' MUHAMMAD NAWAZ ABBASI, J.---This single judgment proposes to dispose of Criminal Appeal No,385-T of 2000 (Maulana Nawaz-ul-Hassan and others v The state), Criminal Appeal No,396-T of 2000 (Muhammad Khan v. The State) and Criminal Revision No,136 of 2000 (Nawaz Khan v.
Maulana Nawab-ul-Hassan and others), which have been preferred against the judgment dated 23-9-2000 passed by the learned Judge, Special Court-II, Anti-Terrorism Rawalpindi Division and Islamabad Capital Territory.
2. The appellants namely Maulana Nawab-ul-Hassan, Haji Fateh Muhammad, Shahab-ud-Din, Ghulam Raza, Muhammad Aslam, Muhammad lqbal, Muhammad Riaz and Muhammad Khan faced trial under sections 302/324/148/149/109, P.P.C. Before a Special Court established under Anti-Terrorism Act, 1997, for the charge of committing the murder of Mumtaz Hussain, Ahmad Khan and Ghulam Haider and for murderous assault upon Muhammad Amin, Mumraze Khan, Sadiq Khan and Nawab Khan complainant residents of Village Jhamat situated in the area of Police Station Jand, District Attock. The learned trial Judge having found the appellants guilty of the charge convicted and sentenced them as under:-
(i) Under section 148, P.P.C.
' All the appellants were awarded sentence of three years' R.I. Each.
(ii) Under section 7 of the Anti-Terrorism Act, 1997.
' Maulana Nawab-ul-Hassan and Shuhabud Din, were sentenced to death for causing murder of Mumtaz Hussain and Ghulam Haider respectively whereas the remaining appellants were awarded sentence of imprisonment for life.
' Under section 302(b), P.P.C.
' Maulana Nawab-ul-Hassan was sentenced to death for causing the murder of Mumtaz Hussain with the direction to pay an amount of Rs,3,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and the remaining appellants were awarded the sentence of imprisonment for life.
(b) Shahab-ud-Din was sentenced to death for causing the murder of Ghulam Haider with direction to pay an amount of Rs,3,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. The retailing appellants have been awarded the sentence of imprisonment for life.
(c) All the appellants have been awarded sentence of imprisonment for life for the charge of murder of Ahmad Khan deceased.
(iv) Under sections 324/149, P.P.C.
' The appellant namely Muhammad Riaz, was awarded R.I. For ten years for causing injuries to Muhammad Amin. In addition he has been awarded fine of Rs,5,000 and In case of default in payment of fine, was directed to 'undergo S.I. For three months. The remaining appellants have been awarded sentence of three years' R.I. Each.
(v) Under sections 324/149, P.P.C.
' For causing injuries to Nawab. Khan P.W., Muhammad Iqbal and Muhammad Khan have been sentenced to R.I. For ten years with a fine of Rs,5,000 each and in default of the payment of fine, were directed to undergo S.I. For three months each. The remaining appellants have been sentenced to three years' R.I. Each.
(vi) Under sections 324/149, P.P.C.
' For causing injuries to Sajjad Hussain, Fateh Muhammad and Muhammad Aslam have been awarded sentence of R.I. For ten years each with a fine of Rs,5,000 each and in default of the payment of fine, to undergo S.I. For three months each. The remaining appellants were awarded sentence of three years' R.I. Each.
3. All the sentences of imprisonment awarded to the appellants were directed to run concurrently with' benefit of section 382-B, Cr.P.C. Ghulam Raza, Usman Haider and Sabir Hussain co-accused of the appellants being fugitive from law were declared proclaimed offenders and their trial was separated from the appellants. The accused namely Ghulam Hussain, Nawab Khan, Muhammad Khan and Muhammad Hussain having been given benefit of doubt were acquitted from all the charge.
4. The case was registered on the complaint Exh. P.K lodged by Nawab Khan son of Mehdi Khan which was recorded by Malik Aitbar Khan S.I/S.H.O, Police Station Jand at 8-20 a.m. Within two hours of the occurrence. The complaint contained the following facts:-- ' Nawab Khan complainant along with Mumtaz Hussain son of Haji Muhammad Nawaz, Ahmad Khan son of Sultan, Ghulam Haider son. Of Afzal, Muhammad Amin son of Rab Nawab, Mumraze Khan son of Gul Khan, Sajjad son of Khan Baig, Ghulam Shabbir son of Dost Muhammad, Abid Hussain son of Amir Alam, Ghulam Raza son of Ghulam Mohyyud Din, Harnid Abbas son of Dost Muhammad, Khurshid Ahmad son of Dost Muhammad, Muhammad Iqbal son of Ghulam Hussain, Haji Muhammad Nawab son of Ghulam Mohayyud Din, Aslam son of Allah Yar, Zafar Iqbal son of Mehdi Khan and Arshad Mahmood son of Nawab Khan, all residents of Village Jhamat while present in front of the house of Haji Nawab were waiting for the vehicle to go to Rawalpindi, for appearance in the Special Court constituted under Anti-Terrorism Act, 1997, in the murder case of Umar Siddique when suddenly the accused namely Nawab-ul-Hassan son of Shah Nawaz, Sabir Hussain son of Ghulam Hussain, Shaliabud Din son of Ghulam Raza, Muhammad Riaz son. Of Muhammad Hussain armed with klashnikovs along with Ghulam Hussain son of Muhammad Hussain appeared from the western street .Adjoining to the house of Haji Nawaz and it the same time from the eastern street of the house of Master Gul Khan, the accused namely Muhammad Iqbal son of Ghulam Muhammad, Ghulam Raza son of Ghulam Muhammad, Fateh Muhammad sob of Muzaffar Khan, Usman Haider son of Ghulam Hussain, armed with klashnikovs, Muhammad Khan son of Afzal Khan and Muhammad Aslam son of Gul Khan armed with .222 rifle alongwith Muhammad Hussain son of Hadayat Khan, Muhammad Khan so of Rajmir, Nawab son of Shakoor empty-handed appeared at the scene. The accused encircled Mu,mtaz Hussain, Ahmad Khan, Ghulam Haider, Muhammad Amin, Mumraze Khan, Sajjad Khan and the complainant whereas Ghulam Hussain, Muhammad Hussain, Nawab and Muhammad Khan so of Rajmir raised Lalkara that the complainant and his companions being belonged to Shia sect were Kafers who were responsible for the murder of one Umar Siddique be done to death and simultaneously Nawab-ul- Hassan fired with his klashanikov which hit on the chest of Mumtaz Hussain. Ahmad Khan was injured with the burst fired by Sabir Hussain with his klashanikov whereas' Ghulam Haider sustained fire-arm injuries as a result of burst fired by Shahab-ud-Din with his klashanikov. Muhammad Amin sustained injuries at the hands of Muhammad Riaz. The complainant sustained injuries as a result of firing of Muhammad Iqbal . And Muhammad Khan whereas Ghulam Raza and Usman Haider caused injuries with their respective weapons to Mumraze Khan. Fateh Muhammad and Muhammad Aslam fired at Sajjad Hussain. The remaining companions of the deceased and the injured witnesses who were present on the other side , of the road while taking refuge in the office of Agricultural Department located in the nearby to save their lives.
' The, motive behind the occurrence as narrated in the complaint was that six years earlier, Usman Siddique, son of Ghulam Hussain accused was murdered, and a case was registered against the complainant and his above named companions, which was still pending before the Special Court at Rawalpindi. Due to this enmity in the background, Ghulam Hussain and his companions being revengeful, in furtherance of their common object, attacked on the complainant party, as a result of which three persons died at the spot and four were injured.
5. Malik Aitbar Khan, S.I., the then S.H.O. Of the Police Station Jand, while reaching in the Hospital prepared the injury statements of the witnesses who sustained injuries in the occurrence and proceeded to the place of occurrence. The S.H.O. Prepared injury statements and inquest reports of Mumtaz Khan, Ghulam Haider and Ahmad Khan deceased and dispatched their dead bodies for post-mortem examination. During the spot inspection, the Investigating Officer collected the blood-stained earth and eighty crime empties from the place of occurrence and secured the same in the separated sealed parcels. The Investigating Officer also took into possession electric bulbs which were available outside the office of Agricultural Department; and water supply Tube- well. The investigation was then entrusted to D.S.P./S.D.P.O. J and who having effected the arrest of all the accused except Sabir Hussain and Usman Haider finalised the investigation and submitted the Challan. The above named two accused being fugitive were declared as proclaimed offenders and their trial was separated under section 512, Cr.P.C.
6. The charge against the, appellants was framed in the following manner:- "(1)That on 19-12-1998 at 6-30 a: m. In the area of Village Jhammat of Police. Stition Jand, District Attock, you, Nawab7u1-Hassan, Shahab-ud-Din, Muhammad Riaz, Muhammad Iqbal, Ghulam Raza and Fateh Khan alongwith your absconding accused persons, Sabir and Usman Haider armed with klashnikovs. Muhammad Khan son of Afzal and Muhammad Aslam armed with .222 rifles, Muhammad Hussain, Ghulam Hussain, Muhammad Khan son of Rajmeer and Nawab, empty- handed, in the prosecution of common object of you all, formed an unlawful assembly, committed an offence of 'section 148, P.P.C.Which is within the cognizance of this Court.
(2) That on the same day, time and place you all the above named accused persons in the prosecution of common object of unlawful assembly,' started firing at the complainant party, resultantly, caused the death of Mumtaz Hussain, Ghulam Haider and Ahmad deceased and thus you all the accused committed an offence of their Qalt-e-Amd punishable under sections 302/149, P.P.C. Which is within the cognizance of this Court.
(3) That on the same day, time and place you all the accused persons mentioned above, in the prosecution of common object of you all, being member of an unlawful assembly,. Started firing on the complainant; party with your respective weapons and caused injuries to Muhammad Amin, Mumraze Khan, Sajjad Hussain and Nawaz Khan P.Ws. With such intention and knowledge and under such circumstances, if any of them expired as a result of your firing, you all would have been guilty of their murder and thus you all have committed an offence of attempted murder punishable under sections 324/149, PPC which is within the cognizance of this Court.
' That on the same day, time and place, you all the above mentioned accused persons, in the prosecution of common object of you fail, being member of an unlawful assembly, rioting, punishable under in order to strike terror and to create a sense of fear and insecurity in the people of area, particularly Shia Sect, made indiscriminate firing with your respective weapons, consequently took lives of three persons and caused injuries to four persons, as mentioned above.
Thus, committed an offence punishable under section 7 of the Anti-Terrorism Act, 1997, which is within the cognizance of this Court."
7. The prosecution in proof of the charge apart from the ocular account also placed reliance on the evidence of motive, the medical and recoveries. The gist of the evidence produced by the prosecution is given as under :- ' In addition to Nawab Khan son of Mehdi Khan complainant, Muhammad Amin, Sajjad Hussain and Muhammad Riaz being injured witnesses have furnished the ocular account of the occurrence.
Their evidence is to the effect that on 19-12-1998 at 6-15 a.m. They along with the deceased namely Mumtaz Hussain, Ghulam Haider, Ahmad Khan and others after offering Fajar prayer in the mosque were present in front of the house of Haji Muhammad. Nawaz whereas their companions namely Ghulam Raza, Aslam Khan, Abid Hussain, Ghulam Shabbir, Muhammad Nawaz, Khurshid Ahmad, Hamid Abbas, Muhammad Iqbal, Zafar Iqbal and Arshad Mahmood while present in front of Agricultural Office were waiting for vehicle to proceed to Rawalpindi. Meanwhile, the accused; namely Nawab-ul- ' Hassan, Sabir Hussain, Shahab-udDin, Muhammad Riaz armed with klashnikovs and Ghulam Hussain empty-handed appeared from the western side of the house of Haji Muhammad Nawaz whereas their co-accused namely Haji Muhammad Hussain and Nawab Khan empty-handed, Muhammad Khan, Usman Haider, Ghulam Raza, Fateh Muhammad, Muhammad Iqbal armed with klashnikovs, Muhammad Khan son of Muhammad Afzal and Muhammad Aslam Khan son of Gul Khan armed with .222 rifles appeared from the eastern side in the street in which the house of Master Gul Khan was situated. The accused namely Ghulam Hussain, Muhammad Hussain, Nawab Khan and Muhammad Khan raised Lalkara that Shias were kafers and the complainant party.
Being Qaatils of Umar Siddique be killed and simultaneously Nawabul-Hassan fired a burst with klashnikov which caused injuries to Mumtaz Hussain, on his abdomen, legs and on left side of his back. Mumtaz Hussain having sustained the injuries fell on the ground and expired. Shabbir Hussain accused fired a burst with klashnikov at Ahmad Khan, who succumbed to the injuries at the spot.
Similarly a burst was fired by Shahab-ud-Din accused at Ghulam Haider who also succumbed to the injuries sustained by him at the spot. Muhammad Amin P.W. Was injured as a result of firing made by Muhammad Riaz whereas the complainant sustained injuries with the firing of Muhammad Iqbal and Muhammad Khan. Mumraze Khan another companions of the complainant was caused injuries by Usman Haider and Ghulam Raza. Sajjad Hussain was fired at by Fateh Muhammad and Muhammad Aslam accused. The members of the complainant party who were standing in front of the office of Agricultural Department having taken refuge in the said office saved their lives. The motive as stated was that in addition to the religious differences between the parties, the accused were revengeful against them due to the murder of Umar Siddique son of Ghulam Hussain accused. The occurrence relating to the murder of Umar Siddique had taken place six years ago in which the complainant party was challaned and the said case was still pending before the Special Court at Rawalpindi.
8 Dr. Faiz Muhammad Farooqi, Medical Superintendent, THQ Hospital Jand, P.W. 10 medically examined .The injured witnesses namely Haji Muhammad Amin, Mumraze Khan, Sajjad Hussain, Nawab Khan and found the following injuries on their persons:- ' Haji. Muhammad Amin.
(4) A lacerated wound 5 x 3 c.m. On the inner side of left forearm at the level of wrist.
Corresponding cut is present on the Kameez.
(2) A lacerated wound 9 x 8 c.m. On the back of left hand. Corresponding cut is present on the Kameez.
(3) A fire-arm wound of entry 3 x 1 c.m. On the back of left thigh. Corresponding cut is present on the Shalwar.
' Mumraiz Khan.
(1) A fire-arm wound of entry 1.5 x 0.8 c.m. On the outer side of leftlower leg.
(2) A fire-arm wound of exit 2.2. x 1.2 c.m. Oh the inner side of left lower leg.
(3) A lacerated wound .7 x 4 c.m. On the anterior side of penis.
(4) A lacerated wound 6 x 4 c.m. On right scrotum. Testis coming out.
(5) A lacerated wound 6 x 6 c.m. On the inner side of right thigh. Corresponding cuts are present on the Shalwar.
' Saiiad Hussain.
(1) A fire-arm wound of entry 1 x 1 c.m. On the inner side of right thigh.
(2) A fire-arm wound of entry 1 x 0.8 c.m, in the front of right thigh 6 c.m. Above injury No, 1.
(3) A fire-arm wound of exit 6 x 3 c.m. On the back of right thigh.
(4) A fire-arm wound of exit 7 x 4 c.m. Pn the outer side of right thigh. Corresponding cuts are present on the Shalwar.
' Nawab Khan
(1) A fire-arm wound of entry 1.8 x 1 c.m. On the back of left upper arm.
' Corresponding cuts present on the Chadar, Kameez and Jersey.
(2) A fire-arm wound of exit 2.5 x 1.5 c.m. In front of left upper arm. Corresponding cuts were present on the Chaddar, Kameez and Jersey.
(3) A fire-arm wound of entry 2.5 x 1 c.m. On the inner side of right foot 5 c.m. Below medial malleolus.
9. Jumma Khan P.W.4 remained associated with the investigation and was deputed to get the injured witnesses medically examined. The evidence of this witness was of no significance but still he made some obliging concession in favour of the accused. Muhammad Afzal, constable P.W.1, Muhammad Hussain, constable P.W.2, Khan Badshah P.W.3 also remained associated with the investigation and performed different function including taking the parcels containing blood- stained earth and the crime empties for delivery in the office of Chemical Examiner and Forensic Science Laboratory at Lahore. The prosecution placed on record the reports of the Chemical Examiner Exh.P.F.F and that of the Serologist Exh.P.G.G. Tahir Iqbal, Constable P.W.5 was deputed to take the dead bodies to the mortuary and after post-mortem examination he delivered the last worn clothes of three deceased to 'the Investigating Officer. Muhammad Farooq, H.C. P.W.6 has recorded the formal F.I.R. Exh.P.K/1 on the basis of complaint Exh.P.K, which was sent to the Police Station by Aitbar Khan, S.I./S.H.O. Of the Police Station. Master Suleman P.W.7 has prepared the site plans under the, direction of the Investigating Officer .And on pointation of the P.Ws. Ibrar Hussain P.W.8 identified the dead bodies of the deceased at the time of post-mortem examination.
Muhammad Khan P.W.9 witnessed the recovery of the crime empties and blood-stained earth from the place of occurrence. Aitbar Khan S.I./Investigating Officer died before the commencement of the trial, therefore. Muhammad Farooq, H.C. P.W.14 who was posted as Moharrir of the police station has proved the handwriting and signatures on the documents prepared by the S.H.O.
During the investigation.
10. The accused in their statements under section 342, Cr.P.C. While denying the charge pleaded false implication in the following manner:- ' Nawab-ul-Hassan "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some motorcyclist attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party and sectarian and on account of suspicion and on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection."
' Fateh. Muhammad "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In factr on the day of occurrence, small hours of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case."
' Shahab-ud-Din "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws.. In fact, on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case."
' Muhammad Riaz "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact, on the day of occurrence, small houri of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co.-accused had absolutely no hand, in the murder of the present deceased persons and the injured P.Ws. In this case."
' Muhammad Khan "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this. Case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party and sectarian and on account of suspicion and on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection."
' Ghulam Hussain "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact, on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
' The P.Ws. Are all closely related inter se and are almost members of the same family, on account of previous enmity and their close relationship between themselves they have falsely deposed against me and my co-accused."
' Nawab Khan-1 "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complaint party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party and sectarian and on 'account of suspicion and on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection."
' Muhammad Hussain "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured, the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party' and sectarian and on account of suspicion and, on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection."
' Muhammad Iqbal "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had 'absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party and sectarian and on account of suspicion and on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committing by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection."
' Muhammad Aslam "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured by P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present 'deceased persons and the injured P.Ws. In this case.
' The P.Ws. Are all closely related inter se and are almost members of the same family, on account of previous enmity and their close relationship between themselves they have falsely deposed against me and my co-accused."
' Muhammad Khan.
"It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the 'murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
' The P.Ws. Are all closely related inter se and are almost members of the same family, on account of previous enmity and their close relationship between themselves they have falsely deposed against me and my co-accused."
11. The accused have also produced the following witnesses in their defence:- ' Muhammad Abdul Basit D.W.-1, Muhammad Yousaf Paracha D.W.-2, Haji Abdul Rahim D.W.-3, Muhammad Bakhsh D.W.-4 and Malik Taj Muhammad D.W.-5, Muhammad Hussain D.W.-6, Muhammad Iqbal D.W.-7, Qari Khaqi Jan D.W.-8, Haji Abdul Mastan. D.W.-9, Ghulam Asghar D.W.-10, Fateh Khan D.W.-11, Ghulamn Safdar D.W.-12, Ghulam Habib D.W.-13, Ghulam Muhammad D.W.-14 and Ata Muhammad D.W.-15.
12. The accused namely Nawab-ulHassan Shahab-ud-Din, Muhammad Riaz and Muhammad Khan made the following statements under section 340(2), Cr.P.C.:-
(a) Nawab-ul-Hassan "I am present in the Court as an accused in this case. I have absolutely no connection with the murder case in hand. On the alleged day of occurrence of this case, at the alleged time I was present and leading the Fajar prayer in Masjid Paracha Mohallah Takia, Jand City, of Attock District, which is at the distance of about 30 k.Ms. From the alleged place of occurrence of this murder case.
It was 6-30 a.m. When I was leading the congregation. I imparted Darse Quran in a usual manner after the said prayer. After that, the whole congregation recited Sura Yaseen and thereafter the joint Dua was offered.. About. 70/75 persons offered Fajar prayer after me. Qari Muhammad Abdul Basit Professor Muhammad Yousaf Paracha, Haji Malik Abdul Majid, Taj Muhammad, Muhammad Hussain Butcher, Muhammad Iqbal, Qari Khaki Jan, Hafiz Wasim Iqbal Khokhar, Haji Sajjad Ahmad Khokhar and several others were present in the congregation.
' The persons responsible for this occurrence had committed the occurrence on motorcycle. The police investigating the case, had come to know of it and the same was also admitted in the final report of the investigation. One Muhammad Azam, who had actually taken part in the commission of the occurrence had confessed before CIA Staff, Lahore. D.S.P. Ch. Muhammad Zaman of Jand, had gone to Lahore and this accused had made a confession ,before him. After the transfer of D.S.P. Muhammad Zaman, the investigation was conducted by Malik Ehtabar Khan, S.H.O., Police Station Jand. He advanced the investigation in the light of the above facts coming to light. Malik Ehtbar Khan made Qari Abdul Samad, resident of Malowali, Khatib of Jamia Masjid Chab, to join the investigation. Qari Abdul Samad confirmed the stand of the real accused Muhammad Azam and disclosed, the names of two other persons involved in the case who were Qari Gul Muhammad resident of Jhamat, and Faisal Riaz resident of Malowali. I pray before the Court that graciously, it may see the case diary dated 16-2-1999 and 23-2-1999. I also pray that the report sent by Ch. Muhammad Zaman, D.S.P. Jand Circle dated 28-1-1999 may also be graciously perused. I also pray that the Letter No,1222-LB dated 9.6.1999, Letter No,690-CC dated 1-2-2000 from I.-G., Punjab, Lahore and letter No,13376 dated 15-12-1999 from D. I .-G.
' Rawalpindi, may also be looked into, as all these letters showthat the occurrence had been committed on the motorcycle by the above said culprits. This is the only case in which the police had traced the real culprits, but the police in connivance with the complainant party, did not arrest them and bring them to an account.
' The cause of my false implication is that one Siddique Umar, was murdered in broad daylight, which case is pending in Court No,1 of Anti -Terrorism, Rawalpindi. The complainant party has falsely implicated me due to their impression that I was pursuing the case of said Siddique Umar.
' I myself appeared before the police on 1-1-1999 at the police station. I have no connection with Sipa-eSahaba. I am the District General Secretary of JUI (Fazal-ur-Rehman Group) and also a member of Central General Council of the Jamaat. I have made this statement by holding the Holy Quran in my hand."
(b) Shahab-ud-Din ' I and my father are accused in the present murder case. I and my father are innocent and have not participated in the present murder case. In fact, we have no knowledge about it. On the day of occurrence, at the alleged time, when the occurrence took place, I alongwith father was present in my house, situate Dhoke Jali, Dakhli Jhamat alongwith my four guests who had come from Nowshera. They were Haji Abdul Mastan Khan, Zulkifel Khan, Aziz-nrRehman, and Ibadullah Khan, who are all residents of village Tarkha, Tehsil and District Nowshera. My residence is at a distance of 2-1/2 k.m. Away from the place of occurrence of this murder. At 5-55 a.m. My neightbour Ghulam Asghar told us that some unknown motorcyclists had committed firing on the vehicle of Muhammad Khan, and that the said vehicle had returned back to home. About half an hour later, two more neighbours, Fazal Ilahi and Abdul Maj id that there was an announcement in the mosque of Dhoke Malkan that three persons have been killed at bus-stop Jhamat. At the alleged time of occurrence of present murder case, I and my father Ghulam Raza were present at our residence in the said Dhoke.
' I am serving as a teacher for the last 17 1/2 years in Government Primary School, Dhoke Fatea, Dakhli Jawar.
' On 13-8-1993, one Saddique Umar of our village was murdered; and as I and my father were present at the spot, we were the eye-witnesses of the said occurrence and so deposed before the police against the accused of that case. The accused in that case were 25 in numbers. The complainant of this case and all the P. Ws. Were the accused of the said murder case of Siddique Umar and of that reason, the complainant and all the prosecution witnesses have enmity against me and my father. The fact of the matter is that the present occurrence had been committed by some unknown motorcyclists, unidentified and who decamped after the occurrence towards Chab.
After some months of the murder of Siddique Umar the complainant of the present case and others brought a complaint against me and 30 other persons and the Court concerned dismissed the said complaint. After that the said complaint took up no proceeding in any other Court.
' The police of Police Station Jand recorded the statement of Abdul Mastan and others, our guests in our defence.
' Maulana Nawab-ul-Hassan my co-accused got his statement recorded yesterday in my presence. I also own his statement so far as the investigation is concerned. All the Zimnis of Muhammad Zaman D.S.P. And the letter referred in the statement of Maulana Nawabul-Hassan may also be read in my defence."
(c) Muhammad Riaz "I am an accused in the present murder case. I am innocent in the present murder case and have not participated in the present occurrence in any manner. On the day of occurrence i,e, 19-12-1998, I was present in my house situated at Dhoke Jali, Dakhli Jhamat. My residence is at a distance of about 2 k.Ms. From Bus-stand of village Jhamat. My father Haji Muhammad Hussain and my sons Shaukat Ali, Ghulam Safdar, Ata Muhammad, Mehr Muhammad, Pervez Khan were present at my residence at 5-50 a.m. These persons had come to my residence on 18-12-1998 as my daughter was seriously ill and they had come to inquire about her health. My wife had heard the voice of firing as she came out of the. House and she told us about the firing. After some time a vehicle came and took away Muhammad Hussain, who lives in my neighbourhood to Village Jhamat. I sent my son Shaukat Ali to enquire about the firing to his house. He came back and told us that some motorcyclists had resorted to firing and three persons had been killed in the said firing in the Bus-Stand of Jhamat and some persons were also injured. The abovementioned persons appeared in my defence at Police Station Jand before D.S.P. Muhammad Zaman. Besides them, about 100, persons appeared in my defence to prove my innocence. t on my own appeared before the Police in Police Station Jand.
' I was present in the Court when yesterday, Maulana Nawab-ulHassan made statement in -this defence, I own and rely on his statement, so far as the investigation is concerned. I also rely on the Ziminis of D.S.P. Muhammad Zaman and the letter referred to in his statement, in my defence.
' I have been implicated in this case as I was a witness of Wajtakkar in the murder case of Siddique Umar and my son Nusrat Ali was an eyewitness in the said murder of Siddique Umar. I have been falsely implicated on this account."
(d) Muhammad Khan "I am an accused in the present murder case. I did not particpate and in fact have no knowledge about the present murder case. On the day of occurrence, I was admitted and under treatment in Saad Surgical Hospital Attock. I have produced a certificate of this effect of Hospital. I was an accused person in the 'counter complaint of the case of murder of Siddique Umar. I was acquitted by the Court of the Magistrate, the Sessions Court Attocle, and the High Court at Rawalpindi. The complainant of this case had brought a complaint against ten persons including myself, regarding the passage of the Jaloos, the police investigation placed me in column N,o.2 of the Challan and later on I was acquitted.
' I have tendered the certified copies, one of the Civil Judge, Jand/Judicial Magistrate, Jand dated 29-5-1999 and the other of the Criminal Court Civil Judge 1st Class and Magistrate Section-30, dated 21-7-1997 along with certified copy of the report under section 173, Cr.P.C.Dated 26-10-1992.
' I was present in the Court when yesterday; Maulana Nawab-ul-Hassan got his statement recorded in his defence. I own and rely on the documents and letters referred by him in his statement Exh.D/ are the certified documents it's my defence.
' I was a Wajtakker witness in the case of Siddique Umar, therefore, for the aforesaid reasons and also other detailed above, falsely implicated in this case."
13. Learned counsel for the appellants while pointing out the discrepancies and the contradictions in the prosecution evidence and criticizing the manner of appreciation of the evidence by the learned trial Judge raised the following contentions in support of these appeals:-
(a) That undoubtedly in the murder case of Umar Siddique son of Ghulam Hussain accused, the deceased and the injured witnesses were accused but this motive of enmity being double-edged weapon was a strong reason from false implication of the accused. Learned counsel contended that the prosecution in addition to the above said motive also while setting up the motive of religious differences gave it a colour of sectarian murder without any foundation.
(b) That Muhammad Zaman D . S . P./S.D.P.O. During the investigation found that some unknown culprits having appeared at the scene of occurrence on a motorcycle committed the crime but the said D.S.P. Was not produced by the prosecution and consequently the actual story relating to the occurrence was not allowed to be unfolded, -anther the prosecution through suppression of the mystery of terrorism committed by some unknown persons involved the appellant in the case due to the enmity.
(c) That without the recovery of weapons of offence from the accused, the recovery of crime empties from the spot would be of no significance to be used as incriminating material to connect the accused with the commission of offence.
(d) That an injured witness is not always a truthful witness and the testimony of an inimical witness despite being injured would require independent corroboration and that in the present case, the witnesses admittedly were inimical to the accused therefore, their testimony being lacked' of independent corroboration would not be enough to sustain the conviction and sentence awarded to the appellants.
(e) That the true version of the occurrence having dug out by the D.S.P. During the investigation was not allowed to be brought on record which resulted into serious miscarriage of justice and caused prejudice to the defence of the accused.
(f) That the plea of alibi taken by Nawab-ul-Hassan was supported by independent witnesses according to which Nawab-ul-Hassan while performing the function as Imam of the Mosque at Jand situated at a distance of 25 to 30 miles from the place of occurrence was present in the said mosque at the time of, occurrence and that the evidence of the defence witnesses who offered Morning Prayer with Nawab-ulHassan at Jand was wrongly excluded from consideration.
' Learned counsel argued that the fateful occurrence took place within half an hour after Morning Prayer at Village Jhamat and thus it was not possible for Nawab-ulHassan to reach at the place of occurrence at Jhamat to participate in the occurrence. Similarly the plea of alibi raised on behalf of Remaining appellants being supported by the independent witnesses was wrongly disbelieved.
(g) That there was no convincing evidence to suggest that there was sufficient visibility to identify the accuse oat the time of occurrence i,e, 6-30 a.m. On 19th of December.
(h) That the location of injuries on the back of all the three deceased would negate the prosecution story that they were facing the assailants at the time of occurrence and would suggest that the assailants having attacked from behind the complainant party decamped from the place of occurrence and were not identifiable.
(i) Learned counsel while concluding his arguments has submitted that while judging the prosecution version in the light of the plea of - alibi raised on behalf of the accused and their version that occurrence was committed by the unknown culprits. A serious doubt would be created in the untruthfulness of the prosecution story and, therefore, it was not. Safe to award conviction and sentence to the appellants only on the basis of ocular account furnished by the eye-witneses.
14. Learned counsel representing the complainant argued:-
(a) That the sun arose on the day of occurrence at 6-58 a.m whereas the occurrence had taken place at 6-30 a.m., therefore, there was sufficient visibility to identify the accused who being resident of the same village and related interne as well as with the complainant side were not stranger to the witnesses;
(b) That since the accused before opening the attack raised Lalkara, therefore, they were conveniently identifiable by face as well as by voice, and that the availability of electric light outside the office of Agricultural Department and the water-supply Tubewell near the place of occurrence would further improve the visibility.
(c) Learned counsel argued that the eye-witnesses while narrating the occurrence in detail also described the role played by each accused and thus the minor discrepancies if any in their statements in the given situation would not be considered enough to disbelieve them.
(d) That undoubtedly the parties being belonged to the different religious Sects were opponent to each other but the immediate motive behind the occurrence was the revenge of the murder of Umar Siddique from the deceased and the witnesses who were accused in the said case and, therefore, the accused had strong motive to commit the crime;
(e) That the deceased not only sustained injuries on their back rather fire-arm injuries on different parts of their bodies were traced and therefore, the contention that the deceased were attacked from behind was without any foundation and in any case the seat of injuries on the back of the deceased in the circumstances would not suggest that the occurrence did not take place in the manner as narrated by the eye-witnesses.
(f) That the presence of the eyewitnesses at the spot in the company of the deceased after offering Morning Prayer with a view to proceed to Rawalpindi together being beyond doubt, their testimony would not be excluded from consideration merely for the reasons that they were accused in the murder case of Umar Siddique who belonged to their opponent religious Sect.
(g) That the testimony of the injured witnesses being confidence inspiring would need no corroboration and would alone be enough to prove the murder charge.
(h) That due to the enmity in the background and religious differences, the accused without waiting for the verdict of the Court in the murder case of Umar Siddique decided to take revenge from the accused of the said case and consequently attacked on the complainant party, therefore, they were not entitled to claim any mitigation in their favour for lessor punishment;
(i) That the recovery of crime empties of klashnikov and 7-nun rifles from the place of occurrence and the opinion of the Doctor that the injuries sustained by the deceased and the witnesses were caused with bullets would show that klashnikovs and 7-mm rifles as stated by the eye-witnesses were used in the occurrence. Therefore, non-recovery of weapon of offence from the accused would not be material.
(j) That there was no evidence in support of the version given by the accused that some unknown culprits while appearing on the motorcycle made indiscriminate firing and that DSP/SDPO Muhammad Zaman on the request of defence was called in the witness-box but he was dropped by the defence without examination, which would show that no such version was in existence;
(k) That the plea of alibi raised by Nawab-ul-Hassan and his co-accused being not supported by any independent witnesses has no leg to stand.
15. Learned counsel for the State while adopting the arguments of the learned counsel for the complainant has contended that the review of the prosecution evidence would suggest that the plea of alibi raised by the accused and the version that some unknown culprits have committed the crime has no substance and foundation to be given any weight.
16. We have heard the learned counsel for the parties at length and scrutinised the evidence in detail with their assistance. The material fact relating to the time and the place of occurrence and use of firearms, the presence of injured eye-witnesses at the spot were not challenged. The prosecution version as contained in the F.I.R. Was supported by the injured witnesses namely Nawab Khan P.W.-11, Muhammad Amin P.W.-12 and Sadiq Hussain P.W.-13. These witnesses corroborated each other on each material point and also deposed in confirmation to the statement (Exh.P.K) of Nawab Khan on basis of which the case was registered within two hours of the occurrence. The accused while raising Lalkara at the scene that Shia were Kafers and that the complainant party was Qaatil of Umar Siddique attacked in the following manner:-
(i) Nawab-ul-Hassan being armed with klashnikov fired burst, which hit Mumtaz Hussain.
(ii) The burst fired by Sabir Hussain with his klashnikov hit Ahmad Khan on his chest.
(iii) Shahab-ud-Din fired a burst with his klashnikov, which hit Ghulam Haider on his neck and chest.
' The above named three deceased succumbed to the injuries at the spot. Muhammad Amin was injured with the firing of Muhammad Riaz whereas Muhammad Iqbal and Muhammad Khan fired at the complainant. Ghulam Raza and Usman Haider fired at Mumraze Khan and Sajjad Hussain sustained injuries at the hands of Fateh Muhammad and Muhammad Aslam. The statement (Exh.P.K) of Nawab Khan was recorded by Aitbar Khan S.I. In the Hospital at 7-45 a.m. Whereas the occurrence had taken place at 6-30 a.m. On the same day. Nawab Khan while appearing in the Witness-box without any omission or addition has affirmed the statement made by him before the Sub-Inspector in the Hospital. The witness has also described the relationship of the accused interse with the complainant party. In cross-examination, he has stated that Umar Siddique was murdered six years ago and that he along with the witnesses and deceased were accused in the said case. The witness has also stated that none of the accused was with muffled face and that electric light was available outside the Agricultural Office and water-supply Tubewell. The witness has admitted that the village Jhamat where the occurrence took place was at a distance of about thirty miles from Jand but he denied to have the knowledge that Nawab-ul-Hassan was Imam in a mosque at Jand or that he raised the plea of alibi during the investigation. The witness has categorically denied the suggestion that some unknown terrorists while appearing at the scene of occurrence of a motorcycle with muffled faces fired at the deceased and witnesses and were not identifiable. Muhammad Amin P.W.-12 and Sadiq Hussain P.W.-13 having corroborated Nawab Khan P.W.-11 have described in detail the role played by each accused and thus all the eye-witnesses have consistently deposed in support of the prosecution story given in the F.I.R. And the defence despite lengthy cross-examination to each witnesses has not been able to dislodge their testimony. The presence of the eye-witnesses at the spot and their sustaining of injuries in the occurrence was established beyond doubts and the only question relating to the reliability of their evidence would need examination as the sustaining of injuries in the occurrence would not by itself be a sole factor to believe the testimony of the eyewitnesses. It is an admitted fact that Umar Siddique was son of Ghulam Hussain accused and the witnesses namely Muhammad Amin, Muhammad Riaz, Sajjad Hussain, Nawab Khan alongwith Mumtaz Hussain and Ahmad Khan deceased and others were accused in the murder case of Umar Siddique. It is also admitted that parties belonged to different religious Sect. The enmity between the parties being not deniable, the prosecution pleaded it as motive for the occurrence whereas according to the accused, they for the said reason were substituted for unknown culprits. It is an admitted fact that the deceased and the injured witnesses were facing prosecution for the charge of murder of Umar Siddique before the Special Court at Rawalpindi, therefore, not the complainant party but the accused being revengeful would have motive for the attack and consequently the plea of false implication due to enmity would be of no substance. The role played by each accused in the occurrence was described by the witnesses in detail with the claim that there was sufficient visibility to identify the assailants, therefore, it would be difficult to accept that the assailants being unknown were not identifiable. This is correct that the enmity being double-edge weapon can cut both way but the testimony of natural and injured witnesses in the present case cannot be excluded from consideration for such reason and instead for the purpose of safe administration of justice, the evidence would need scrutiny with extra care to judge the credibility of the witnesses following the rule of independent corroboration. The statement of the eyewitnesses relating to the use of klashnikov and 7-mm Rifle as weapons of offence in the occurrence would be supported by the recovery of crime empties of klashnikov and 7-mm Rifle as weapons from the spot. It is in the medical evidence that the deceased and the witnesses sustained injuries with bullets and the Investigating Officer collected eighty empties from the spot out of which fifty five were of klashnikov and the remaining were of 7-mm Rifle. Thus, the- large number of empties recovered from the place of occurrence would show. That the firing was made at large scale by a group of persons.
This is noticeable that the accused without denying the happening of the occurrence in the manner as described by the eyewitnesses while taking the plea of alibi pleaded that the complainant party was the victim of aggression of unknown terrorists. The fateful occurrence had taken place at 6-30 a.m. i,e, immediately after Fajar Prayer in front of the mosque and the case was registered at Police Station Jand within two hours on the basis of the statement made by Nawab Khan an injured witness, in the Hospital. The promptness in lodging report with disclosure of the name of the accused with the role played by each accused would rule out the possibility of false implication and substitution. It does not appeal to mind that in such an extraordinary circumstances, the complainant while lying in the Hospital in an injured condition would cook a false story against the accused due to, their being accused in the murder case of Umar Siddique.
However, without ruling out the possibility of addition of an accused or misdescription of role of an individual accused, the total change of the prosecution story in the manner as suggested by the defence being a rare phenomena would not be supported by either evidence or attending circumstances and thus ocular account in the present case would be seeking sufficient corroboration from independent source and circumstantial evidence to establish the truthfulness of the prosecution story.
17. The corroboration may exist of direct or circumstantial evidence and it need not amount to the corroboration of the statement of a witness in full rather the corroboration only to the extent of material point is sufficient and the degree of corroboration always rests with the discretion of the Court which may vary in the facts and circumstances of each case. It is also noticeable that the corroboration is not always required in a case of capital punishment in which the witnesses are injured and also related to the deceased, if they were in a position to identify the offenders and there was no possibility of substitution, the statement of such witness would be accepted without any corroboration and if the veracity of the witness is doubtful, the independent corroboration should be insisted upon. However, when the enmity between the parties is proved, some independent corroboration is needed to prove guilt of the accused and in case of an interested and partisan witness corroboration even by circumstances of the case which may satisfy the mind of the Court that the witnesses are truthful would be sufficient.
18. The initial investigation was conducted by Malik Aitbar Khan, S.I./SHO of the police station who died before the commencement of the . Trial, therefore, the investigation with the documents prepared by him with his signatures were proved by Muhammad Farooq H.C. Who was not cross- examined. The accused have not taken plea of alibi or that the assailants were not identifiable before the said Investigating Officer and the D.S.P. Before whom such pleas were called to the Witness-box but he was not examined by the defence and was given up. Therefore, the contention of the learned counsel for the appellants that to non-examination of Muhammad Zaman D.S.P., the defence of the accused was caused serious prejudice has no substance.. This is correct that the non-production of the Investigating Officer by the prosecution may cause prejudice to the accused but in the present the main investigation was conducted by Malik Aitbar S.I. And Muhammad Zaman, D.S.P. Has done nothing except the arrest of the accused, therefore, the evidence of D.S.P. Being of not much importance, his non-production by the prosecution neither would be fatal to the prosecution nor would cause prejudice to the accused. In any case, the D.S.P.
Was called to the witness-box on the request of the accused but he was not examined by the defence and was dropped. The calling of D.S.P. To the witness-box by the accused and his non- examination would give rise to the presumption that the defence version relating to the commission of offence by unknown culprits and the plea of alibi of the accused was without any foundation.
19. Learned counsel for the appellants with reference to the Zimnis recorded by the D.S.P. Contends that unknown culprits made the firing but the actual state of affair was not brought on record. The Zimnis containing the defence pleas of the accused recorded by the Investigating Officer during the investigation being not part of the evidence cannot be read in evidence and the opinion, if any, expressed by the Investigating Officer in the Zimnis would not be permitted to be used as evidence unless it is brought on record in the statement of the Investigating Officer. The Zimnis prepared by the Investigating Officer could be consulted by him only for the purpose of refreshing his memory or at the most can be seen by the Court, but in the present case, no material was brought on record to suggest that Muhammad Zaman, D.S'.P. Having formed such an opinion declared the accused innocent. Therefore, the mere putting unfounded suggestions to the witnesses during the cross-examination would not be helpful to the accused to dislodge the prosecution story.
20 The police diaries can be consulted by a police official with the permission of the Court for refreshing his memory but the case diaries cannot be used to contradict any witness other than the police officer who prepared the same. This is noticeable that the police diaries are permitted to be used only for a limited purpose of corroboration. The police diary cannot be used for the purpose of controverting its author and cannot be seen or called for by the accused or his agent except for the purpose of section 172 Cr.P.C. However, the accused may inspect the diary if the same is used by the Court to enable the police officer who made it to refresh his memory or to contradict the police officer. The police opinion can legitimately be used to assist the Court in doing the complete justice but cannot be used as evidence to prove a material fact, therefore, it is not proper and legal to use the police diary as evidence to establish the defence pleas. The accused is not entitled to use Zimnis and police diaries in support of his version and it would be uncalled for to make a reference to police diaries in the judgment. The mere perusal of such diaries by the Court for its satisfaction is not necessarily means that the Court is influenced by such diaries. The D.S.P. Who statedly recorded the pleas of the accused in the case diaries was not examined despite being called to the witness-box by the defence and thus there would be a strong presumption that the version was unfounded and further no reference can be made of such pleas on the basis of such diaries if any. The defence version of alibi fiiust be reasonably established through direct and independent evidence. The defence has thus failed in establishing the special pleas raised counter to the prosecution case.
21. Nawab-ul-Hassan accused taking the plea of alibi produced eight witnesses in his defence.
Muhammad Abdul Basit D.W.-1 a resident Basal, District Attock, has stated that on the day of occurrence, he offered Morning Prayer at 6-30 a.m: in the mosque Paracha in Village Jand in the Imamat of Nawab-ul-Hassan who after prayer attended Dars-e-Quran. The witness has .Admitted that he was resident of Village Malhuwali whereas Nawab-ul-Hassan was resident of Village Jhamat where the occurrence took place and that he was Manager of the Madrissa being run by the accused and his real brother was accused in the occurrence of Malhuwali in which fifteen persons were killed. The witness has stated that he appeared before the D.S.P. At Police Station Jand and denied having the knowledge of involvement of Nawab-ul-Hassan in the murder case of Nasir Abbas. Muhammad Younas D.W.-2 deposed that he offered Morning Prayer in Masjid Paracha in Village Jand and Nawabul-Hassan was Imam in the said prayer and admitted that he was an accused alongwith Nawab-ul-Hassan in a murder case of Nasir Abbas, which was a sectarian murder. The witness has stated that he appeared before the D.S.P. In support of the plea of alibi of Nawab-ul-Hassan. Haji Abdul Rahim D.W.-3 also claimed to have offered Morning Prayer in Jand in the Imamat of Nawab-ul-Hassan and admitted that he alongwith Nawab-ul-Hassan and was involved in the murder case of Nasir. Abbas and that he was follower of Nawab-ulHassan with whom he had acquaintance for the last about 12-14 years. Muhammad Bakhsh D.W.-4 while supporting the plea of alibi of Nawab-ul-Hassan stated that he offered Morning Prayer with Nawab-ulHassan on the day of occurrence at Jand. Malik Taj Muhammad D.W.-5 having made a similar statement stated that he was resident of a place situated at the distance off sixty kilometers from Jand and that he while appearing before the D.S.P. Pleaded the innocence of Nawab-ul-Hassan. Muhammad Hussain D.W.-6 while deposing in support of the plea of alibi of Nawab-ul-Hassan stated that he offered Morning Prayer in the company of Nawabul-Hassan at Jand on the day of occurrence. This witness has admitted that a delegation of 30/35 persons of Jand having decided to support the plea of alibi being raised by Nawab-ul-Hassan appeared before the Investigating Officer with the claim that they offered Morning Prayer in the Imamat of Nawab-ul-Hassan. Muhammad Iqbal D.W.-7 having claimed to have offered the Morning Prayer with Nawab-ul-Hassan at Jand stated that he did not see Nawab-ulHassan after the day of occurrence till the date of his appearance before the Investigating Officer. Qari Khaki Jan D.W.-8 who was a teacher in the Madrissa being run by Nawab-ul-Hassan stated that he offered Morning.
Prayer with Nawab-ulHassan.
22. Haji Abdul Mastan D.W.9 while appearing in the Witness-box in support of the plea of Shahab- ud-Din has stated that on the day of occurrence, he was present in Village Jhamat in the house of Shahab-udDin and at the time of firing Shahab-ud-Din was present with him at his house. Ghulam Asghar D.W.10 has stated that it was being said in the Village that the firing was made by unknown motorcyclist outside the mosque as a result of which the complainant party sustained injuries. The witness has admitted that he was brother-in-law of Sabir Hussain, a proclaimed offender in the present case and that Umar Siddique who was murdered six years ago was his real brother. This witness has further stated that Muhammad Riaz accused was married with his sister. Fateh Khan D.W,11 stated that he could notice that some unknown motorcyclists after firing at the deceased and the witnesses fled away from the place of occurrence. The witness stated that his sister was married with Fateh Muhammad accused and widow of Umar Siddique was his niece. Ghulam Safdar D.W.12 stated that during the night preceding the occurrence, he stayed in the house of Muhammad Riaz accused situated at a distance of two kilometers from the place of occurrence and that at the time of firing, Riaz accused was present with him at his house. The witness, however, stated that Sabir Hussain, the proclaimed offender, was husband of his sister and Ghulam Raza accused was his Chachazad whereas Shahab-ud-Din was the son of Ghulam Raza accused and Muhammad Riaz accused was the husband of his sister and paternal uncle of Umar Siddique.
Ghulam Habib D.W.13 has stated that on hearing the reports of firing at 5-50 a.m. He being attentive noted that three persons on motorcycle came from Jhamat side with muffled faces carrying weapons. The witness stated that he did not report the incident to the Police or any other person and only disclosed the same while appearing before the police after twenty days of the occurrence in defence of the accused. Ghulam Muhammad D.W.14 having made a similar statement has stated that the firing was made at 5-50 a.m. Ata Muhammad D.W.15 stated that he having visited Muhammad Riaz stayed at his house in the night and in the morning at 5-45/6-00 a.m. He and Muhammad Riaz came to know about the incident. The witness stated that the wife of Muhammad Riaz accused is his Khalazad. Nawab-ul-Hassan in his statement under section 340(2), Cr.P.C. As D.W.16 stated that on the day of occurrence he offered Morning Prayer in mosque Paracha at Jand and the version of firing by unknown motorcyclist was brought to the notice of the police during the investigation which was confirmed by Muhammad Taman D.S.P. Jand. In cross- examination the accused admitted that he came to know about the occurrence on the same day at Jand but he did not appear before the police and later moved and ,application to S.P. Attock, taking the plea of his innocence. Shahab-ud-Din in support of the plea taken by him in his statement under section 340(2), Cr.P.C. As D.W.17 stated that he was an eye-witness of the occurrence in which Umar Siddique was murdered against the complainant and the P.Ws. Of this case who were accused in the said murder case. This accused having taken the plea of alibi adopted the statement made by Nawab-ul-Hassan, Muhammad Riaz, Muhammad Iqbal and Muhammad Khan made by them under section 340(2), Cr.P.C. And pleaded innocence.
23. The burden of proving the special plea of alibi must be discharged by the person raised such plea satisfactorily through unimpeachable evidence unless the reasonable possibility of the presence of the accused at the place other than the place of occurrence exist, the plea of alibi would remain unproved. The setting up a false plea of alibi does not lead to an inference of guilt but at the same time, it can be a confirmatory circumstance to prove the guilt. The truthfulness of the prosecution evidence is note affected in such circumstances but still it must be scrutinized carefully as it is very easy to set up plea of alibi but very difficult to prove as it must be proved to be considered a sufficient rebuttal to the case of the prosecution. The defence in the present case has not been able to successfully prove that the plea raised on behalf of the accused contained reasonable possibilities. The mere plea that at the time of occurrence, the accused was not present at the spot or that he was present at some other place at a distance from where he could not possibly reach at the place of occurrence without support of confidence inspiring and unimpeachable evidence would not be sufficient to rebut the direct, natural and independent evidence of the prosecution. The evidence produced by the accused in support of defence pleas was not of the standard to disbelieve or excluded the prosecution evidence from consideration or even to create a dent in the prosecution case to a reasonable extent to extend the benefit of doubt.
24. The witnesses produced by the accused in the support of their plea of alibi being closely related to them would definitely be watching their interest and were not independent persons to be given any credence to disbelieve the 'ocular account furnished by the injured and natural witnesses of the occurrence. This is correct that Jand is at a distance of 30/35 kilometers from Village Jhamat and a person after offering Morning Prayer at Jand cannot possibly reach at Village Jhamat at 6- 30 a.m. But it is noticeable that Nawab-ul-Hassan in his statement under section 340(2), CT. P .0 .
Stated that 70/80 persons offered Morning Prayer in his Imamat in Paracha Mosque at Jand, but except the close associates of Nawab-ulHassan no independent person appeared in support of his plea of alibi. It was claimed that Nawab-ul-Hassan after Fajar prayer attended Dars-e-Quran in the mosque but none of the students was produced either before the police or in the Court in support of the plea of alibi. Nawab-ul-Hassan accused has brought no independent oral or documentary evidence to establish that at Fajar Prayer's time on the day of occurrence, he was present in the mosque or in the Madrissa at Jand before and after the occurrence. The above named defence witnesses have admitted that they came to know about the occurrence on the same day and after the occurrence Nawab-ul-Hassan accused was not seen by them in the area till he appeared before the police. The disappearance of the accused on the day of occurrence from Jand would negate his plea and would be a .Strong circumstance in proof of the correctness of the prosecution story as narrated by the injured eyewitnesses and thus the plea of alibi taken by the accused was not supported by any sound and confidence inspiring-evidence to be accepted.
Similarly, the plea of alibi raised by the remaining accused would not be, helpful to them rather it would support the prosecution case as the witnesses and the accused admitted that at the time of occurrence, they were present in Jhamat at a short distance from the spot and we may observe that the accused could easily reach at their residences within few minutes after participating in the occurrence, therefore, the plea of alibi raised on their behalf would be without any foundation.
25. The counter-version given by the defence that some unknown culprits while appearing at the scene of occurrence on a motorcycle caused firing as a result, of which three persons were killed and four were injured was not supported by any direct or circumstantial evidence. The mere putting of suggestion to the P. Ws. In the cross-examination or pleading such version of the occurrence during the investigation on the basis of hearsay evidence would not discredit the direct evidence of unimpeachable character. The recording of said version by the D.S.P. In the Zimnis would not be relevant to disbelieve the ocular account and discard the prosecution story. The accused without seriously challenging the truthfulness of the prosecution story pleaded their non- participation in the occurrence and while putting the defence version in juxta-position to the prosecution case which is supported by the bundle of direct evidence, the correctness of the prosecution story would be established beyond doubt.
26. The detailed scrutiny of the evidence would lead to an irresistible conclusion that the plea of alibi raised on behalf of the accused and introduction of the counter-version was without any substance and in view of the strong prosecution evidence, we have no reasons to disagree with the findings of guilt arrived at by the trial Court, on the basis of minor discrepancies and contradictions as pointed out by the learned counsel for the appellants. We, therefore, hold that the prosecution was successful in establishing the charge under sections 3021324/148/149, P.P.C. Against the appellants beyond any doubt and consequently their conviction under the said charges awarded by the trial Court is maintained. We find that the direct and immediate motive behind the occurrence was the murder of Umar Siddique and not the sectarian hatred. The parties undoubtedly belong to opposite religious groups but the religious differences was not a direct motive and the real cause of occurrence was the revenge of the murder of Umar Siddique.
Therefore, we hold that it was not a sectarian murder to constitute an offence under section 7 of the Anti-Terrorism Act, 1997. The appellants are, therefore, acquitted from the charge under section 7 of the Anti-Terrorism Act, 1997.
27. While taking into consideration the question of sentence under section 302, P.P.C. Nawab-ul- Hassan and Shahab-udDin being directly responsible of causing the death of Mumtaz Hussain and Ghulam Haider have been awarded sentence of death on one count each. We having evaluated the evidence have not been able to find out any mitigating circumstance in their favour for lesser punishment. The defence without seriously challenging the prosecution evidence while taking plea of alibi also has not claimed any mitigation for lesser punishment. The enmity between the parties due to the murder of Umar Siddique is admitted and the accused party being revengeful without waiting for the verdict to be given by the Court decided to settle the account with the complainant party, therefore, this enmity in the present case would not be a source of mitigation in favour of the accused and accordingly they would not deserve any leniency in the matter of sentence. The contention of the learned counsel for the complainant that the learned 'trial Judge having found the appellants guilty of the charge under section 148, P.P.C. Sentenced them accordingly but withheld the conviction and sentence of normal penalty of death on each count separately under section 302(b), P.P.C. And this Court in exercise of its suo motto powers can award the normal sentence to the appellants is unfounded. This Court in exercise of its powers under section 439, Cr.P.C. Need not to award conviction and sentence to a person for the charge for which he was not convicted and sentenced by the trial Court without filing of an appeal or revision by the Stale or the complainant, as the case may be.
28. Sabir Hussain, who was found responsible for causing the death of Ahmad Khan deceased being fugitive from law was declared proclaimed offender and the trial Court separated his trial under section 512, Cr.P.C.
29. Shahab-ud-Din and Nawab-ulHassan were found responsible to have caused the death of Ghulam Haider and Mumtaz Hussain respectively, therefore, they upon conviction for murder charge under section 302, P.P.C. Were awarded sentence of death on one count each and the remaining appellants for the charge under section 302, P.P.C. Were sentence' to imprisonment for life on each count and further all the appellants by virtue of section 149, P.P.C. Were awarded the sentence of imprisonment for life for the murder of Ahmad Khan. The State or the complainant has filed no appeal or revision for the enhancement of their sentence.
30. The role of causing fire-arm injury to Muhammad Amin attributed to Muhammad Riaz stood corroborated by the medical evidence, which was on non-vital part of the body Muhammad Iqbal and Muhammad Khan were jointly attributed the role of causing injuries to Nawab Khan complainant and similarly, Muhammad Aslam and Fateh Muhammad have been assigned the role of causing injuries to Sajjad Hussain without any specification. Thus, we are of the view that the appellants deserve some concession in the sentence under section 324, P.P.C. We accordingly while maintaining the conviction under sections 324/149, P.P.C. Reduce the sentence of Muhammad Riaz, Muhammad Iqbal, Muhammad Khan, Fateh Muhammad and Muhammad Aslain, under sections 324/149, P.P.C. From ten years to seven years' R.I. With the direction that all the appellants shall be entitled to the benefit of section 382-B, Cr.P.C.
31. In view of our observation in the preceding paragraphs, we hold that it was a premeditated occurrence in which the appellants in furtherance of their common object attacked at the complainant party and as a result thereof three persons lost their lives and' four were injured and thus the appellants having been found guilty of committing the act of riots as members of unlawful assembly were rightly convicted and sentenced under section 148, P.P.C., and consequently they individually as well as collectively would be responsible for committing the murder of three deceased and causing of injuries to the witnesses. The accused who are attributed to have caused fatal injuries- to the deceased were awarded sentence of death whereas the remaining appellants being vicariously liable for the murder of three deceased were awarded sentence of life imprisonment on each count. We find that the appellants in furtherance of their common object played active role of firing as a result of which the deceased and the witnesses sustained the injuries, therefore, it being a case of collective responsibility, each member of unlawful assembly would equally be guilty of all the charges and consequently the conviction awarded to the appellants by the trial Court for committing the murder of three deceased, and causing injuries to the witnesses was unexceptionable. The revision filed by the complainant contained the prayer only for enhancement of compensation and we laving found that sufficient compensation has been awarded by the trial Court to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Are not inclined to further enhance the same, therefore, the criminal revision is disposed of accordingly.
32. With the reduction of sentence of the appellants namely Maulana Nawab-ulHassan, Haji Fateh Muhammad, Shoaib-udDin, Ghulam Raza, Muhammad Aslam, Muhammad Iqbal, Muhammad Riaz and Muhammad Khan under sections 324/149, P.P.C. From ten years' R.I. To seven years' R.I., we upheld their conviction for the said charge and further maintain their conviction and sentence under sections 302/149, P.P.C. On all counts as awarded by the trial Court.
33. The compensation as directed by the trial Court shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. And the sentences of imprisonment awarded to the appellants under sections 324 and 302(b), P.P.C. Shall run concurrently with benefit of section 382-B, Cr.P.C. The conviction and sentence of the appellants under section 7-A of the Anti-Terrorism Act 1997, is set aside. These appeals with the above modification in the conviction and sentences are dismissed.