yet. The petitioner was arrested on 28-4-1997 and the non-holding of identification parade coupled with the acquittal of co-accused has rendered it a case of further inquiry. In these circumstances, this petition is allowed and the petitioner is granted bail subject to his furnishing bail bond in the sum of Rs.
50,000/- with one surety in the like amount to the satisfaction of the trial Court.