1. ' KHAWAJA MUHAMMAD SHARIF, J.---this judgment will dispose of Criminal Appeal No,144/J of 2000 filed by Shabbir Hussain and Abdul Rauf, appellants through jail and Criminal Appeal No,145/J, of 2000 tiled by Ghulam Rasool and Abu Bakar, appellants through jail who were Convicted and sentenced by Judge Special Court No,11 (ATA) Gujranwala vide judgment dated 3-7-2000 as under:-- ' Ghlam Rasool and Abu Bakar appellants:-- ' Death (on two counts) and to pay compensation of Rs,50,000 (on two counts) each, in default-R.I.
2. For. One year under section 302/34, P.P.C. For committing the Qatl-i-Arnd of Ashraf Marth and Tabassum Zameer, Life imprisonment (on two counts) with further direction to pay Rs,50,000 as compensation, in default R.I. For one year each under section 120-B/34, P.P.C.
3. 10 years' R.I. And to pay compensation of Rs,50,000 each, in default R.I. For one year under section 324/34, P.P.C.
4. ' Shabbir Hussain and Abdul Rauf, Appellants:- ' Imprisonment for life (on two counts) with further direction to pay Rs,50,000 (on two counts) as compensation, in default R.I. For one year under section 120-B/34, P.P.C. With the benefit of section 382-B, Cr. P .0 .
5. ' Murder Reference No,630/T of 2000 for confirmation of death or otherwise shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 8-20 a.m. On 6-5-1997 at a distance of 1 furlong from Police Station Civil Lines, Gujranwala while the matter was reported by Tariq Javed through written complaint Exh. PA at 8-45 a.m. The same day and the formal F.I.R. Exh.PA/1 was recorded by Munir Hussain, Head Constable.
3. Briefly stated that facts of the case are that on 6-5-1997 at 8-20 a.m. Muhammad Ashraf Marth S.S.P. By Jeep which was being driven by Tabbasum Zameer H.C. Started from his house for office while the complainant and his companion Shakeel Ahmad, FC were on the Pillion seat of the Jeep took a turn towards D.C. Road, all of a sudden three unknown persons came there on a motorcycle.
6. Two of them were armed with Kalashnikov. They started firing from the front and right side of the Jeep. Due to this firing Muhammad Ashraf Marth and Tabassum Zameer driver lost their lives while Shakeel, F.C. Received injuries on his legs.
7. ' The motive behind the present occurrence was that Muhammad Ashraf Marth being threatened by Moulana Muhammad Azim Tariq and Riaz Basra for his murder and this incident took place at the instance and abetment of above said Azam Tariq and Riaz Basra.
4. After registration of the formal F.I.R., investigation of the case was taken over by Muhammad Azam, S.I. P.W. 26, Since the injured persons had been shifted to hospital, he reached there, prepared injury statement of Shakeel, F.C. Exh. PDD; also prepared. Injury statement Exh. PN/3 and inquest report Exh.PN/2 ir.'respect of dead body of Muhammad Ashraf Marth, injury statement and inquest report Exh. P0/3 and Exh.PO/2 were prepared with regard to dead body of Tabassum Zameer, the injury statement Exh. PR/2 was also prepared qua the injuries on the person of injured Tariq Javed on the same .Day, i,e, 6-5-1907, the Investigating Officer innected the place of occurrence, took into possession bloodstained earth vide memo. Exh.PD and Exh.PC respectively from the places where Muhammad Ashraf Marth and Tabassum Zameer were injured; broken pieces of glasses, blood-stained were secured from the official vehicle through Exh.PE; 40 crime empties of kalashnikov were secured from the place of occurrence vide memo. Exh. PF; the official Jeep of the late S.S.P. Was taken into possession vide memo. Exh. PH; an empty cement bag P.17 allegedly left by the accused was secured vide memo. Exh PJ; on 7-5-1997 the I.O. Made a query Exh. PEE from the medical officer about the fitness of injured Shakeel for recording his statement and the medical officer vide his opinion opined that he was fit to make the statement; accordingly his statement was recorded under section 161, Cr.P.C. On 27-5-1997, he arrested Abdul Rauf, Qari Shabbir Hussain, Muhammad Umair (PO) and Qari Muhammad Ishaque; obtained their personal remand; on 3-6-1997 Abdul Rauf while in custody led to the recovery of diary. R.32 and pamphlet P.33 which were taken into possession vide memo. Exh.P; on the same day Uzair accused (now PO) got recovered cycle P.27 which was secured vide memo. Exh. PX; similarly, Shabbir Hussain accused led to the recovery of cricket bag P.34 alongwith_ two klashnikovs and live bullets which were taken into custody vide memo. Exh.PW; warrants of arrest of Syed Ghulam Rasool, Shakeel Anwar, Sana Ullah, Abdul Haq and Muhammad Riaz and after completion of the remaining formal investigation on 13-6-1997 submitted incomplete challan. This case was also investigated by Muhammad Farooq, D . S . P . (P .W . 27), Shah Elahi , S . -I . (P. W. 28) Tassadaq Hussain, Inspector (P.W.25).
8. Tassadaq Hussain, Inspector interrogated Ghulam Rasool Shah who told the place from. Where P.W.25 recovered kalashnikov P.29 which was taken into possession vide memo. Exh.PS and got registered a case under the Arms Ordinance against Ghulam Rasool and prepared the challan in the Arms case.
5. At the trial, prosecution in order to prove its case produced 30 witnesses in all and also produced Tariq Mahmood Cheema as C.W. I. The learned S.P.P. Tendered in evidence reports of the Chemical Examiner (Exhs.PFF and PFF/1) reports of the Serologist (Exh.PGG and Exh.PGG/1), ,report of the Forensic Science Laboratory (Exh. PHH) and closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.C..In which they pleaded false implication.
9. However, after conclusion of the trial, the appellants were convicted and sentenced as stated above.
6. Learned counsel' for appellants namely Ghulam Rasool Shah and Abu Bakar after having read the entire prosecution evidence and other material available on record submits that Ghulam Rasool Shah and Abdu Bakar alias Usman convict appellants were not given the valuable right of cross-examination in a case of capital punishment; none of the appellant was named in the F.I.R.
10. Even the description of the accused was not given in the F.I.R.; Tariq Javed who being gunman was also sitting with the accused duly armed did not use the same; though Shakeel was an injured witness but he was not joined during the identification parade; Tariq Javed P.W. Has not signed any recovery memo; the motorcycle allegedly used by the accused person at the time of commission of offence was a plantation because according to the prosecution the said motorcycle was taken into custody by the Police of Sheikhupura district; the other version of the prosecution was that the motor cycle was lying on the road and the same was secured while the third stance was that the said motorcycle was taken into possession when some accused were intercepted by the Police and they ran away after leaving the motorcycle; the motor cycle was allegedly recovered on 7-5- 1997, that is, the next day of occurrence; no witness to prove the recovery of said motorcycle was produced before the trial Court; 22 witnesses were given up as unnecessary but none of the witness was given up as having been won over; though the occurrence had taken place on 6-5- 1997 while Ghulam Rasool appellant was formally arrested in this case on 2-10-1999, the identification parade took place on 28-1-1998 though application for identification parade was submitted on 2-1-1998 with regard to identification of Abu Bakar, appellant; Ghulam Rasool, appellant was arrested from Faisalabad on 16-7-1997 but his formal arrest was shown ' as 2-101999, P.W.3 and P.W.4 identified Ghulam Rasool, appellant on 1-9-1997; identification parade was held by P.W.15 but the arrest of Abu Bakar was shown as 2-10-1999. Muhammad Azam Tariq was named in the F.I.R. But he was neither arrested` or challaned by the Police; the other accused namely Riaz Basra though was named in the F.I.R. But was not arrested being a PO; the kalashnilcov-in fact was planted on Ghulam Rasool on 2-10-1999 because he never led the Police to the place of recovery as he was in jail at that time; Ghulam Rasool was acquitted in the case under Arms Ordinance by the learned trial Court; no recovery was effected from Abu Bakar appellant when no counsel was representing Ghulam .Rasool and Abu Bakar, appellants; it was incumbent upon the trial Court to have put the questions himself to the P.Ws. And if the convicts had not produced their counsel then the. Trial Court should have provided a counsel at State expense; the main purpose of the Court is to advance the cause of justice but the prosecution has failed to do the same; Muhammad Naveed P.W.17 had made a telephonic call to S.S.P., Gujranwala and gave his wrong name as Riaz and told the deceased S.S.P. That the terrorist were around him: Tariq Mahmood Cheema was examined as C.W.1 to fill up the lacunas in the case of the prosecution; Muhammad Hand P.W.4 the eye-witness is a chance-witness; he had no business to be present at the spot; he seems to be a stock witness of the Police; the identification parade of Abu Bakar was held by Malik Niaz Ahmad, Magistrate (P.W.I3); the investigation of this case smacks of padding; the identification parade is of no consequence because the witnesses of the identification parade did not make a statement before the learned Magistrate about the roles played by the accused persons at the time of occurrence; the accused at the time of identification parade had raised .The objection that their photographs and video films were already prepared; in fact the appellants have been convicted for their demeanour and that in =fact the prosecution has been miserably failed to prove its case against the appellants.
7. Learned counsel for Abdur Rauf and Shabbir convict appellants submits that the evidence of conspiracy is not believable; so far as Sana Ullah and Uzair accused are concerned, Muhammad Shafique (P.W.18) stated that they had pointed towards the jeep of the S.S.P. Asking Ghulam Rasool and Abu Bakar convicts who were on the motorcycle which was being driven by Abu Bakar and Ghulam Rasool was sitting on the pillion seat; there is no evidence on record to connect the appellants with the commission of the alleged offence; recovery 'memo. Exh.PAA and Exh.PBB in fact belongs to case F.I.R. No,32 of 1997 registered at Multan and these memos. Were about Abdul Manan accused; occurrence had taken place in that case in Khana-e-Farhang Iran at Multan, according to the site plan, the eye-witnesses could not identify the assailants when they were firing because the said witnesses were ahead from the accused persons who were firing on the jeep, there was no reason to kill the S.S.P. Because there was no motive for the same on the part of the appellants; Tariq Javed P.W.3 could not have identified the assailants at the time of occurrence because the occurrence had taken place with a twinkle of eye; Muhammad Shafique (P.W.18) had not joined the identification parade; he had not identified the accused in the Court and he had never seen Sana Ullah and Uzair at the spot as one of them absconded after being released on bail and the other was killed' in a Police encounter; Muhammad Naveed P.W.17 was a tutored witness; C.W.1 Tariq Mahmood Cheema was called by the trial Court to seek corroboration from him to the statement of Naveed PW: story of conspiracy is not believable that the accused persons would not conspire for the murder of S.S.P. Ashraf Marth in the presence of Naveed PW; alleged conspiracy took place at 7-30 a.m. In the house of Shabbir appellant, the occurrence took place at 8-20 a.m., though Muhammad Azam, Investigating Officer (S.-11S.H.O. (P.W.25) reached at the spot at 8-30 a.m. But neither Ghulam Hussain nor Muhammad Hanif P.Ws. Appeared before him; Muhammad Tariq was medically examined at 8-50 a.m. In the hospital while the Fard Bayan was completed at 8-45 a.m.; according to the learned counsel how a person can be a present at two places; till 11-5- 1997 the assailants of Ashraf Marth and Tabasum Zameer were not known; it is not safe to rely upon the identification parade; the identification parade is a weak type of evidence; the injuries on the person of Tariq are self-suffered; that the prosecution itself gave an application before the trial Court for the Superdari of the jeep and got the same repaired, so the prosecution itself destroyed the evidence, Ghulam .Hassan given up and Muhammad Hanif P.W. Could not have seen or identified the accused persons at the time of firing; Shakeel P.W. Did not state that the accused persons who were on a `which had a cement bag with them from which they had taken out kalashnikov; from the spot 40 crime empties were taken into possession alongwith three mutilated bullets vide memo. Exh. PG; these empties were sent to the Fire Arms Expert on 12-5-1997 while the report of the Fire Arms Expert is dated 7-10-1999 after the recovery of kalashnikov from Ghulam Rasool Shah; ammunition belonging to the Police officials which was recovered from the jeep was not sent to the Fire Arms. Expert: it was incumbent upon the prosecution to have sent the same; the prosecution itself by submitting an application for Superdari moved by the Moharrir to the trial Court got the ammunition from the trial Court; even led bullets recovered from the bodies of the deceased were not sent to the Fire. Arms Expert; according to prosecution case, 4 kalashnikovs were used in the occurrence, two belonging to Police officials and two from accused persons but nothing was recovered from the other accused who was not arrested; Tariq Javed P.W. Had not signed any recovery memo., the site plan with scale was prepared only on the pointation of Muhammad Hanif P.W.; the statement of Muhammad Hanif and Ghulam Hassan P.W. (not produced) under section 161, Cr.P.C. Were ditto, copy of each other; these two witnesses are chance witnesses; there are material contradictions in the statements of Muhammad Hanif and Shakeel P.Ws., Muhammad Hanif P.W. Had identified the motorcycle 2 years and 5 months after the occurrence; in fact he is a stock witness of the Police; though the motor cycle was recovered on the next day of occurrence but was identified 2 years and five months thereafter, the complainant mentioned only about the motorcycle but no details were given by him; Muhammad Hanif P.W. Did not state anything about the motorcycle; the conduct of Tariq Javed complainant at the time of occurrence was most unnatural as he, did not fire a single shot on the assailants of two deceased persons; in fact he should have been charged for misconduct; F.I.R. Was recorded after due deliberation and consultation; though the P.S. Was at a distance of 220 yards but the F.I.R. Was not prompt; beside Muhammad Naveed P.W.17 Nazir and Akbar were also the witnesses of conspiracy but were not produced; Naveed P.W. Has not taken the names of Akbar and Nazir in his statement before the trial Court; Naveed alongwith other witnesses was taken to MuI= to join the identification parade of Ghulam Rasool Shah; Naveed P.W.- did not go to the house of deceased S.S.P. Himself to tell him that conspiracy had been hatched against him but he made a telephonic call and did not tell his name as Naveed but Riaz.
11. ' So far as motive is concerned, learned counsel submits that it was furnished orally by Mirza Maqbool Baig, D.S.P. P.W.24, stated that he was posted at Multan while the deceased S.S.P. Was there and that the deceased was supervising the investigation of Khana. Furhang case at Multan but the prosecution has failed to produce any documentary evidence that the deceased S.S.P. Had been receiving threats, the evidence of motive is hearsay, prosecution failed to prove any evidence from Multan regarding motive.
12. ' With regard to investigation, learned counsel submits that the investigation of this ease went on for 2 years and six months, crime empties remained lying with the Forensic Science Laboratory for two years and six months, Tassadaq Hussain, Inspector P.W.25 allegedly recovered the kalashnikov when Ghulam Rasool appellant was in Jail but according to the prosecution he made a disclosure in the Jail before P.W.25 that after the murder he had concealed the kalashnikov which was used in the occurrence and was allegedly recovered from the pointed place separate challan under Arms Ordinance was submitted 'against Ghulam Rasool but he was acquitted; appeal against acquittal in that case was dismissed by this Court, Malik Ishaq (acquitted accused) and Ghulam Rasool convict were arrested by P.W.25, he conducted investigation under Arms Ordinance, submitted the challan on 13-10-1999 and also placed on record report of the Forensic Science Laboratory which is dated 29-10-1999, how he could have placed the report of 29-10-1999 on the record of challan which was submitted on 3-10-1999 and that there is no evidence whatsoever on_ record to connect the appellant with the alleged commission of offence. According to learned counsel the appellants have been falsely involved by the police to show its efficiency. Concluding his submissions learned counsel submits that the prosecution has miserably failed, to prove its case against the appellants and the appellants are entitled to acquittal.
13. ' On the other hand, Miss Yasmeen Sehgal, learned Assistant Advocate-General submits that it is a case of high profile terrorism; in such-like cases nobody comes forward to join the investigation or become. a witness at the risk of his own life; the statement of Naveed P.W. Was recorded on the same day, she has read before us the statement of Naveed P.W. Under section 161 Cr.P.C. At page 386 of the paper book and has also drawn our intention to the statements of P.W.6 and P.W.7; the diary Exh.P.2 recovered on the pointation of Abdul Rauf convict is most important document and links the, chain apart from being an incriminating document; mere acquittal of Ghulam Rasool appellant in the case under Arms Ordinance does not mean that he is not involved in the murder ease of deceased S.S.P., on a Court question the learned A.A.-G. Submits that Sana Ullah who was shown to be a P.O. In the instant case was killed in a police encounter and in that regard a case vide F.I.R. No,221 was registered on 13-4-1999 with Police. Station Factory Area District Sheikhupura; the learned Law Officer has taken us through the site plan Exh.PT/1 and has shown us the various points; according to site plan one of the accused has been shown at point H on the northern side while the other accused have been shown on the southern side of the site plan; the jeep has been shown at point N, the deceased S.S.P. Was sitting at point A while the deceased driver was sitting at point D and other gunman was sitting at point E, both the persons sitting at points A and C later on became deceased namely Muhammad Ashraf Marth S.S.P. And Tabasum Zameer the driver who was driving the jeep, from point F' Muhammad Hand and Ghulam Hassan P. Ws. Have themselves witnessed the occurrence, Shafique P.W. Has been shown at point G, point J is the place where Sana Ullah and Uzair had given a signal to the three accused persons who were on motorcycle, learned A.A.-G. Submits that after hearing the noise of firing it was natural that the eye-witnesses would have turned their faces towards the place from where the noise was coming; Ghulam Rasool and Abu Bakar appellants were arrested in Khana-e-Farhang case and in that case identification parade was very essential and recoveries were to be made; the day in holding the identification parade occurred due to their identification parade in Multan case; both these accused were identified in that case, they remained on remand; recoveries were effected and only thereafter the formal arrest of Ghulam Rasool Shah and Abu Bakar was shown in the instant case; the identification parade in the instant case was held on 1-9-1997 and 8-9-1997 while in Multan case, the same was held at Multan by the same learned Magistrate who was examined as PW 15; in such-like cases the identification parade is very difficult; it is always standard objection of the accused that they were shown to the PWs prior to the parade and that in the instant case the identification parade. Was in accordance with Rules and Orders of the High Court, motive has been fully proved through Mirza Maqbool Baig D.S.P. P.W.24; the deceased being S.S.P. Of the District Multan was supervising the investigation of Khana-e-Farahang case and moreover it is not possible that a person who gets threats to his life should create evidence; the conduct of the accused was very evasive before the trial Court; they despite many opportunities did not produce their counsel rather wanted the Court to proceed according to their whims; as to objection of not providing the opportunity of cross-examination of some PWs is concerned, that has no legs to stand as the accused even after direction by this Court did not cross-examine the witnesses; it was a case of honest and fair investigation because had there been any malice or mala fide on the part of the Police, they could have easily attributed shots to Abu Bakar appellant; non challenging of Maulana Muhammad Azam Tariq sufficiently depicts that no innocent persons was involved in the case; so far as Ghulam Rasool and Abu Bakar appellants are concerned, there is direct evidence of the eyewitnesses coupled with the recovery of fire arms and matching of the crime empties with recovered weapons, the presence of Abu Bakar, appellant at the time and place of occurrence has been proved beyond any shadow of doubt and section 34, P.P.C. Is fully applicable and that the prosecution has been successful in proving its case against the appellants to its hilt.
14. Concluding her submissions, learned A.A.-G. Submits that the learned trial Court was right in convicting the appellants and the conviction may be maintained.
15. ' We have heard learned counsel for the parties at great length and have gone through the entire record. Before proceedings with the case, it may be noted that as a whole 6 accused, namely, Malik Muhammad Ishaque (since acquitted), Ghulam Rasool Shah, Abu Bakar alias Usman (both convicts) Ishaque son of Muhammad Amin (since acquitted) Shabbir Hussain and Abdul Rauf (both convicts) were tried by the learned trial Court. Maulana Muhammad Azam Tariq though was named in the' F.I.R. But was never challaned while Riaz Basra was shown as absconder. Similarly, Abdul. Haq, Muhammad Riaz and Sana Ullah were shown as P.Os. While Uzair who was on bail also absconded and was declared as P.O.
16. ' First of all we would deal with the legal objection raised by learned defence counsel that no right of cross-examination was given to Ghulam Rasool Shah and Abu Bakar alias Usman, the convict appellants. In the instant case. The attitude of the accused was that they tried their level best to make hostage of the trial Court. They were adamant in their attitude towards the Court and these facts are proved from the interim orders passed by the learned trial Court on different dates of hearing, the details of which are given as under. On 29-11-1999 the six accused persons who were tried by the learned trial Court refused to get copies of the statements as required by section 265- C, Cr.P.C. Same was the position of the accused on 7-12-1999. Even this position prevailed on 14-12- 1999 and the learned trial Court observed that the accused were doing all this intentionally. The case was then adjourned to 22-12-1999 -12-1999 for framing of the charge. On the said date, the accused persons refused to sign the charge-sheet. Again the case was adjourned to 5-1-2000 on which too charge could not be framed because the accused requested for time to engage counsel. This position prevailed on 13-1-2000 and also on 20-1-2000 but the accused did not engage any counsel. .0n the next date of hearing, i,e,, 22-2-2000 the accused persons got the copies as required under section 265-C, Cr.P.C. And the case was adjourned for framing of the charge on 9-2-2000. On that date, the accused persons submitted an application for adjournment on the ground that they wanted to consult with each, other. Accordingly, the trial was postponed to 29-2-2000. Malik Muhammad Ishaq (since acquitted), Ghulam Rasool Shah and Abu Bakar convict appellants did not engage their counsel while Mr. Abdul Hameed Butt, Advocate appeared on behalf of Shabbir Hussain, Abdul Rauf convicts and Ishaq son 'of Muhammad Amin since acquitted.
17. On that date, the trial Court also appointed Mr. Abdul Hameed Butt, Advocate on behalf of abovesaid three accused, who had not engaged their counsel. The PWs were also present on the said date and the accused persons submitted an application that no charge under sections 6/7 of the Anti-Terrorism Act, 1997 could be framed against them. On 7-3-2000 arguments from both the side were heard and the case was adjourned to 9-3-2000 for announcement of the judgment on the said application. On 9-3-2000 the applications moved by the accused were dismissed. The trial 'Court in order to provide defence counsel to the accused persons, who had not engaged their counsel, appointed Mr. Muhammad Ameer Khan Niazi and Mr. Zafar Chandio, Advocate from Sargodha. On 14-3-2000 the said two counsel did not turn up from Sargodha and they were summoned through letter for 16-3-2000. On 16-3-2000 both the Advocates from Sargodha appeared but the accused namely, Ghulam Rasool Shah, Abu Bakar alias Usman, the convicts and Muhammad. Ishaq (since acquitted) refused to consult them and submitted that they wanted to engage counsel on their own choice, .So the two above said Advocates were relieved from their duty. The learned trial Court ordered that the accused persons should engage their counsel before 27-3-2000 and in case of failure they would have to cross-examine the witnesses themselves. On 27-3-2000, two eye-witnesses were present but Mr. Abdul Hameed Butt, Advocate was not present due to demise of some Senior Advocates in Gujranwala. On that date, three accused stated that they wanted to engage Mr. Pervaiz Aftab and Sarfraz Hussain Dogar, Advocates from Multan. The learned trial court. Observed that if the above said two Advocates would not turn up then Mr. - Abadat Ali Malik and Mr. Karamat Ullah Mufti, Advocate would defend them. The case was adjourned to 4-4-2000 but the said two learned two Advocates, namely, Pervaiz Aftab and Karamat Ullah Mufti refused to defend the three unrepresented accused. Accordingly, Mr. Abadat Ali Malik and Mr. Karamat Ullah Mufti, Advocates were appointed to act as defence counsel on behalf of Ghulam Rasool Shah, Abu Bakar alias Usman the convicts and Muhammad Ishaq (since acquitted). On 7-4-2000 all the counsel were present but the accused misbehaved with them and stated that they were their enemies upon which both Mr. Abadat Ali Malik and Mr. Karamat Ullah Mufti, Advocates left the Courtroom while Mr. Abdul Hameed Butt, Advocate also did the same act because Muhammad Ishaq son of Amin (since acquitted), Shabbir and Abdul Rauf convicts refused to get the services of Abdul Hameed Butt, Advocate. On the said date, the accused persons submitted before the trial Court that they did not want to engage their counsel themselves or through, State or at State expense and if any necessity arose then they would cross-examine the witnesses themselves. Two witnesses were examined but nobody cross-examined them.
18. Ultimately, the prosecution evidence concluded on 10-5-2000 and the Special 'Public Prosecutor made a statement in this regard on 18-5-2000. On 27-5-2000 the accused persons refused to make statements under. Section 342, Cr.P.C. They submitted two different applicatiops. Qari Muhammad Ishaq (since acquitted), Shabbir Hussain and Abdul Rauf submitted the application that they would like to have the services of Mr. Karamat Ullah Mufti and Mr. Manzoor Ahmad Khokhar, Advocate and they should be allowed to see their parents. The trial was postponed to 7- 6-2000, on which date, the learned S.P.P. Gave a telephonic call to the learned trial Court from Lahore that Muhammad Ishaq, Shabbir Hussain and Abdul Rauf convicts have filed a petition in the High Court seeking direction to the trial Court to allow the accused the opportunity to cross- examine the witnesses. The petition in the High Court bearing Criminal Miscellaneous No,1120/M of 2000 titled as Qari, Muhammad Ishaq and others v. Ch. Muhammad Shafique etc was finally disposed of on 14-6-2000. The operative part of order passed in above noted Criminal Miscellaneous petition is reproduced below:-- "Consequently granting the petition the petitioners are allowed to cross examine all the prosecution witnesses hitherto examined in addition to recording their statements within the contemplation of section 342-B (ibid) as well as to lead evidence in defence if so deem appropriate within 7-working days proceedings with the case day-to-day without seeking adjournments, which facility the co accused can also avail." (Under,lining is ours)
19. ' The learned trial Court in view of the order passed by the High Court directed the accused that they should produce their counsel on 24-6-2000 as directed by the High Court. Qari Muhammad Ishaq (since acquitted), Shabbir Hussain and Abdul Rauf convicts appointed Mr. Manzoor Khokhar as their counsel while other accused namely, Malik Ishaq (since acquitted), Ghulam Rasool Shah and Abu Bakar requested the trial Court to appoint Sardar Muhammad Latif Khan Khosa and Sahibzada Farooq Ali, Advocates at State expense. That application was dismissed. Mr. Manzoor Ahmad Khokhar and Mr. Abdul Hameed Butt, Advocates cross-examined nine witnesses. The trial Court also observed that according to the order of High Court dated 14-6-2000 the accused were bound to appoint their counsel but they did not. On 26-6-2000, 11 witnesses were cross-examined by three represented accused and the case was adjourned to 27-6-2000. On that date, Muhammad Naveed, Afzal Latif and Irshad Mohy-ud-Din Magistrates PWs were present but Shabbir Hussain, appellant submitted another application that he had to engage some other counsel and requested for adjournment and the learned trial Court in the interest of justice adjourned the case and ultimately on 3-7-2000, the impugned judgment was pronounced.
20. ' An analysis of the abovesaid interim orders of the learned trial Court would show that the Court tried his best to accommodate Ghulam Rasool Shah and Abu Bakar convicts appellants and provided them counsel. They did not even appoint the counsel of their own choice and also refused to get the services of the counsel appointed by the learned trial Court. They also misbehaved with the counsel and refused to consult them. In fact they have tried their level best to make hostage of the learned trial Court. The learned trial Court had been dealing with the accused in a very polite and lenient manner and had been adjourning the case on many dates of hearing. The actual intention of the accused was to prolong the matter as long as they could. The accused even did not comply with the order passed by the High Court on 14-5-2000 in Criminal Miscellaneous No,1120/M of 2000. It may be observed that the Presiding Officer has to regulate the Court proceedings himself and not to play in the hands of unscrupules litigants rather to be at the mercy of the accused. If the practice which has been adopted by the accused in the instant case before the learned trial Court is allowed to be unchecked, it would become a precedent and would also be a step to lower the dignity, the honour and the command which a Court enjoys. We disapprove this practice and have no hesitation in giving no weight to the objection raised by learned counsel for the appellants with regard to allegedly depriving Ghulam Rasool Shah and Abdu Bakar alias Usman appellants from the opportunities to cross-examine the witnesses.
21. ' Now, we would take up the merits of the case. Occurrence in this case had taken place on 6-5- 1997 at 8-20 a.m. In the broad daylight. The matter was reported to the Police through complaint Exh.PA by Tariq Javed FC an injured P.W. At 8-45 a.m. And the. Formal F:I.R. Exh.PA/1 was recorded at 8-55 a.m. The same day. One of the accused who had committed the murder of the deceased S.S.P. And his driver namely Tabasum Zameer were named in the. F.I.R. Except two accused namely Maulana Muhammad Azam Tariq and Riaz Basra. So, it was a case of promptly lodged F.I.R. Both these persons were named as accused of abetment and conspiracy.
22. The motive given in the F.I.R. Was that S.S.P. After his posting from Multan to Gujranwala used to mention about the threats which he was receiving from Sipah-e-Sahaba and also apprehending harm to his person from Maulana Muhammad Azam Tariq and Riaz Basra. The motive was proved from the statement of Mirza Maqbool Baig, D.S.P. (P.W.24). His statement is at page 118 of the paper book. He had stated that while being posted at Mullah, the deceased S.S.P. And he were supervising the investigation' of case F.I.R. No,32 of 1992 under section 302 P.P.C., etc. Registered with Police Station Kotwali District Multan with regard to an occurrence having taken place in Khan-eFarhang Iran, Multan. Malik Ishaque (since acquitted) and Ghulam Rasool Shah convict alongwith others were challaned in that case. Exh. PAA was the recovery memo. Of the said case. That recovery memo. Was also attested by DSP Mirza Maqbool Baig. P.W.24. Thereafter, the deceased S.S.P. Who had been supervising that investigation was transferred to Gujranwala. Opportunity to cross- examine this witness was given to the defence on 2-5-2000 but none of the accused cross- examined him. In the light of the order of the High Court dated 14-6-2000 passed in Criminal Miscellaneous No,1120/M of 2000, this witness was re-summoned but no cross-examination was conducted on behalf of the accused. The law is that when a witness is not cross-examined by the defence despite opportunity, the statement of the witness made in examination-in-chief will be treated and admitted as correct. In our considered .View, the prosecution has been successful in proving the motive in this case.
23. ' Besides the two deceased there were two injured eye-witnesses namely Tariq Javed complainant and Shakeel Ahmad, the gun man. None of the eye-witnesses who appeared before the trial Court had any animus against the present appellants. The investigation was very fair. It was not carried out with malice mind because had any malice been there, then the names of the appellants and acquitted accused must and could have been mentioned in the F.I.R. The names of the main accused came into the knowledge of Muhammad Azam S.-I./S. H.O./Investigating Officer (PW.26) on the same day through the statement of Muhammad Naveed P.W.17. If one goes through the statement of Muhammad Naveed PW recorded under section 161Cr.P.C. On the day of occurrence which is Exh. DC and is at page 386 of the paper book proves that all the details of conspiracy were mentioned therein where names of the accused persons were also mentioned. Muhammad Naveed P.W.17 stated before the trial Court that on .6-5-1997 at 7-30 a.m. He was present in the house of Shabbir Hussain appellant. At that time, accused Qari Abdul Razzaq, Qari Muhammad Ishaque, Hafiz Abdul Haq were present there. Four persons arrived there and one of them inquired from accused Shabbir Hussain about him (Naveed) who replied that do not worry he was their person. The said man asked the abovenamed accused to provide them the arms for committing the murder of S.S.P. Ashraf Marth and the said man went outside. Accused Shabbir Hussain then divulged that he was Muhammad Riaz Basra, P.O. Shabbir Hussain brought a kit bag and he got two kalashnikovs out of it and then packed it in our empty cement bag and he handed over the said bag to accused Ghulam Rasool Shah, Abu Bakar and Shakeel Anwer. Then Shabbir Hussain placed the cricket bag with extra magazine in the adjoining room. The three accused in the meanwhile rode away on motorcycle. After few minutes he came out of the room and contacted S.S.P. On telephone and told his name as Riaz and also informed that terrorists were there to commit his murder. He then proceeded to city and came to know that S.S.P. Ashraf Marth had been murdered. He reached at the place of occurrence and made statement before the Investigating Officer on the same day. This witness also joined -the identification parade in central jail, Multan on 1-9-1997 wherein he correctly identified Ghulam Rasool Shah appellant. Then on 28-1-1998, he again joined the identification parade held in District Jail Multan and identified accused Abu Bakar alias Usman. He also identified them in the Court. This witness further stated that when he was present in the house of Shabbir Hussain on the day of occurrence it was inquired by the accused from Shabbir Hussain about Sana Ullah and Uzair, accused and the reply given was that they had gone to the place of occurrence in order to watch the S.S.P. The statement of this witness was recorded on 27-4-2000 by the trial Court. Opportunities were given to the accused but they did not cross-examine the witness. Again in the light of order of the High dated 14-6-2000, he. Was cross- examined at great length by Mr. Abdul Hameed Butt and Mr. Manzoor Ahmad Khokhar, Advocates on behalf of accused Qari Ishaq, Abdur Rauf while Mr. Ibadat Ali Malik, Advocate cross-examined the said witness on behalf of Shabbir Hussain accused. This witness was put to lengthy cross- examination. Explanations were also brought by the. Defence counsel as to his relationship with the accused Shabbir in whose house the conspiracy was hatched and he explained the same. Not a single word has come on record that this witness had any animus against the appellants. He had no relationship either with the deceased or the injured PWs. He was the most independent witness.
24. He was so frightened that his presence was procured through non-bailable warrants because in such-like cases, nobody dares to come forward to depose the actual facts at the risk of his own life.
25. This witness has also avoided some questions but that was for the reason to save his life. His evidence is of worth credence. It has come from unimpeachable source. In our view the prosecution has fully proved the abatement and the conspiracy against the appellants.
26. Now we take up the eye-witness account. Shakeel Ahmad FC is P.W.1 Tariq Javed FC (complainant) is P.W.2. Both these witnesses were the gun men of the 'deceased S.S.P. They were sitting in the same jeep in which both the deceased were travelling. They are also injured eye-witnesses. Their presence at the spot cannot be doubted. They have fully implicated the appellants namely Ghulam Rasool Shah and Abu Bakar alias Usman through they had no animus against them. Tariq Javed PW had also identified both these appellants during the identification parade held in jail. As far as non-participation of Shakeel Ahmad PW in the identification parade is concerned, it may be stated that he had identified the convict appellants before the trial Court at the time of trial. In the case of Muhammad Yousaf Zai v. The State (PLD 1988 Karachi 539) a Division Bench of the Sindh High Court observed as under:- "We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If the eye-witnesses can identify the accused before the trial Court, that is enough."
27. ' Both the injured eye-witnesses namely Tariq Javed and Shakeel Ahmad were medically examined on 6-5-1997 by Dr. Abdul Aziz Tarar (PW.10). The injuries on the person of Shakeel Ahmad were with fire-arms while injuries on the person of Tariq Javed complainant' were with blunt weapon as during the occurrence he had fallen down. Alongwith these two above named injured witnesses, there is-statement of Muhammad Hanil P.W.4. This witness has fully implicated Ghulam Rasool Shah and Abu Bakar, convict appellants in his statements before the Police as well as before the trial Court. According to his statement, he was going alongwith Ghulam Hassan, PW (not produced) from the place of occurrence on the day of occurrence. He also identified Ghulam Rasool Shah and Abu Bakar convicts during the identification parade held on 1-9-1997 and 28-1- 1998. This witness had mentioned the description of all the accused who were present at the spot in his statement under section 161, Cr.P.C. All these eye-witnesses were not cross examined by Ghulam Rasool Shah . And Abu Bakar convicts either by themselves or through counsel despite the fact, as is clear from the interim orders passed by the trial Court they were given sufficient opportunities. The conduct of the convicts towards the trial Court was evasive rather they wanted to sabotage the proceedings. The trial Court in order to secure the ends of justice after failure of the convicts Ghulam Rasool Shah and Abu Bakar to produce their counsel in spite of opportunities, even appointed' counsel to defend them, at State expense but they did not even cooperate with the said counsel.
28. ' The effect of failure to cross-examine a witness came under consideration in the case of Mst.
29. Nazeer Begum and others v. Abdul Sattar (PLD 1963 (W.P.) Karachi 465) wherein on the strength of AIR 1961 Cat. 359 it was held that whenever an opponent declines to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony`given could not be disputed at all.
30. ' In Said Munir and others v. The State (PLD 1964 (W.P.) Peshawar 194) a learned Division Bench observed as under-- "It is important to observe here that the Public Prosecutor did not care to cross-examine this witness at all, with the result that it is to be presumed that his statement exculpating Ataullah appellant was not challenged by the prosecution."
31. In Syed Iqbal Hussain v. Mst. Sarwari Begum (PLD 1967 Lahore 1138) the law laid down in AIR 1940 Pat.
32. 683 was reiterated wherein it was held:- "that failure to cross-examine a witness means that his statement is being accepted."
33. In this view of the matter; we are of the considered opinion that the two convict appellants having not cross-examined the PWs. The examination-in-chief of three eyewitnesses, namely, Shakeel Ahmad, Tariq Javed; both injured and Muhammad Hand shall be presumed to be correct and we have no hesitation on relying the same because all these three witnesses are impartial' and independent, witnesses.
34. ' There is yet another Witness of circumstantial evidence and that is Afzal Lateef FC (PW.6). He was a telephone operator at the relevant time and date at the residence of S.S.P., Gujranwala (one of the deceased in this case). On the day of occurrence, according to his statement, he received a telephonic call at 8-15 a.m. From one Riaz (Naveed P.W.) who told him that he wanted to have a talk about terrorist act with the S.S.P. Upon which the witness connected the said Riaz with S.S.P.
35. Thereafter, the deceased S.S.P. Ordered this witness for conveying megsage, at Police Lines that task force be .Sent his office and the said PW convey the message and after per minutes, thts withe learned the fire shots and Went out came .To kritv`the 'S:S.P. And Tabassum Zameer Have been murdered. His statement is corroborated by the statement of Ali Akbar A.S.-I. (PW.7). This witness being Moharir at Police Station Civil Lines, Gujranwala received a telephonic message from the telephone operator (P.W.6) posted at the residence of the deceased S.S.P. To send task force in the office of the S.S.P. Who send the task force to the office of the SSP, as ordered. The evidence of both these two witnesses lend much support to involvement of the convicts appellants in the instant case.
36. Malik Niaz Ahmad, Magistrate 1st Class was examined as P.W.13. He got the identification parade of Abu Bakar alias Usman conducted on 28-1-1998 at 11-45 a.m. In District Jail Multan. During the identification parade, Tariq Javed, Muhammad Hanif and Naveed P.Ws. Had identified the said accused. Irshad Mohy-udDin, Magistrate was examined as P.W.15. This witness got the identification parade of Ghulam Rasool Shah conducted at G 12-40 noon on 1-9-1997 at Central Jail, Multan.
37. Tariq Javed, Muhammad Hanif PWs and Ghulam Hussain (not produced) correctly identified the said accused. Naveed P.W. Also correctly identified Ghulam Rasool Shah convict appellant during the identification test held on 8-9-1997. Muhammad Naveed PW had stated that he was present on the day of occurrence in the house of Shabbir appellant where 3/4 persons were present and that nothing conspiracy to commit the murder of Muhammad Ashraf Marth S.S.P.
38. ' While arguing the case, an objection was raised by learned defence counsel that before the identification parade, the accused were shown to the PWs through photographs and by publication in the newspapers. This is an objection which has become the trend of the day and is always taken just for the sake of objection. The other objection taken by the defence was that the eye-witnesses did not make a statement at the time of the identification test before the Magistrates that they had not told the said Magistrates that the accused who were going to be identified were the same who had committed the murder of Muhammad Ashraf Marth S.S.P. And Tabasum Zameer. This objection too is without any substance because the PWs do not know the effect and legality or otherwise of such an objection. In our view, it was the duty of the Magistrates if they had gone through the judgments of this Court as well as the apex Court and also the rules and order of the High Court on the subject then they should have themselves asked those witnesses that for what purpose they had come to jail and who were the accused going to be identified. The PWs who go to the jail to identify such-like accused as the appellants are, it is understood that they have gone there to identify the accused who had committed the murder/dacoity etc. This objection too is overruled.
39. ' The next objection of learned counsel for the defence was that according to the site plan, Exh.PT, the position of the eyewitnesses. At the spot was such that they could not have identified the assailants of two deceased in this case. We have gone through the site plan with the able assistance of learned counsel for the parties and we are of the considered opinion that the position of the eye-witnesses was such that there was no hindrance in their way and moreover they were not the statute to be remain still at one place specially when the fires were being shot. The presence of Shakeel Ahmad PW and Tariq Javed P.W. Being gunmen of the deceased S.S.P. In the official jeep was natural. Same is the position of Naveed P.W. And. Muhammad Hanif P.W. Apart from these eye-witnesses, there is also evidence of Muhammad Shafique P.W.18 who stated that on the day of occurrence when he was coming from Chattha hospital after taking medicine, he saw Uzair and Sana Ullah (Uzair is PO while Sana Ullah was killed in a Police encounter) giving signals with their hands to three assailants who had arrived there on a motorcycle and then the assailants started firing at the jeep of the S.S.P. This witness further stated that he ran away out of fear and later on came to know that that the S.S.P. And his driver were murdered while his two gun men sustained injuries. This circumstantial evidence also provides corroboration to the eye-witness account.
40. ' Tasaduq Hussain Inspector (P.W.25) partially investigated this case. According to him, he while being posted as S.H.O. Police Station Civil Lines, Gujranwala on 10-2-1999 interrogated Ghulam Rasool Shah who was confined in = death cell of Central Jail _,Gujranwala in some other case. In the jail, Ghulam Rasool convict disclosed in the presence of Muhammad Arif and Javed that he had buried kalashnikov P.23 in a deserted room near the Dera of Baba Kala situate near the Upper Chenab Canal. An objection was raised by learned defence counsel that the convict Ghulam Rasool Shah should have himself led to the recovery of P.23. It is correct that the accused should have led to the recovery of weapon of offence but the facts of the instant case are totally different and a deviation from the normal rules was justified because Ghulam Rasool convict was undergoing his sentence of death in the death cell in the case of Khana-e-Farhang Iran, Multan and to take such an accused from the death cell and then proceed to recover the Javed PW and Muhammad Arif who was given up. Both these' witnesses have no animus against the convict appellants. According to report of the Fire Arms Expert Exh.PHH at page 59 of the paper book, crime empties were sent to the Fire Arms Ewen on 12-5-1997 while the kalashnikov P.23 as received in the office of the Expert on 7-10-1999, that is, 7 days after its recovery and according to opinion of the Fire Arms Expert empties C.1, C.3, C.4, C.5, C.7, C.11, C.12 to C.14, C.18, C.19, C.20, C.22, C.23, C.24, C.26, C.27, C.30, C.31, J C.32, C.33, C.34, C.36 and C.37 were fired from the recovered on the disclosure of Ghulam Rasool Shah convict appellant. There are also recoveries from the spot in the shape of blood-stained pieces of glasses, empty bullets, official arms, official jeep. The empty cement bag was also recovered because from that bag, kalashnikov was taken out at the time of occurrence by the accused who had assassinated the deceased S.S.P. And his driver. This empty bag also finds mention in the statement of Naveed PW recorded under section 161, Cr.P.C. On the day of occurrence which is Exh.DC at page 380 of the paper book. A pamphlet was also recovered on the pointation of Shabbir Hussain appellant from his house by Muhammad Farooq, D.S.P., (P.W.27). The memo. Of recovery of hit pamphlet is Exh. PZ .
41. ' The objection with regard to recovery of motorcycle not on the pointation of any of the convict appellant is of no significance because even this recovery is kept out of consideration there is sufficient material available on record to connect the convict appellants with the commission of offence.
42. After critically analyzing the prosecution evidence and the defence, the submissions made by learned counsel for the appellants as well as the learned Assistant Advocate-General and the enunciation of law by the Courts, we are of the considered opinion that the prosecution has been successful in proving its case to its hilt against the appellants.. There is no mitigating circumstance in this case. Appeals filed by Shabbir Hussain, Abdul Rauf, Ghulam Rasool and Abu Bakar are dismissed. Conviction and sentence recorded against them by the trial Court is maintained. The death sentence of Ghulam Rasool Shah and 'Abu Bakar alias Usman is confirmed. Murder Reference is replied in the affirmative.