1. ' BASHIR A. MUHAJID, J.---Muhammad Altaf alias Tedi son of Sher Khan. Khalid Mahmood son of Ahmad Khan Munir Ahmad son of Muhammad Bashir, Muhammad Azmat son of Khuda Bakhsh, Muhammad Rafique son of Noor Elahi, Javed Sultan son of Ghulam Abbas, Ikram Hussain son of Sher Khan and lqbal alias Bala son of Muhammad Ajaib, appellants, alongwith Muhammad Akram and Muhammad Tariq (in absentia) and acquitted co-accused Painda Khan were tried by Judge Special Court under Suppression of Terrorist Activities, Rawalpindi, under sections 302/307/34, P.P.C.
2. For commission of murder of Sajjad Hussain Shah, Manzoor Hussain, Haji Mirza Khan, Subedar Major Fazal Elahi, Liaqat Ali and Fazal Dad and causing murderous assault on Sabir Hussain, Muhammad Elahi, Khidmat Ali, Fazal Dad and were convicted vide the impugned judgment, dated 27-5-1991 and sentenced to death under section 302/34, P.P.C. On each count with fine of Rs,50,000 each in default of payment of fine to undergo two years for R.I. Each. They were further ordered to pay compensation of Rs,50,000 to the legal heirs of each of the deceased in default thereof to undergo six months' R.I. Each. They were further sentenced to 10 years' R.I. Each under sections 307/34, P.P.C.
3. And fine of Rs, 10,000 in default thereof three months' R.I. Each. They were further ordered to pay Rs,5,000 each as a compensation to the injured during the occurrence, or in default to undergo 3 months' R.I. Each.
4. ' Criminal. Appeal No,86 of 1991 has been filed by above said eight appellants, while Criminal Appeal No,15 of 1991 has been filed by Muhammad Akram and Muhammad Tariq Criminal Revision No,161 of 1991 has been filed by the complainant against the acquittal of Painda Khan. All these connected matters are being decided by this single judgment.
5. ' F.I.R. No,90, dated 19-5;1990 Exh.PUU/1 were registered of Police Station Chua Saidan Shah, District Chakwal on the statement Exh.PUU of Haji Muhammad Elahi P.W.21 recorded by Muhammad Sibtain Shah, S.I. P.W.27 on 19-5-1990 at the spot, alleging therein that the complainant was resident of Mauza Arr. On 19-5-1990 at about 10-00 a.m. In a case under section 307, P.P.C. Against Muhammad Akram, Muhammad Afzal sons of Khuda Bakhsh, Painda Khan son of Mureed Khan residents of the village which was fixed for hearing before the Court of Senior Civil Judge Chakwal; the complainant alongwith Haji Miraz Khan son of Bahadur Khan, 'Sabir Hussain son of Muhammad Afzal, Fazal Dad son of Baz Khan, Manzoor Hussain son of Muhammad Khan, Subedar Major Fazal Elahi son of Noor Elahi, Liaqat Ali, Khidmat Ali sons of Khairat Ali, Haji Noor Elahi son of Fatch Mehdi, Fazal Muhammad son of Faiz Muhammad, Habib Khan son of Chaudhry Khan, Imtiaz Hussain son of Muhammad Khan and Muhammad lqbal son of Khan Bahadur, in order to attend the hearing started for Chakwal from the village on Suzuki No,LHN-1038 which was driven by Sajjad Hussain son of Altaf Hussain Shah. Manzoor Hussain Shah and Sabir Hussain Shah sat at the front seat with the driver while the other boarded in the rear of the vehicle at about 6-40 a.m.. When they reached on metalled link road Dthatha Kot Chowk, accused namely, Muhammad Akram son of Khuda Bakhsh armed with Kalashnikov, Muhammad Tariq son of Muhammad Khan, Muhammad Rafiq son of Noor Elahi, Muhammad Javed son of Ghulam Abbas, Muhammad Iqbal son of Muhammad Ajaib, armed with 7 mm rifle, Ikaram Hussain, Muhammad Altaf alias Tedi sons of Sher Khan, Muhammad Sher son of Muhammad Bashir, Muhammad Azmat son of Khuda Bakhshs armed with .12 bore, Khalid Mahmood son of Ahmad Khan, armed with 32 bore revolver, who were sitting in ambush suddenly came up in front of the vehicle. Muhammad Akram raised Lalkara that they will take revenge for murder of his maternal uncle Muhammad Bashir. Muhammad Akram fired burst shot from his kalahsnikov hitting face, chest, abdomen and legs of Sajjad Hussain Shah which also hit at Manzoor Hussain in his head, neck, abdomen and left arm. Injuries were also received by Sabir Hussain at his left arm ribs and both the legs. Sajjad Hussain and Manzoor Hussain succumbed to the. Injuries while Sabir Hussain was seriously injured. The vehicle went out of control and plunged into the mud at some distance on the western side of the road. The complainant, Muhammad Iqbal, Fazal Muhammad, Khidmat Ali, Noor Elahi, Fazaud Dad, Imtiaz Hussain, Habib Khan jumped out of Suzuki while Haji Mir Khan, Subedar Major Fazal Elahi and Liaqat Ali kept sitting inside.
6. Muhammad Tariq fired two shots from his rifle hitting Mirza Khan on his head and left side of his chest; Muhammad Altaf alias .Tedi fired shots with his 12 bore gun also hitting left arm of Mirza Khan. Muhammad lqbal and Muhammad Afzal, accused fired one shot each hitting Fazal Elahi on 'his chest and abdomen. Muhammad Tariq, accused again fired at Fazal Elahi hitting him on left side of his' chest, Irkam Hussian tired with his gun .12 bore hitting Fazal Elahi on his fore-head and left thigh. Muhammad Munir, accused fired with his gun at Fatal Elahi hittinc at his abdomen.
7. Muhammad Javed fired with his rifle hitting. Liqat Ali on his buttock, Munir fired second shot on Liaqat Ali hitting on his testicles and inner side of his right thigh. Muhammad Azmat fired with his 12 bore gun on Liaqat Ali hitting on his left shin and on left thigh. Khalid Mahmood fired with his revolver two shots on Liaqat Ali hitting on his face and left shin. Haji Mirza Khan, Fazal Elahi and Liaqat Ali also succumbed to the injuries inside the vehicle. Muhammad Altaf alias Tedi fired shots on the complainant hitting at his right jaw and right shin. Muhammad Iqbal Barbar fired at Khidmat Ali with his rifle hitting him under his left arm pit. Ikram fired with his gun at Habib Khan hitting on his flank and hips. Muhammad Tariq and Muhammad Munir accused fired with their rifle and gun at Fazal Muhammad hitting on his left side, right thumb, Palm of right hand and on right ear.
8. Muhammad Rafiq and Muhammad Javed, accused also fired one shot each hitting Imtiaz Hussain at his fore-head on his wrist, right hand, Muhammad Amzat fired two shots with his .12 bore gun on Noor Elahi hitting him on his right flank. Khalid Mahmood again fired two shots hitting Noor Elahi on his right chest Muhammad Tariq fired with his rifle at Fazal Dad hitting him on his right side of his head. Ikram Hussain also fired one shot at Fazal Dad hitting on his right side of his. Head.
9. Muhammad Akram continued firing from his kalashnikov and raising Lalkara to avoid and to create terror for others. Muhammad Iqbal, P.W. Raised hue and cry by standing on Takri nearby.
10. ' The alleged motive was that the accused in order to take revenge of murder of Karam Elahi on 12- 10-1988 from Muhammad Khan and Mirza Khan who had murdered Muhammad Bashir maternal uncle of Muhammad Ikram on 19-2-1989. The present offence was committed on the instigation and with consultation of Painda Khan paternal uncle of Muhammad Ikram, accused.
11. ' Muhammad Sibtain P. W. 27 on 19-5-1990 after receipt of the information of present occurrence arrived at the spot and recorded the statement of injured Muhammad Elahi P.W.21 Exh.PUU and sent the same for registration of case. Thereafter, he prepared the injury statements of injured Muhammad Elahi, Haji Noor Elahi, Fazal Dad, Habib Khan, Sabir Hussain Shah, Imtiaz Hussain, Khidmat Ali and Fazal Muhammad vide.- memo. Exhs.PXXX, PX, PY, PW, PR, PV, PU and PT respectively and got these injured medically examined through Dr. Muldnar Ahmad, P.W.2. Thereafter, he prepared the injury statement of deceased Haji Mirza Khan vide memo. Exh.P.M.M, his inquest report Exh.PNN; injury statement of Subedar Major Fazal Elahi, Exh.PJJ and inquest report Exh. PICK; injury statement of Sajjad Hussain Shah Driver Exh.PFF and inquest report Exh.PGG; injury statement of Manzoor Hussain Exh.PCC and inquest report Exh.PGG, injury statement of Liaqat Ali Exh. PZZ and inquest report Exh.PAA, and despatched the dead bodies for their post-mortem examination which was conducted by Dr. Asghar Hameed, P.W.1 Dr. Mukhtar Ahmed, P.W.2, Dr. Zhaid-ul-Hassan, P.W.3 and Ch. Muhammad ' Javed Anjum P.W.
4. The number of injuries received by the deceased were as follows:---{{TABLE}} Liaquat All 8 injuries, out of these Nos. 1,4,8 were fatal. Manzoor Hussain 15 injuries, out of these Nos.l, 9, 11, 15 were fatal. Sajjad Hussain 8 injuries, out of Shah these Nos.1,4,8 were fatal. Subedar Major 9 injuries, out of. Noor Elahi these Nos. 1,3,7 were fatal. Haji Mirza Khan 4 injuries, out of these Nos.1,5 were fatal. Fazal Dad 3 injuries, out of these Nos.2,3 were fatal. {{TABLE}} ' Muhammad Sibtian, P.W.27 also took into possession the blood-stained earth from the place of occurrence vide memo. Exh.PRRR, 77 empties of 12 bore gun, 29 of 7MM rifle, 15 of kalashnikov .12 of revolver 32-bore, which were taken into possession vide memo. Exh.PSSS. He also took into possession Suzuki LHN-1038 and bloodstained Tarpaal P.43 vide memo. Exh.PTTT. On 21-5-1990, Fazal Dad injured expired in DHQ Hospital, Rawalpindi whose postmoretm examination was conducted by Dr. Ch. Muhammad Javed Anjum. On 3-6-1990, Muhammad Rafiq, accused was arrested by Raja Akhtar Hussain P.W.28 while Ikram Hussain and Iqbal were also arrested by him on 5-6-1990 Ikram accused was arrested on 1-9-1990 and Muhammad Iqbal was arrested on 9-10- 1990 by Fida Hussain Shah P.W.29. Muhammad Azmat while in police custody got recovered .12 bore gun which was taken into possession vide memo. Exh.PBBB Khalid Mahmood accused got recovered .32 bore revolver vide memo. Exh.PCCC; Javed Sultan got recovered 7 mm rifle vide memo. Exh.P.DDD; Muhammad Altaf alias Tedi on 15-6-1990 got recovered .12 bore gun vide memo.
12. Exh.PEEE. Munir Hussain accused got recovered 12 bore gun vide memo. Exh.PFFF. All these recovery memos. Were attested by Ashiq Hussain, P.W.20 and Raja Akhtar Hussain, P.W.28. On 5-9-1990 Ikram Hussain, accused got recovered 12 bore gun vide memo. Exh.PQQQ; Muhammad Rafiq on 11- 6-1990 got recovered rifle vide memo. Exh.PUUU. Iqbal Hajam got recovered 7mm rifle vide memo.
13. Exh.PVVV. These memos. Were attested by Muhammad Iqbal, P.W.25 and Fida Hussain Shah, P.W.29.
14. After completion of the investigation, the challan was submitted. The accused denied the allegations and claimed the trial.
15. ' During the trial, the prosecution examined as many as 29 witnesses to prove the guilt of the accused.
16. ' Haji Muhammad Elahi, complainant was examined as P.W.21 he supported the version of the F.I.R.
17. And narrated the motive of the occurrence. Khidmat Ali was also injured witnesses of the occurrence, he was examined as P.W.22, who supported the prosecution case as narrated by the complainant. Sabir Hussain and Fazal Muhammad were also injured witnesses of the said occurrence, their statements are in line with the testimony of the complainant and other prosecution witnesses. Muhammad Sibtain, P.W.27, Raja Akhtar Hussain, RW.28 -id Fida Hussain P.W.29 had investigated the case.
18. ' The prosecution evidence was closed by tendering in evidence report of the Chemical Examiner Exh.PRRRR and that of Serologist Exh.PSSSS and of Technical Services Exh.PTTTT.
19. ' Muhammad Akram and Muhammad Tariq accused had absconded and their trial was conducted in absentia. During the pendency of the appeal Khalid Mahmood and Muhammad Tariq, accused expired in jail, therefore, appeals to their extent stand abated.
20. ' Learned counsel for the appellants has argued that admittedly statement Exh.PUUU was recorded at the spot, therefore, presumption is that the case was registered after deliberation and consultation and specific injuries have been attributed to all the accused separately which is not possible; that the injured witnesses have admitted themselves that they left the vehicle when it was plunged into mud, thereafter, it was not possible to witness the location of the injuries being inflicted by the accused on a victim; that the enmity is admitted and the motive is double-edged weapon which can also be used for false implication; that the complainant party and the deceased had other enimies, therefore, the possibility of false implication of the appellants and substitution cannot be ruled out; that the witnesses are closely related inter se and inimical towards the appellant, their statements have not been corroborated from any independent source.
21. ' Conversely the appeal has been opposed by the learned counsel for the complainant and for the State.
22. ' Heard. Record perused.
23. It was a daylight occurrence. The parties knew each other. All the appellants have been attributed specific role of having caused injuries on the deceased and to the injured witnesses; the complainant Muhammad Elahi P.W.21, Khidmat, P.W.22, Sabir Hussain, P.W.23 and Fazal Muhammad P.W.24 all are the injured witnesses, therefore, their presence at the spot cannot be doubted; they have ascribed specific injuries having been caused by the appellants. The ocular account has been fully corroborated by medical evidence and the recoveries of weapons of offence. All the appellants are nominated accused in the promptly lodged F.I.R.; no reason for their false implication or substitution has been found, therefore, we are of the considered view that the prosecution has established its case against all the appellants beyond any shadow of doubt and find no ground for interference in the conviction recorded against them under section 302/34, P.P.C.
24. ' As far as the quantum of sentence is concerned, Javed Sultan and Khalid Mahmood have been attributed fatal injuries to Liaqat Ali, deceased; Muhammad Rafiq and Ikram Hussain, accused have been attributed fatal injuries at Fazal Elahi, Muhammad Rafiq has also been attributed fatal injury at Mirza Khan, therefore, their sentence of death is maintained. However, Azmat, Munir, Iqbal and Altaf alias Tedi have not been attributed fatal injuries on the deceased, so their sentence is reduced to imprisonment for life which will meet the ends of justice. The sentence of all above mentioned accused under section 307/34, P. P.C. For causing injuries to the prosecution witnesses is maintained. The sentence will run concurrently. Punishments of fine/ compensation or in default of payment thereof are maintained. Benifit of section 382-B, Cr.P.C. Will also be available to the appellants.
25. ' As far as criminal Appeal No,15 of 1991 of Muhammad Akram is concerned, his trial was conducted in absentia and following the dictum laid down in Mehram Ali's case (PLD 1998 SC 145) his appeal is allowed. His conviction and sentence is set aside. The case is remanded for his retrial to the Court of competent jurisdiction, with the direction to conclude the trial within a period of six months.
26. Meanwhile, he will remain in jail, but will be taken out from the Death Cell ' Criminal Revision No,161 of filed by complainant against acquitted co-accused is dismissed having no force.