' KHALIL-UR-REHMAN RAMDAY, J.---In an occurrence which had allegedly taken place on 6-9-1996 at about 1-30 p.m. Near the Jamia Masjid of village Buri Mahlam, four persons, namely, Ismail, Hatiz Amjad Masood, Iftikhar and Mst. Abida Shaheen were murdered and three other persons namely, Maroof, Shehbaz son of Fazal and Mst. Sharifan had also received fire arm injuries but they had, however survived.
2. Seven persons, namely, Bashir. Ahmad, his two brothers Muhammad Ali and Rasheed Ahmad, two sons of the said Bashir Ahmad, namely, Asghar and Amjad and two sons of the said Muhammad Ali accused, namely, Shehbaz and Imtiaz were accused by the complainant of the commission of the above noticed offences and an eighth accused namely, Ayaz son of the abovementioned Muhammad Ali accused was later added to the list, as a result of the investigation and thus a total of eight accused were tried by Sardar Mashkoor Ahmad Sindhu, the learned Presiding Judge of Special Court No,1 established at Lahore under the Anti-Terrorism Act of 1997. Through his judgment dated 19-3-1998 the said learned trial Judge acquitted all the above mentioned eight accused persons of the above noticed charges.
3. The State filed Criminal Appeal No,192 of 1998 to call in question the acquittal of the said accused persons except that of Ayaz as according to the complainant. He had not participated in the present occurrence. To the same effect and against the same persons was filed an appeal, bearing Criminal Appeal No,292 of 1998, by Maroof complainant. Both these matters are being disposed of together through this single judgment.
4. The occurrence in question, as has been mentioned above, had taken place on 6-9-1996 at 1-30 p.m. Near the Jamia Masjid of village Burj Mahlam about three miles from Police Station City Pattoki. Muhammad Maroof complainant reported this occurrence to Badar Munir S.I./S.H2O. Of Police Station Pattoki through a written application when the latter had reached the civil hospital of Pattoki where Maroof complainant and other injured persons were lying admitted and on the basis of which application a formal F.I.R. Bearing No,278 was registered at the said police station at about 3-00 p.m. The same day.
5. Narrating the occurrence and the background leading thereto Maroof complainant had mentioned that he was a resident of village Burj Mahlam of Tehsil Pattoki; that on the day of occurrence one Muhammad Fayyaz (P.W. 13) who was a close relative of the complainant went to the shop of Shahab Din at about 1-00 p.m. To fetch vegetables; that when the said Fayyaz passed from in front of the house of Imtiaz accused, the said Imtiaz accused gave abuses to the said Fayyaz P,W. And even belabored him with fist blows as a result of which Fayyaz P.W. Returned to his house and narrated this incident to his maternal uncle, namely, Ismail who was visiting and staying with them; that at about 1-30 p.m. The said Ismail (one of the deceased persons of the present case) and a brother of Fayyaz P.W. Namely, Shehbaz (an injured P.W. Of the present occurrence) went to the Dera of the elders of Imtiaz accused abovementioned and while the said Ismail and Shehbaz were talking to the father of Imtiaz accused, namely, Muhammad Ali accused and to the two brothers of the said Muhammad Ali, namely, Bashir and Rasheed accused, the complainant, who was going to the village mosque to offer Jumma prayers alongwith Iftikhar (another deceased of the present case) and Hafiz Amjad Masood (also a deceased person of the present case), saw the above mentioned three accused persons, namely, Muhammad Ali, Bashir and Rasheed running into their Dera and returning to the spot after Muhammad Ali accused, Rasheed accused and Bashir accused had armed themselves with .222 rifle and a .7mm rifle respectively and when they were also accompanied by Imtiaz accused carrying a .222 rifle, Shehbaz accused carrying a .12 bore Pump Action gun, Muhammad Asghar accused armed with a .7mm rifle and Muhammad Amjad accused armed with a carbine; that after raising Lalkaras to finish the above mentioned victims, all the above named seven accused persons fired shots with their respective fire arm weapons causing the death of Ismail, Iftikhar, Hafiz Amjad Masood and of a passer-by child, namely, Mst. Abida Shaheen and causing injuries on the persons of Maroof complainant, Shehbaz P.W. And Mst. Sharifan (given up); that thereafter the said assailants resorted to further indiscriminate firing; that when a large number of persons got attracted to the spot, all the above named accused persons ran away from the place of occurrence.
6. Ismail, Hafiz Amjad Masood and Iftikhar deceased died at the very place of occurrence while the other injured victims were rushed to the civil hospital of Pattoki out of whom Mst. Abida Shaheen also succumbed to the injuries a day after the occurrence i,e, on 7-9-1996,
7. Badar Munir (P.W. 12) reached the place of occurrence where he found blood-stained earth at the points where Hafiz Amjad Masood deceased, Ismail deceased, Iftikhar deceased and Mst.
Abida Shaheen deceased had received injuries and secured the same vide memos. Exhs. PB, PC, PD and PE respectively. He also found 18 crime empties of .7 mm rifle (P.1/1-18), 13 crime empties of .12 bore gun (P.2/1-13) and 51 crime empties of .222 rifle (P.3/1-51) at the spot. The said Investigating Officer collected all these 82 crime empties vide memo Exh. P.F. A. 30 bore pistol (P.5) was also lying at the spot which was seized by the said Investigating Officer vide memo. Exh. PH. A motor car bearing registration No, LPT-1396 (P.4) was also available at the place of occurrence which had fire-arm marks on it and which was taken into possession by the Investigating Officer vide memo.
Exh.P.G. He also collected a Tarpaal (P.6) vide memo. Exh. P.J as the same also carried fire-arm marks on it.
8. He arrested Bashir, Rasheed, Asghar, Shehbaz, Imtiaz and Amjad accused on 28-9-1996 while Muhammad Ali accused was arrested by him on 7-10-1996. After their arrest, Shehbaz and Asghar accused, on 11-10-1996, led to the recovery of a .12 bore gun (P.18) and a .7 mm rifle (P.19) respectively while Bashir accused on the same day led to the recovery of his licensed. 7 mm rifle (P.20) with its license (P.21) and all these fire arm weapons were taken into possession vide memos.
Exhs. PO, PP and PQ respectively. On 17-10-1996 Ayaz accused (not a respondent before us) appeared before the said Badar Munir Investigating Officer and produced a .222 rifle (P.22) before him which was secured vide memo. Exh.PQQ.
9. On 20-10-1996 all the 82 crime empties were received in the Forensic Science Laboratory at Lahore while one .7 mm rifle (P.19) allegedly recovered at the instance of Asghar Ali accused and one .12 bore gun (P.18) allegedly recovered from Shehbaz accused were received in the said laboratory on 30-10-1996. All these items had been allegedly taken to the said Forensic Science Laboratory by Muhammad Anwar F.C. P.W.10. It may be mentioned here that the .7 mm rifle (P.20) which had been recovered at the instance of Bashir accused on the same day when a .12 bore gun (P.18) and a .7mm rifle (P.19) had been allegedly recovered from Shehbaz and Asghar accused, had not been sent to the said F.S.L. On 30-10-1996 along with P.18 and .P.19 above mentioned. It may be added that strangely enough. According to the report of the F.S.L. The abovementioned crime empties had been received by it on 20-10-1996 while according to Muhammad Anwar F.C. P.W.10 the said crime empties had been taken by him from Mahmood-ul-Hassan M.H.C. P.W. 11 on 18-9- 1996 and he had deposited the same with the said laboratory the same day i,e, on 18-9-996.
Conspicuously enough, although according to the said report of the F.S.L. a .12 bore gun P.18 and a .7mm rifle P.19 had also been brought to them by Muhammad Anwar F.C. On 30-10-1996 but the said Muhammad Anwar makes no mention either of having received these weapons or of having taken them to the said Forensic Science Laboratory,
10. According to the report Exh. PZZ dated 18-12-1996 of the said F.S.L. Seven crime empties of .7 mm bore had been found to have been fired from the .7 mm rifle (P.19) alleged to have been recovered at the instance of Asghar accused while all the .12 bore crime empties were found to have been fired from the .12 bore Pump Action gun (P.18) allegedly recovered from Shehbaz accused. The .7 mm rife (P.20) recovered from Bashir accused on 11-10-1996 appears to have been received by the Forensic Science Laboratory on 10-11-1996 as per Muhammad Anwar F.C. (P.W. 10) while a .222 rifle (P.22) allegedly recovered from Ayaz accused on 17-10-1996 was received by the said laboratory on 25-9-1997 as per Liaqat Ali A.S.I. As has been mentioned above Muhammad Anwar F.C. P.W. 10 never made any mention of having taken the abovementioned. 7 mm rifle to the F.S.L. And for unknown reasons, this Liaqat Ali A.S.I. Who had deposited this rifle (P.22) with the said laboratory on 25-9-1997, was never produced as a prosecution witness at the trial. However, according to the report Exh.PBBB dated 1-10-1997 of the said laboratory, five crime empties of .7 mm had been found to have been fired from the .7mm rifle (P.20) recovered from Bashir accused while none of the 51 crime empties of .222 had been found to have been fired from the .222 rifle (P.22) allegedly recovered from Ayaz accused. It may be added that .7mm rifle (P.20) abovementioned which was recovered at the instance of Bashir accused was, according to the admission made by Badar Munir S.H.O./I.O. And also according to the memo. Exh. PQ, was never sealed at the time of its recovery. As has been noticed above .12 bore gun (P.18), a. .7 mm rifle (P.19) and another .7 mm rifle (P.20) were recovered from Shehbaz, Asghar and Bashir accused respectively on the same day i,e, on 11-10-1996 and while the said weapons i,e, P.18 and P.19 were received in the F.S.L. On 30-10-1996; the .7mm rifle (P.20) recovered from Bastiir accused was received in the said laboratory almost one year thereafter i,e, on 25-9-1997 There is yet another strange aspect of this matter. A .222 rifle (P.22), as has been mentioned above, was recovered from Ayaz accused on 17-10-1996 vide memo.
Exh. PQQ. According to this memo. Of recovery the number of this rifle (P.22), when recovered, stood erased and a .222 rifle was received in the F.S.L. On 25-9-1997, as per Exh. PBBB having been recovered from Ayaz accused and was the one the number of which was found erased. There is another report of the F.S.L. Exh. PCCC at page 54-C of, this Paper-Book which report is dated 6-10- 1997. According to this report another .222 rifle bearing No,1706 was also received in the laboratory on 4-10-1997 and this rifle was again a weapon allegedly recovered from Ayaz accused. This report adds that 20 crime empties of .222 bore out of 51 crime empties of the said bore found at the place of occurrence were found to have been fired from this .222 rifle bearing No,1706, According to the memos. Of recovery and according to the statement of Badar Munir S.H.O./I.O. Only one .222 rifle had been recovered from Ayaz accused on 17-10-1996 and its number, as has been noticed above, was found erased. Which is this other .222 rifle bearing No,1706 allegedly recovered from Ayaz accused and which was received in the F.S.L. More than one year after the occurrence. Is not discernable from the record.
11. The above is then the situation as appearing on record, relating to the crime empties allegedly found at the place of occurrence and of the fire arm weapons allegedly recovered from the accused persons and allegedly received in the Forensic Science Laboratory. It may be added that no weapon of offence had been recovered from or at the instance of the other four accused persons, namely, Muhammad Ali, Rasheed, Amjad and Imtiaz.
12. When confronted with the prosecution case under section 342, Cr.P.C., Bashir accused pleaded that on the day of occurrence the complainant party came armed to his residence in an organized manner, that the said members of this complainant party who had so come to the residence of Bashir accused were Ismail (deceased), Iftikhar (deceased), Hafiz Amjad Masood (deceased), Maroof, the injured P.W. And Shehbaz injured P.W. And they were all armed with fire-arm weapons; that these persons of the complainant party were accompanied by some other persons who were also armed with firearm weapons, that all of them attacked the house of Bashir accused and even insulted him as these members of the complainant party were powerful persons of the village; that Bashir accused requested them particularly Ismail deceased that he was prepared to declare on the loud speaker of the mosque that he was their Kammi but Ismail deceased continued insulting him and his family; that Ismail deceased further said that he had brought Shehbaz P.W. As a bridegroom and wanted the daughter of Bashir accused for him; that these members of the complainant party were repeatedly requested not to disgrace the family of Bashir accused and they also gave pushes to a nephew of Bashir accused, namely, Ayaz; that an altercation took place between the parties whereafter the said Ayaz accused brought out a rifle and opened fire to save his life, to save the life of Bashir accused and also to save the honour of their family; that cross firing between the two parties then ensued as a result of which Ismail, Iftikhar, Amjad Masood and Mst, Abida Sheheen lost their lives while Maroof complainant, Shehbaz P.W. And Mst. Sharifan (given up) sustained injuries. Bashir accused further added that one of his sons, namely, Muhammad Afzal who was deaf and dumb; was teased for himself and for his family honour and the said Afzal had raised hue and cry. Bashir accused had further declared that the other accused persons, namely, Muhammad Ali, Rasheed, Imtiaz, Shehbaz, Asghar and Amjad were not present at the time of occurrence and had not participated in the same.
13. All the other accused persons adopted the above-noticed plea taken by Bashir accused.
14. The accused persons did not lead any oral evidence but placed certain documents on record,.
An application was however, moved on behalf of the accused persons under section 540. Cr.P.C.
Praying that one Muhammad Amin who was allegedly a paternal uncle of Mst. Abida Shaheen deceased be summoned as a Court witness: This application was allowed and this Muhammad Amin was then examined as C.W.1.
15. He claimed that on the day of occurrence he was going to the Jamia Masjid of the village to offer Jumma prayer where he saw Iftikhar deceased armed with a .222 nfle. Amjad deceased armed with a revolver, 30 bore pistol. Ismail deceased armed with a .222 rifle, Maroof complainant P.W. Armed with a .12 bore gun and Shehbaz P.W. Armed with a .7 mm rifle and then narrated the same story which had been given by Bashir accused through his statement under section 342, Cr.P.C. And which has been noticed above. He had however added that his neice namely, Mst.
Abida Shaheen had been hit by a shot fired by Shehbaz P.W. He further claimed to have made an application for the registration of a criminal case against the complainant party of the present case with respect to the murder of Mst. Abida Shaheen but the needful was not done whereafter he approached the Lahore High Court praying for the issuance of a writ for the registration of the said criminal case. This Court is stated to have passed orders directing the S.P. Of Kasur to look into the matter if approached this Amin C.W. It was admitted by him that he never made any formal application to the said S.P. But only made an oral request to him for the purpose. It may be mentioned here that this Amin C.W. Neither got an F.1.R. Registered with respect to whatever he claimed to have seen nor did he even file a complaint after the alleged refusal of the police authorities to oblige him with an F.I.R. It may also be added that as per Dr. Kanwar Afzal Bashir P.W.
8 who had medically examined Mst. Abida Shaheen aged about nine years when she had been taken to the T.H.Q. Hospital Pattoki on 6-9-1996 at 2-15 p.m.. The one who had brought this injured victim to the hospital was the father of Mst. Abida Shaheen, namely, Muhammad Shafi although this Amin C.W. Claimed through his abovementioned statement that he was the one who had taken Mst. Abida Shaheen to Pattoki Hospital.
16. Before we proceed any further, a mention may also be made about the judgment of acquittal passed by the learned trial Judge and the reasons which had weighed with him for acquitting the accused persons. This judgment spreads over 82 pages of this Paper-book. 78 out of these 82 pages and 124 paragraphs out of the total of 131 paragraphs of this judgment contain only the narration of facts; the evidence led at the trial and the contentions of the learned Prosecutor and the learned defence counsel. Having reproduced this evidence in 78 pages, the learned trial Judge proceeded to hold in para. No,125 of the judgment that the prosecution had withheld the P.Ws.
Which were cited as eye witnesses and had similarly withheld the Investigating Officers. Who had also conducted the investigation and had rendered their opinion about the case and consequently held that in such a state of affairs it was apparent that the prosecution was withholding the fact how the incident started and the prosecution was only projecting the result of the occurrence. In para 126, the learned trial Judge declared that in the given circumstances the only person who seemed to be independent was Muhammad Amin C.W.1 and since he was the one who deserved reliance, therefore, the accused persons deserved acquittal. The learned Judge had also sought strength in reaching this conclusion from the fact that at least 20 Crime empties of .222 rifle had been found to have been fired from the .222 rifle produced by one Aslam and which was attributed to Ayaz accused.
17. This judgment of the learned trial Judge will be discussed further in some detail in the later part of this judgment but before we proceed any further we would like to notice here that while the learned trial Judge was giving the facts of the case and the evidence led at the trial, he had brought on record the opinion of various Investigating Officers such as the alleged opinion of Shafqat Bari D.S.P., Asif Nawaz S.P. Crimes Branch, Abdus Samad Shah D.S.P. And the fact that the report of Abdus Samed D.S.P. Had also been approved not only by the S.P. And the D.I.-G. Of Crimes Branch but had even received the "Assent" of the Inspector-General of Police when none of these Investigating Officers had either appeared as prosecution witness or had even been summoned either as Court witness or defence witnesses. The learned trial Judge had shown complete ignorance of the relevant provisions of law relating to the inadmissibility of hearsay evidence and the inadmissibility of the opinions of the Investigating Officers. In evidence. The learned trial Judge had also referred to various case diaries in paras. Nos.6 and 8 of his judgment again in ignorance of and undaunted by the prohibition contained in section 172 of the Cr.P.C.
18. We consider it appropriate to first examine the defence plea raised by the accused persons supported by Muhammad Amin C,W.1, to determine whether the said plea was reasonable and plausible.
19. It was the case of Bashir accused owned by the other accused persons that five members of the complainant party, namely, Ismail deceased, Iftikhar deceased, Amjad Masood deceased, Maroof complainant and Shehbaz P.W. Had come to his house after arming themselves with fire-arm weapons when they were accompanied by some other persons who were also similarly armed and had then attacked the house of Bashir accused. Amin C.W.1 added to the plea of Bashir accused by disclosing that the other persons who had allegedly accompanied the members of the complainant party to attack the house of Bashir accused were Riaz armed with a .222 rifle, another Riaz armed with a .7 mm rifle, one Nisar armed with a .12 bore gun, Faqir Muhammad armed with a .12 bore gun, Haji Allah Din armed with a .12 bore gun. Shahbir Ahmad armed with a .222 rifle and Muhammad Asif armed also with a .12 bore gun. This then brought the number of these alleged assailants of the complainant party to 12 who were armed with fire-arm weapons and who had allegedly attacked the house of Bashir accused. According to the defence, it was only Ayaz from the accused side who had exchanged fire with the abovementioned armed persons from the complainant party. This alleged cross firing left four dead and three seriously wounded. Out of these seven victims of the occurrence six i,e, three dead and three injured belonged to the complainant party while Mst. Abida Shaheen deceased was a passer-by.
20. As has been noticed above, three of these victims had died at the spot while Maroof and Shehbaz P.Ws. Were rushed to the hospital in a seriously injured condition. All five of them were allegedly armed, with fire-arms. The fire-arm weapons carried by these five victims were never found at the spot. The defence never alleged or claimed that it was either these victims--the dead or the injured who had taken their fire-arm weapons with them or that anyone from the complainant party had removed them from the place of occurrence. The defence plea and the story offered by Amin C.W. Offer no explanation about this aspect of the matter. According to the defence and the C.W., a large battalion from the complainant side comprising 12 persons had 'gone to the house of Bashir accused after arming themselves with fire-arm weapons and had attacked his house. Neither the accused persons nor the C.W. Disclosed any reason why such a violent attack should have been planned and made by the complainant party on Bashir accused.
The abovementioned 12 armed men had mounted an assault which was retaliated by a solitary Ayaz from the accused side. The allegedly aggressor complainant party, 12 times in number, left the place of occurrence with three dead and three injured while not even a scratch was caused either to the solitary Ayaz or to Bashir accused or to anyone else. This rather miraculous claim does not appear either to be reasonable or plausible. The defence further claimed that the seven victims of the occurrence had received the fire-arm injuries while 12 persons from the complainant side and one person from the accused party were exchanging fire. Dr. Kanwar Afzal Bashir P.W.8 who had conducted the medico-legal examination of the injured persons and the post-mortem examination of the dead. Had found that the margins of the injury received by Maroof complainant, the margins of all the four wounds of entry of Shahbaz P.W., the margins of the wound of entry on the body of Hafiz Amjad Masood deceased, the margins of the injuries received by Ismail deceased and the margins of injuries received by Iftikhar deceased were blackish in colour and the defence extracted it from this doctor in cross-examination that these injuries had been caused from a close .Range i,e, from within 6 inches to 1 foot. If the two sides were exchanging fire with automatic and other fire-arm weapons then it is not believable that someone could go so close to the other armed aggressors so as to cause injuries on the bodies of these persons from a distance of 6 inches or 1 foot. No marks of any fire-arm projectiles were found on any part of the house of Bashir accused.
' Muhammad Amin C.W.1 had claimed that having witnessed the occurrence, he was the one who had rushed his neice Mst. Abida Shaheen to Pattoki hospital in an injured condition and this is how he had also attempted to prove his presence at the place of occurrence at the relevant time. He is falsified by Dr. Kanwar Afzal Bashir P.W.8 who had medically examined Mst. Abida Shaheen on 6-9- 1996 at 2-15 p.m. And according to whom the said child had been brought to him by her father, namely, Muhammad Shafi. This C.W. Claimed to have sought registration of a criminal case against the complainant party for the murder of Mst. Abida Shaheen but could not produce any application which he may have made either to the S,H.O. Or to any superior police officer for the purpose. He, however, did file a writ petition in the High Court for the said purpose and having been directed by this Court to approach the S.P. Of Kasur for the purpose which S.P. Had been ordered to look into the matter, this C.W. Admitted that he had never made any written application to the S.P.
In pursuance of this order though he claimed that he had orally made a statement before him.
There is thus nothing on record to establish that besides filing a Constitutional petition, this C.W.
Had ever made any effort to have a criminal case registered with respect to the murder of Mst.
Abida Shaheen. If it is presumed that the local police up to the level of the S.P. Had not obliged this C.W, with the registration of a criminal case then Muhammad Amin C.W. Always had the option of filing a private complaint which was however, never done.
21. Badar Munir S.-I./S.H.O. P.W.12 had originally, investigated this case from the very day of occurrence i,e, from 6-9-1996 up to 18-10-1996. He further claimed to .Have remained associated even with the investigation which was conducted by the Circle Officer, namely, Shafqat Bari D.S.P.
While under cross-examination, this Badar Munir S.H.O. Conceded almost every question which was put to him by the defence. He admitted that the very first version of Rasheed accused before him was that he had not participated in the occurrence and was in fact present in Chak No,36 at the time of occurrence. He further admitted that the first version of Imtiaz accused was that he had also not taken part in the occurrence and was in fact present at the Highway Rest House of Kasur in connection with a farewell party in honour of one Major Tariq. He had gone on to admit further that the first version of Amjad accused before him was that he was sleeping in his house at the time of occurrence because he was running fever. According to this Investigating Officer the first version of Muhammad Ali accused was that he had also not participated in the occurrence. This Investigating Officer had also noticed the first versions of Bashir and Ayaz accused which have already been noticed in this judgment as the defence plea of the accused persons.
22. Badar Munir Investigating Officer had further admitted that it was the finding of Shafqat Bari D.S.P. That Rasheed accused, Imtiaz accused, Muhammad Ali accused, Bashir accused and Amjad accused had not participated in the occurrence. When objection was raised that these admissions were not admissible in evidence being the conclusions allegedly reached by another Investigating Officer who had not entered the witness-box, Badar Munir Investigating Officer rushed to declare that so far as the investigation remained with him it did not stand proved that the above named accused persons had participated in the occurrence in question. He had further conceded that Shafqat Bari D.S.P. Had even reached a conclusion that the occurrence in question was sudden affair and was the result of family honour and further that a large number of persons had appeared before D.S.P. Shafqat Bari in defence of the accused persons. When objection was taken w these admissions also, Badar Munir Investigating Officer hastened to own that he was also of the same view as Shafqat Bari D.S.P. These admissions are of no assistance to the defence, firstly, because the conclusions allegedly reached by Shafqat Bari D.S.P. Could not be brought on record through Badar Munir S.I. And secondly because it has been repeatedly held by the superior Courts including this Court that the opinions of the Investigating Officers were not the opinions of the expert witnesses and these were thus not admissible in evidence.
23. Having thus examined the defence version of the occurrence in question and having also scrutinized the testimony offered by Haji Muhammad Amin C.W.1, we find that the defence plea was neither reasonable nor plausible and further that the testimony offered by Muhammad Amin C.W.1 was not trustworthy and reliable.
24. This then brings us to the prosecution case.
25. Before we proceed any further with the matter, the inter se relationship of the accused party and the inter se relationship of the members of the complainant party may be noticed.
26. Bashir Ahmad, Muhammad Ali and Rasheed accused are real brothers. They are the sons of,Ahmad Din. Asghar and Amjad accused are the sons of Bashir accused while Shehbaz, Imtiaz and Ayaz accused are the sons of Muhammad Ali accused.
27. On the complainant side, Maroof is a son of a daughter of one Chughata. This Chughata has a brother by the name of Fazal Din. Shehbaz (injured P.W.2) and Fayyaz (P.W. 13) are the sons of this Fazal Din. Ismail deceased of the present case is a maternal uncle of Fayyaz and Shehbaz P.Ws.
Iftikhar deceased is a paternal cousin of Shehbaz and Fayyaz P.Ws. Abovementioned, as the father of Iftikhar deceased namely Ilam Din is a brother of the father of Fayyaz and Shehbaz P.Ws. Namely Fazal Din. Asghar P.W.3 is the son of one Allah Bakhsh which Allah Bakhsh has a brother by the name of Ameer Bakhsh whose wife is Mst. Noor Bibi. This Ameer Bakhsh i,e, the paternal uncle of Asghar P.W.3 has a son by the name of Resham Ali and this Resham Ali is the maternal grand- father of Hafiz Amjad Masood deceased, It may be added her that the abovementioned Mst. Noor Bibi, who is the wife of abovementioned Ameer Bakhsh has a sister by the name of Mst. Natho. This Mst. Natho is the mother of Ahmad Din who is the father of Bashir, Muhammad Ali and Rasheed accused.
28. The prosecution examined three eye witnesses at the trial namely, Maroof complainant P.W.1, Shehbaz P.W. 2 and Asghar P.W.3. Maroof complainant P.W.1 and Shehbaz P.W.2 are injured witnesses of the occurrence in question. Even according to the defence version, as noticed above, these two P.Ws. Were present at the place of occurrence at the relevant time. Thus their availability at the venue of occurrence is not open to any doubt. Not a single question had been put to Maroof complainant to suggest even remotely, about any enmity or which he may have had against the accused persons of the present case. He was thus an independent witness of the present occurrence. So far as Shahbaz P.W. Is concerned, it was suggested to him and denied by the said P W that he was making a false statement because the accused party had obtained their share in their ancestral property from the elders of Shahbaz P.W. After some litigation and that he had been poisoned by his elders against the accused party. The litigation between the elders of Shehbaz P.W.
Who was about 19/20 years of age at the time when he appeared at the trial and would have thus been born around the year 1977, was that the father of Muhammad Ali, Bashir and Rasheed accused, namely, Ahmad Din had got some land allotted in his name in the year 1946; that one Ghulam Muhammad who was an uncle of the father of Shahbaz P.W. And one Saddar Din, who was a cousin of this P.Ws. Father had got this allotment, in the name of the said Ahmad Din, cancelled in the year 1955 and that after some litigation, the said Ahmad Din had retrieved the said land in the year 1959-60. Shehbaz P.W. Had denied any knowledge of this litigation. Needless to add here than this. Litigation even if the same be presumed to have existed between an uncle of the father of Shehbaz P.W. And a cousin of the father of the said P.W. With Ahmad Din who was the father of Muhammad Ali, Bashir and Rasheed accused, was rather farfetched. This litigation is stated to have ended about 20 years before Shehbaz P.W. Was even born. This ancient litigation of some distant relations of the Shehbaz P.W. With an elder of the accused party, even if the same was accepted as true, could hardly offer any reason to Shehbaz P,W, to falsely implicate the accused party in the occurrence in question. The other litigation which was put to Shehbaz P.W. Also dates back to the year 1950 and which was allegedly between the abovementioned Ahmad Din who is the father of Muhammad Ali. Bashir and Rasheed accused and one Resham who was a maternal grandfather of Hafiz Amjad Masood deceased. Needless to mention here that no relationship of this Shehbaz P.W, could be established with the said Resham and thus the same being offered as a reason for Shehbaz P.W. To falsely depose against the accused party was a frivolous exercise. Thus, even this Shehbaz P.W. Is an independent witness of the present occurrence.
29. An effort was also made by the defence to demonstrate that Asghar P.W. Was an inimical witness. The enmity suggested to him was that there was one Khuda Bukhsh who had three sons by the name of Mehr Din, Qamara and Nizam Din. This Nizam Din again had three sons. Namely, Amir Bukhsh, Wazir and Allah Bukhsh. Asghar P,W.3 is a son of Allah Bukhsh while, as has been noticed above, one Resham was a son of the said Amir Bukhsh and Hafiz Amjad Masood deceased was a son of a daughter of this Resham Ali. Qamara abovementioned did not leave behind any male issue when he died and thus was survived by his widow, namely, Mst. Baagh Bhari and by his two daughters, namely, Mst. Natho Bibi and Mst. Noor Bibi, This Mst. Natho Bibi is the mother of the father of Muhammad Ali, Bashir and Rasheed accused, namely, Ahmad Din while her sister Mst.
Noor Bibi was the wife of a paternal uncle of Asghar P.W.3, namely, Amir Bukhsh above said. The abovementioned Mst. Baagh Bhari allegedly gifted some land to Mst. Noor Bibi which she had received as a limited estate left behind by her husband, namely, Qamara. The paternal grandmother of Muhammad Ali, Bashir and Rasheed accused, namely, Mst. Natho Bibi challenged the said transfer of land by Mst. Baagh Bhari in favour of Mst. Noor Bibi who was a Chachee of Asghar P.W.3 and who, as has been mentioned above, was the mother of the maternal grandfather of Hafiz Amjad Masood deceased. The defence tried to show that since Mst, Natho who was the paternal grandmother Of 'Muhammad Ali accused etc. Had filed a suit against Mst. Noor Bibi who was a Chachee of Asghar P.W., therefore, Asghar P.W., was inimical towards the accused party. This was again a rather farfetched reason and could not be deemed to be a ground which could have led Asghar P.W. 3 to falsely depose against the accused party. It may be added here that the father of Asghar P.W. Namely, Allah Bukhsh was the son of one Nizam Din who was a real brother of Qamara who was the late husband of Mst. Baagh Bhari abovementioned. In case the abovementioned suit filed by Mst. Natho was to succeed and the gift made by Mst. Baagh Bhari in favour of Mst. Noor Bibi was to be set aside and the said land was to revert back to Mst. Baagh Bhari as her limited estate then on the death of Mst. Baagh Bhari this land could have devolved on the paternal grandfather of Asghar P.W. 3 and the descendent of the said paternal grandfather who, as has been mentioned above, was a brother of Qamara to whom the land in dispute belonged. This suit filed by the paternal grandmother of the accused party served the interest of Asghar P.W.3 and his predecessors in interest and consequently the interest of Asghar P.W. Did not clash with the interests of the father of the accused party. In these circumstances we hold that even Asghar. P.W.3 had no reason to maliciously depose against the accused party.
30. Mr. Munir Ahmad Bhatti, Advocate appearing for the accused persons argued that the testimony offered by the three eyewitnesses was not worthy of any reliance because Maroof complainant' had claimed through the F.I.R. That he was a student of B.A. While he had admitted at the trial that he was studying in F.A.; that all the three witnesses had suppressed their close relationship with the deceased persons; that they had falsely concealed their respective enmity with the accused party and finally that their testimony was falsified by the medical evidence.
31. It is true that it had been mentioned by the complainant in the F.1.R. That he was a student of B.A.
It is also true that the complainant had admitted while under cross-examination that he had appeared in the F.A. Examination during the days of occurrence but had volunteered that he was preparing for his B.A. Examination. There is a definite possibility in our system where one is studying in the B.A. Class and still taking the F.A. Examination because of compartments received by a student which permit such a student to take admission in next class while availing of the attempts to appear in the earlier examination. Be that as it may, this is hardly a reason to declare that Maroof complainant was a false witness in all respects.
32. The relationships and the enmity put to the eye-witnesses in the cross-examination' have already been noticed above. None of these three eye-witnesses could be shown to have denied any admitted relationship or any established enmity. The submission to that effect by the learned counsel for the accused party was thus without any merit. It is true that all the three eye-witnesses were declaring that the shots received by the victims in the occurrence in question had been fired not from a very close range but from a distance of a few yards or more. As has been noticed above, at least two eye-witnesses namely, Maroof complainant and Shehbaz P.W. Were injured witnesses of the occurrence in question whose presence at the place of occurrence did not admit of any doubt. The discrepancies of the kind noticed above could be valid only to demonstrate that then alleged eye-witnesses had not seen the occurrence because while they were saying that the shots had been fired from a long range, the doctor declared the said shots to have been fired from a close range. Such is not the situation in the present case. While this dastardly occurrence was in progress, it would be too much to expect from an admitted eye-witness to give the exact distance from where the shots were being fired at different victims i,e, seven victims in the present case. It may also be added that the margins of the wounds of entrance carrying blackish color is not a definite proof of the fact that they were fired from a very close range i,e, from 6 inches to 1 foot as claimed by the doctor because no wad etc. Had been found under any of the injuries received by any of the seven victims. Even according to the doctor the margins had no definite blackening, burning or tattooing but they were only blackish in colour. Such a blackish colour could be the result not necessarily of firing of shots from a close range but could be caused by a number of other reasons including the type and the existence of the gun powder used in the said projectiles.
For the above reasons and also for the reason that two of the eye-witnesses were admittedly present at the place of occurrence when the shots were being fired, the above noticed submission made by the learned counsel could not be considered fatal of the prosecution case. Nor could the same be considered sufficient to discard the testimony of the admitted eye-witnesses of the occurrence.
33. The learned counsel for the accused respondents attacked the credibility of the eye-witnesses also on the ground that the complainant party belonged to the Deo Band Sect and did not offer prayers in the mosque near which the occurrence in question had taken place because the said mosque belonged to a rival sect of the Muslims. The learned counsel also made efforts to show that there were other vegetable shops which were available closer to the house of the complainant party and thus, its members did not have to go to the shop of Shahab Din to purchase vegetables which shop was also near the place of the present occurrence. When the above suggestions were put to the P.Ws. The same were denied. Be that as it may, as has been noticed-above, two of the eye-witnesses, namely, Maroof and Shehbaz had admittedly received injuries in the occurrence in question and their presence at the place of occurrence at the relevant time had also not been denied by the accused party. In the circumstances the question whether there were vegetable shops available near the house of these P.Ws. And the question whether the injuries received by the victims were the result of the projectiles fired from a short distance or from a long range, were questions which were irrelevant and inconsequential
34. It was further argued that the F.I.R. Of the present case was a delayed F.I.R. And thus the result of deliberations and fabrications and further that the accused persons had established their innocence before the Investigating Officers which Investigating Officers had reached conclusions accordingly.
35. The occurrence in question had taken place at about 1-30 p.m.. The injured were then rushed to the hospital and it was there that an application for registration of an F.I.R. Had been handed over to Badar Munir S.I./S.H.O. On the basis of which a formal F.I.R. Had then been recorded at the police station and all this had happened within one and a half hours of the occurrence because the F.I.R.
Stood registered at the police station by 3-00 p.m. In the circumstances, we find it difficult to hold that the F.I.R. In the present case was a belated F.I.R. The alleged declaration of the innocence of the accused persons by the Investigating Officers is a question which had already been dealt with by us in para. No,22 of this judgment and we have already held that the said opinions of the Investigating Officers were not admissible in evidence for different reasons and were consequentially of no benefit to the accused persons.
36. The alleged recovery of 82 crime empties from the place of occurrence; the alleged recovery of the fire-arm weapons from four of the eight accused persons and the reports of the Forensic Science Laboratory could have been of some help to the Court in reaching some conclusions one way or the other. But as had been noticed by us in the earlier part of this judgment, the advantage expected from these pieces of evidence was lost either due to the intentional or negligent or even inadvertent act of the Investigating Officers and other concerned. Mahmood-ul-Hassan M.H.C.
(P.W.11) claimed to have handed over the parcels containing all the crime empties to Muhammad Anwar F.C. (P.W.10) on 18-9-1996 for onward transmission to the Forensic Science Laboratory This Muhammad Anwar F.C. (P.W. 10) declared to have deposited these parcels of crime empties with the said laboratory the same day i,e, on 18-9-1996. However, according to the report Exh. PZZ, and the report Exh.PCCC. These crime empties had reached the said laboratory on 20-10-1996 i,e, after one month and two days to the same had been received by, Muhammad Anwar F.C. From the Moharrer Head Constable and had been alleged by the said Anwar to have been deposited with the F.S.L. There is no explanation on record as to where were these empties for these 32 days.
According to the report Ex.PZZ of the F.S.L. Two fire-arm weapons, namely, .7 mm rifle recovered from Asghar accused and a .12 bore gun recovered from Shehbaz accused had been brought to the said laboratory on 30-10-1996 by Muhammad Anwar F.C. According to the report Exh. PAA. Of the same laboratory Muhammad Anwar F.C. Had also taken another rifle of .222 bore to the said laboratory on 10-11-1996 and this Muhammad Anwar F.C. Had taken yet another rifle of .222 bore bearing No, 1706 to the said laboratory on 4-10-1997 as is evident from the report Exh. PCCC. But this Muhammad Anwar F.C. (P.W.10) was absolutely silent on this issue and never uttered even a single word relating to these fire arm weapons having been taken by him to the said laboratory. Likewise one Liaqat Ali A.S.I. Had, as per report Exh. PBBB. Of the Forensic Science Laboratory, carried some fire-arm weapons including a .222 bore rifle, with erased number allegedly recovered from Ayaz accused but this Liaqat Ali A.S.I. Was never produced as a witness at the trial to depose about the said fact. Similar was the position of Ghulam Hussain S.I. Who had also deposited a .222 rifle with the F.S,L. As per Exh. PCCC. But this Ghulam Hussain S.I. Also never appeared at the trial to make any statement about the same. It may be added that it had been admitted by Badar Munir S.I./S.H.O.
P.W.12 while under cross-examination that he had never sealed the rifle which he had allegedly recovered from Bashir accused. The above-noticed facts and circumstances, unfortunately render the above noticed pieces of evidence as inconsequential and the same are, therefore, neither of any benefit to the prosecution nor of any assistance to the defence because the defence version was sought to be supported by the fact that some crime-empties found at the spot had been found to have been fired from a .222 rifle bearing No,1706. No one knows how and when this rifle which had reached the F.S.L. On 4-10-1997 was recovered from Ayaz and who carried the same to the said laboratory.
37. This brings us to the question of motive. Bashir accused had mentioned that the members of the complainant party including the dead and the injured had come to his house after arming themselves with fire-arm weapons and were accompanied by some other armed persons and had attacked his house. He had added that they insulted the said Bashir accused and despite his request to them that he was prepared to declare on the loud speaker of the mosque that he was their Kammi, Ismail deceased and others continued to insult him and his family and even said that they had brought Shehbaz P.W. As the bridegroom and wanted his daughter for him. As has been noticed and discussed by us above, no reason or explanation was offered by Bashir accused as to why such a large number of persons from the complainant side should have mounted such a grave assault on the house of the accused and why should these persons have disgraced Bashir accused and should have even passed taunting remarks. Bashir accused never specified any reason or motive or any background of enmity or any immediate reason which could have prompted the complainant party to launch such an aggression.
38. The prosecution case on the other hand was that Fayyaz P.W. 3 had gone to fetch vegetables from the shop of one Maulvi Shahab Din and while he was passing from in front of the house of Muhammad Ali accused, his son Imtiaz accused gave abuses to the said Fayyaz and even belabored him with fist blows and this is what ultimately led to the occurrence in question when Ismail deceased and Shehbaz P.W. Had gone to the house of the accused party to protest against such a conduct of Imtiaz accused. The eye-witnesses had talked about this motive but the same was ultimately sought to be established by Fayyaz P.W.13 who subsequently entered the witness- box to confirm the above-noticed motive' story.
39. Having thus, examined the entire evidence, oral and documentary, available on record and having heard the learned counsel for the parties at some length we hold, for reasons mentioned in paras. Nos.12, 13, 14, 15, 16, 19, 20 and 21:-
(a) that the defence version of the occurrence was not reasonable and plausible;.
(b) that the testimony offered by Muhammad Amin C.W. 1 was not believable;
(c) that the admissions made by Badar Munir S.I./I.O. P.W.12 were of n' help to the defence because the same comprised hearsay evidence. Material not admissible in evidence and matters which were hit by section 172 of the Cr.P.C.;
(d) that the report Exh. PCCC, of the Forensic Science Laboratory was of no assistance to the defence for reasons discussed in para. 36 above: and ' consequently we reject the defense explanation of the occurrence in question and also the testimony offered by C.W.1.
40. For reasons mentioned in paras. 28, 29, 30, 31 and 32 we are of the view that the eye-witness account offered by the prosecution was reliable and generally inspired confidence and was the kind of testimony where one did not even have to look for corroboration.
41. This then brings us to the determination of the crucial question as to whether all or else who from amongst the seven respondent-accused persons were guilty and what offence had been committed by which respondent.
42. Six persons from the complainant side and one passer-by had received fire-arm injuries in the occurrence in question and 82 crime empties of different weapons had been found at the spot.
Having discarded the defence version we have held that all these injuries on the bodies of these seven victims had been caused by the members of the accused party. The number of shots thus fired in the occurrence in question generally corresponds with the number of accused persons alleged by the prosecution to have participated in the crime in question.
43, However, Amjad accused was admittedly about 13 years of age at the time of occurrence, His participation in the occurrence after arming himself with Carbine admits of some doubt the benefit of which must be extended to him. Resultantly, Criminal Appeal No,192 of 1998 is dismissed to the extent of said Amjad respondent.
44. With respect to the other six accused respondents we find and held that the prosecution had successfully proved, beyond all doubts, that they had formed an unlawful assembly after arming themselves with fire arm weapons; that they had caused Qatl-iAmd of Ismail deceased, Iftikhar deceased, Hafiz Amjad Masood deceased and Mst. Abida Shaheen deceased and that they were also responsible for causing fire-arm injuries on the persons of Maroof complainant and Shehbaz P.W. They are not being held guilty for the injuries received by Mst, Sharifan P.W. Because she had not entered the witness box at the trial.
45. Consequently, each one of these six respondents, namely, Bashir Muhammad Ali, Rasheed, Asghar, Shehbaz son of Muhammad Ali and Imtiaz is convicted under section 148 of the Pakistan Penal Code and is directed to suffer two years R.I. And a fine of Rs,2,000 or six months R.I. In default of payment of fine.
46. Each one of them is also convicted under section 302 (b)/149 of the P.P.C. On four counts for the Qatl-i-Amd of Ismail deceased, Iftikhar deceased, Hafiz Amjad Masood deceased and Mst. Abida Shaheen deceased.
47. Fatal injuries stand ascribed to Bashir, Rasheed and Muhammad Ali convicts. Therefore, each one of these three convicts is punished with Death on the said charge on four counts. Each one of them shall consequently be hanged by the neck till each one of them be dead. None of the other three convicts namely. Asghar, Shahbaz and Imtiaz convicts was burdened with fatal injuries.
Therefore, each one of them is sentenced to suffer imprisonment for life on four counts on the said charge. Each one of these six convicts shall pay Rs,50,000 on each counts as compensation to the legal heirs of the deceased under section 544-A of the Cr.P.C. And in case of default in payment of this compensation, each of them shall suffer six months S.I. On each count. It may be mentioned here that we are conscious of the fact that it could have been argued in the present, case that the above-named three convicts did not deserve death penalty because the immediate cause which had led to the occurrence was not too clear or that the reason offered for the attack was insufficient. Despite this consideration we have imposed the punishment of death on the said three convicts because of the extreme disregard that they had shown for human lives; the large number of shots fired by them on the unarmed victims of the occurrence and because they stopped only after they had felled six of the complainant party on the ground and a seventh passer-by. These convicts had shown no mercy and thus deserved at none.
48. Each one of the above named six convicts is further convicted under section 324/149. P.P.C. For having mounted an assault on Maroof and Shehbaz P.Ws. Causing fire-arm injuries on their persons. Each one of them is resultantly punished with eight years R.I. On two counts and a fine of Rs,10,000 or two years R.I. In default of payment of fine on the each said count. This amount of fine, if recovered, shall be paid to these injured P.Ws. In equal shares under section 544-A, Cr.P.C. Since we have punished these six convicts under section 324/149, P.P.C. For the injuries which they had caused to Maroof and Shehbaz P Ws., therefore, we are not convicting and punishing , them separately for 'the hurt caused to Maroof and Shehbaz P.Ws.
49. The sentences of imprisonment for life awarded to Imtiaz, Shehbaz and Asghar convicts udder section 302 (b)/149 on four counts, the sentences of imprisonment awarded to each one of them under section 324/149, P.P.C. On two counts and the setneces of imprisonment awarded to' each one of them under Section 148 P.P.C. Shall run concurrently with each other and each one of them shall be allowed the benefit of the provisions of section 382-B, Cr.P.C.
50. Each one of the abovementioned six convicts shall be taken into custody forthwith to suffer the above noticed punishments recorded against each one of them.
51. Imtiaz respondent had also been charged by the learned trial Court for an offence punishable under section 341, P.P.C. For . Stopping Fayyaz P.W. On the day of occurrence at about 1-00 p.m. And for obstructing and preventing him from proceedings to the shop of Maulvi Shahab-udDin. This act of Imtiaz accused could not be said to be connected toghether with the main occurrence so as to form a part of the same transaction in terms of section 235, Cr.P.C. Thus, the said charge under section 341, P.P.C. Could not have been tried at the present trial. Therefore, no decision is being made with respect to this charge.
52. Criminal Appeal No,192 of 1998 filed by the State through the learned Advocate-General for Punjab is disposed of in the above terms.
53. At this stage, the learned counsel for the complainant has elected not to press Criminal Appeal No,292 of 1998 and has prayed for permission to withdraw the same. Criminal Appeal No,292 of 1998 filed by Maroof complainant is dismissed as withdrawn.
54. During the course of arguments before us in the abvoe matters Mr. Munir Ahmad Bhatti, Advocate appearing for the respondent-accused persons submitted Criminal Miscellaneous No, 869-M of 2000 praying for permission to produce certified copies of some documents on record.
Such a prayer made at such a belated stage when these documents had neither been offered to the Investigating Officers during the course of investigation nor had even been produced at the trial, could not be allowed. We had, therefore, dismissed this application and its dismissal is now being recorded through this judgment.
55. We would also like to bring on record that neither party had raised any objection to the trial of the case in question by a Special Court under the Anti-Terrorism Act of 1997 on the ground that the occurrence in question did not fall within the purview of terrorism nor had any such objection been taken even before us. Since no objection had ever been raised by any such party and since this Court is a Court of Appeal against judgments passed not only by the special Courts under the Anti- Terrorism Act of 1997 but also the ones passed by the Court of Session, therefore, we have not adverted to a possible objection to the jurisdiction of the learned trial Court vis-a-vis the trial in question,
56. Before we part with this judgment, we would like to mention that a number of lapses have been noticed by us on the part of Badar Munir S.I./S.H.O. (P.W.12) who had investigated this case and on the part of Muhammad Anwar F.C., P.W.10 who had allegedly carried the crime empties and the fire-arm weapons to the Forensic Science Laboratory. Notice is, therefore, issued to the said Badar Munir S.1. (P.W.12) and to the said Muhammad Anwar F.C. (P.W.10) fat 26-6-2000 to show cause why they should net be punished under section 27 of the Ant.- Terrorism Act of 1997.