1. ' BASHIR A. MUJAHID, J.---Muhammad Azam (24) Ahmad Nawaz (37), Abdul Jabbar alias Bari (30), Noor Muhammad alias Noora (50), Muhammad Ashraf alias Ashri (29), Muhammad Nawaz alias Nazi (28), Muhammad Akbar (27),Muhammad. Aslam (31) and Muhammad Safdar (22) has challenged judgment dated 4-7-1998 passed by learned Judge, Special court under Terrorism Act.
2. Bahawalpur whereby Muhammad Azam, Ahmad Nawaz, Abdul Jabbar, Noor Muhammad, Muhammad Ashraf, Muhammad Nawaz, Muhammad Aslam and Muhammad Safdar were convicted under section 302(b) 149, P.P.C. And sentenced to death on nine counts, except Muhammad Safdar who was sentenced to imprisonment for life, for commission of murder of nine persons namely, Allah Ditta. Mistri (27/28), Aurangzeb (25/26), Alamghir (19/20) Muhammad Shaban (28/29) Abid Hussain (27/28), Hamayim (20/21), Muhammad Yaqoob (35/36), Noor Ahmad (40/45) and Muhammad Qasim (34/35) both Constables. They were also fined to the tune of Rs,1 lac each on each count under section, 544-A, Cr.P.C. To be paid to the legal heirs of all the deceased persons in equal shares. They were further convicted under section 324/149, P.P.C. And sentenced to 10 years' R.I each and fine of Rs,20,000 each in default of payment of fine to undergo two years' R.I. They were further convicted under section 148/ 149, P.P.C. And sentencd to three years'
3. R.I. Each. Under section 353/149 P.P.C. They were convicted and sentenced to two years' R.1 each.
4. Under sections. 427/ 148/149, P.P.C. They were convicted and sentenced to two years' R.I. Each. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the convicts. Through the same judgment, seven persons namely. Azhar Farid son of Nazar Muhammad,Mst. Sakina widow of Nazar Muhammad, Ghulam Farid son of Muhammad Yar, Muhammad Ali son of Nazar Ahmad, Noor Khan son of Sabir Ali, Irshad Shah son of Muhammad Ishaque and Muhammad Gulzar son of Khan Muhammad were acquitted of the charge.
5. ' Briefly stated the facts of the case are that F.I.R. Exh.P.H.H was recorded at the. Police Station Hasilpur by Syed Jamat Ali Shah, Inspector S.H.O P.W.16 at 8-30 a.m. On 22-1-1996, on the statement of Muhammad Ali S.I. P.W.15 regarding the occurrence which took place at 7-20 a.m. On 22-1-1996 on the main road leading from Bahawalnagar to Bahawalpur at one . Furlong after crossing of Qatarian Check Post towards Hasilpur in revenue estate Chak No,12/F.W at a distance of 14 k.Ms. Towards east .Of Police Station, Hasilpur.
6. ' Muhammad Ali, S.I. P.W.15 had alleged in the F.I.R. That on 22-1-1996 he along with Muhammad Akram, Head Constable, Muhammad Yaqoob, Muhammad Azhar, Noor Ahmad and Muhammad Latif, Constables took Aurangzeb, Alamgir, Hamayun and Allah Ditta accused of case F.I.R. No,38 of 1995 registered under section 302, P.P.C. From District Jail Bahawalnagar to be produced before Anti-Terrorist Court, Bahawalpur. Muhammad Shaban who was accused in case F.I.R. No,155/95, under section 392, P.P.C, was also taken by him for his transfer to Central Jail Bahawalpur. All these accused were taken in the Police Van bearing Registration No,5506/BNA driven by Abdul Ghaffar Constable Muhammad Nasir another Police Constable who had to bring mail to Bahawalpur also accompanied the complainant. The chains of accused were tightened with belts of Noor Ahmad, F.0 and Muhammad `Qasim, F.0 and Muhammad Azhar, F.0 was armed with SMG and Muhammad Yaqoob with rifle G.3. They also sat in the back portion of the van to guard of the accused.
7. Muhammad Ali, S.I. (complainant) and Muhammad Akram, F.0 were sitting along with the driver in the front seat. When the van crossed the Katarian Check Post on Bahawalpur road and had covered one furlong distance ahead of Katarian Check Post within area of Chak No,12 F.W. At 7-20 a.m. a trolley loaded with sugarcane was standing on the road and all of a sudden, a Jeep emerged from behind the trolley and stopped in front of the Police Van and blocked the road. The driver of the Police Van applied the brakes when 10/12 persons armed with Kalashnikovs. Gun .12 bore, rifles and pistols who were hiding behind the trolley came in front of the van and opened fire and burst the front tyres of the van and took the police officials into custody who were sitting in front seat. Thereafter, they started firing towards the prisoners in the van from right left and back side. The accused namely, Aurangzeb, Alamghir, Hamayun. Abdullah Dita , Muhammad Yaqoob, Abid Hussain Muhammad Shaban, and two Constables Noor Ahmad and Muhammad Qasim who were sitting in the van were killed at the spot. Muhammad Akram, Head Constable, Muhammad Azhar, Nasir and Muhammad Yaqoob, Constables were injured. The accused raised 'Lalkara that they had taken the revenge of murelr of Mazhar Farid. It was further alleged by the complainant that the accused could be identified by him, Muhammad Akram, Constable, Abdul Ghaffar, driver and the injured constables, if they were brought before them. Meanwhile, Shah Sawar, Muhammad Niaz, Mansab Ali and Khadim Hussain relatives of the deceased were also coming behind in their car reached at the spot. They also witnessed the occurrence and saw the accused running from the place of occurrence in their jeep and Pajero and identified them. It was also alleged by the complainant that Shah Sawar and other P.Ws. Chased the accused and disclosed the names of the accused on return.
8. ' After registration of the case Syed Jamat Ali Shah, Inspector P.W.16 arrived at the place of occurrence and took into possession 8 dead bodies of Aurangzeb, Hamayun, Alamghir, Allah Ditta, Muhammad Shaban, Noor Ahmad, Muhammad Qasim and Abid Hussain lying in Police Van and one dead body of Muhammad Yaqoob which was lying on back side of van. Shah Sawar, Mansab and Khadim Hussain, P.Ws. Were also present at the spot. He prepared the injury statement Exh.P.B/2 and inquest report Exh.P.B/3 of. Allah Ditta deceased injury statement Exh.P.C/2 and inquest report Exh.P.C/3 of Aurangzeb; injury statement Exh.P.D/2 and inquest report Exh.P.D/3 Alamghir, injury statement Exh.P.E/3 and inquest report Exh.P.E/4 of Muhammad Shaban and respectively of Abid Hussain Exh.P.F/2 and Exh.P.F/3 of Hamayun Exh.P.G/2 and Exh.P.G/3; of Noor Ahmad Exh.P.G/2 and Exh.P.G/3 of Muhammad Qasim Exh.P.H/2 and Exh.P.H/3 and that of Muhammad Yaqoob Exh.P.K/2 and Exh.P.K/3, and handed over the dead bodies to Allah Ditta for post-mortem examination. He recorded the statement of Shah Sawar, Khadim Hussain, Niaz and Mansab Ali, P.Ws. He collected the bloodstained with the help of cotton from Police Van through Exh.P.O and blood-stained earth from the spot where dead body of Muhammad Yaqoob was lying through Exh.P.O. He also took into possession the Police Van P.1 through Exh.P.L and 16 empties P.2/1- 16 of 44 rifle, 106 empties of .222 bore rifle P.3/1-106, 66 empties P.4/1-66 of Kalashnikov. 3 empties P.5/1-3 of .30 bore pistol, 30 empties P.611-30 of .12 bore gun vide memo. Exh.P.M. He also took into possession 6 handcuffs P.7/1-6, 5 fetters P.8/1-5, .2 Police belts P.9/1-2 all blood-stained through memo. Exh.P.N. All the recovery memos. Were attested by Javed Ali Shah, A.S.I. P.W.7 and Syed Jamat Ali Shah, 1.0/P.W.16. He on 24-1-1996 arrested Nazir alias. Guddu, who while in police custody led to the recovery 222 rifle P.10 and licence P.11 and pistol .30 bore P.12 and its licence P.13 which were taken into possession through memo. Exh.P.P. Nazir alias Guddu subsequently absconded and was declared P.O. During the trial. On the same day, he also arrested Gulzar, Mst. Sakina mother of Muhammad Azam accused, Rasheed Sukhera and Niaz Ahmad Bhandera. On 29-1-1996 he also arrested Noor Muhammad and Muhammad Ashraf. Noor Muhammad while in police custody on the same day led to the recovery of two pistols .30 bore P.64 and P.66 and 9 live bullets P.65/1-9 which were taken into possession . Vide memo. Exh.P.Y. Muhammad Ashraf also on the same day got recovered 222 rifle P.67 and 24 live bullets P.68/1-24 which were taken into possession vide memo. Exh.P.Z. Both the memos. Exh.P.Y and Exh.P.Z were attested by Pervez A.S.I. P.W.8 and Muhammad Mairaj, Head Constable. On 5-2-1996, he arrested Ahmad Nawaz Bhandera, Muhammad Azam and Muhammad Safdar accused. On 19-2-1996, Ahmad Nawaz while in police custody led to the recovery of gun .12 bore P.70 which was taken into possession through memo.
9. Exh.P.BB. Muhammad Azam on the same day led to the recovery of rifle 222. Bore P.71 and magazine P.72 which were taken into possession vide memo. Exh.P.CC. On the same day Muhammad Safdar led to the recovery of rifle 222 bore P.73 and magazine P.74 which was taken into possession through Exh.P.DD. All the recovery memos. Were attested by Mansab Ali P. W;12 and Syed Jamat Ali Shah, P. W.16. On the same day Muhammad Safdar accused also led to the recovery of Suzuki Car P.78 which was taken into possession through memo. Exh.P.FF. On 28-2-1996, Javed Ali Shah, A.S.I.
10. P.W.7 arrested Azhar Farid, Abdul Jabbar, Muhammad Ali and Noor Khan accused and produced them before Jamat Ali Shah, Investigating Officer. Abdul Jabbar while in police custody led to the recovery of rifle .44 bore P.75 which was taken into possession vide memo. Exh.P.EE. The empties and the other articles taken into possession from the place of occurrence were sent for their Chemical Examination and report of .Chemical Examiner was received vide memo. Exh.P.QQ and that of Forensic Science Laboratory Exh.P.SS and Serologist Exh.P.RR. Through report of F.S.L. Exh.P.SS crime empties C.1 to C.16 matched with rifle P.75 got recovered by Abdul Jabbar accused, while empties C.17 to C.33 were tallied with rifle P.71 got recovered by Muhammad Azam and C.64 to C.66 tallied with the rifle P.73 got recovered by Muhammad Safdar accused. Twelve empties of .12 bore gun tallied with gun P got recovered by Muhammad Nawaz accused.
11. ' He arrested Muhammad Nawaz alias Nazi on 8-1-1997. Muhammad Akbar on 26-2-1997 and Muhammad Aslam on 28-2-1997 as they were declared proclaimed offender by the Court and substituted service was effected by Javed Ali Shah. .P.W.7 by affixing the warrants of arrest/proclamation on their residences through Exh.P.V, Exh.P.0 and Fxh.P.X. He recorded the statements of the prosecution witnesses, completed the investigation and submitted the challan.
12. ' Charge was framed by the trial Court. The accused denied the charge and claimed trial.
13. ' During the trial the prosecution examined as many as 18 witnesses to prove the guilt of the accused.
14. ' P.W.6 Dr. Rashid Masood on 22-1-1996 conducted the post-mortem examination on the dead body of Allah Ditta son of Muhammad Ali and found the following injuries on his person:-
(1) Lacerated wound measuring about 2 c.m. x 1 c.m. x going deep x going deep with punched in margins and some burning present on edges of wound situated on the anterior aspect of right upper arm. This was wound of entry.
(2) Lacerated wound measuring about 5 x 1 c.m. x going deep with punched out margins situated on lateral aspects of right arm. This wound was situated in the line of injury No,1 and this was wound of exit of injury No,1.
(3) Lacerated wound measuring about 6 x 1 c.m x going deep with punched in margins situated on the lower part of right side of back (wound of entry).
(4) Lacerated wound measuring about 2 x 1 c.m. Going deep with punched out margins situated on the anterior aspect of right side of chest. Just later to nipple. This was the wound of Exit of injury No,3.
(5) Lacerated wound measuring about 6 c.m x 2 c.m x muscle deep set obliquely with burnt margins situated on left buttock. This was grazed wound.
(6) Lacerated wound measuring about 2 x 1 c.m x going deep with punched in burnt margins situated on the lateral aspects on left knee joint. This was the wound of entry.
(7) Lacerated wound measuring about 2 x 1 c.m.. Going deep with punched out margins situated on the anterior aspect of left knee joint. It was wound of exit of injury No,6.
(8) Lacerated wound measuring about 10 x 7 c.m. Into going deep set vertically with burnt margins situated on the anterior aspects of right lower leg at its lower part. Both bones of tibea and fibula fractured.
15. ' On the same day at 12-00 noon, he conducted the post-mortem examination on the dead body of Aurangzeb son of Muhammad Khan and found the following injuries on his person:-
(1) Lacerated wound measuring about 1-1/4 x 1-'/, c.m. Into going deep with blanket burnt margins situated on lower 1/3rd part of lateral aspects of left upper arm. It was the wound of entry. Bullet taken out.
(2) 3-Lacerated wound each measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the deltoid area of right arm. The right Humerus was fractured. It was the wound of entry.
(3) 3-Lacerated wound measuring about 1 x 1 c.m. x going deep with punched in burnt margins situated on the postrolateral aspect of left side of lower part of chest. It was the wound of entry.
(4) 3-Lacerated wound each measuring about 2 x 1 c.m. x going deep with punched our margins situated on the posterior aspect on the middle of the backing upper lumber region and chest in the line of injury No,3. It was the wound of exit injury No,3.
16. ' On the same day he conducted the post-mortem examination on the dead body of Alamghir son of Muhammad Khan and found the following injuries on his person:-
(1) Lacerated wound measuring about 1-1/4 x c.m. Into going deep with punched in burnt margins situated left side. It was wound of entry.
(2) Lacerated wound measuring about 2 x 2 c.M. Into going deep with punched out margins situated on 1 the right side of neck. It was the wound of exit of injury No,1
(3) Lacerated wound measuring about 3 x 2 c.m. x muscle deep with going margins situated on the right shoulder (grazed wound)
(4) Lacerated wound Measuring about 1-1/4 x 1 c.m. Into going deep with punched in burnt margins situated on postro lateral aspect of right side of chest. It was the wound of entry.
(5) Lacerated wound measuring about 8 x 3 c.m into going deep with punched out margins situated on the middle of the upper part of chest. It was the wound of exit of injury No,4.,
(6) Lacerated wound measuring about 1-1/2 x 1 c.m. Into going deep with punched in burnt margins situated on back of chest, close to the injury No,4
(7) Lacerated wound measuring about 2 x 2 c.m. Into going deep with punched out Margins situated on anterior aspect of chest medial to the right (wound of exit of injury No,6).
(8) Lacerated wound measuring about 1 x 1 c.m into 1 x 1 c.m into going deep with punched burnt margins situated on the posterior aspect lower part of chest right side. It was wound of entry.
(9) Lacerated wound measuring about 8 x 4 c.m into deep with punched out margins situated on the left of chest anterolaterally wound of exit of injury No,8.
(10) Lacerated wound measuring about 2 x 1 c.Minto deep with punched in burnt margins situated on lower part of lateral aspect of left upper arm. It was the wound of entry.
17. (11)Lacerated wound measuring about 4 x 2 c.m into deep with punched out margins situated on the poster() aspects of left elbow joint. Wound of exit of injury No,10..
18. (12)Two lacerated wounds measuring about 1 x 1 c.m into deep with punched in burnt margins situated anterial aspect of middle of tight forearm. It was wound of entry.
19. (13)Lacerated wound measuring about 6 x 4 into deep with punched out margins situated on the postero aspects of middle of right forearm. This was wound of exist of injury No,12.
20. (14)Lacerated wound measuring about 1-V2 x 1-V2 c.m into going deep with punched in margins situated on upper part of right thigh laterally. It was wound of entry.
21. (15)Lacerated wound measuring about .3 x 2 .c.m x deep with punched out margins situated on the costero lateral aspect of right thigh. This was the wound of injury No,14.
22. (16)Lacerated wound measuring about 8 x 3 c.m 'into going deep with burnt margins situated on right knee. It was the greased wound.
23. (17)Lacerated wound measuring, about 1-V2 x 1-1/2 c.m into going deep with punched in burnt, margins situated on the inner side of left thigh at its upper part. This was the wound of entry.
24. (18)Lacerated wound measuring about 4 x 2. c.m into going deep with punched out margins situated on the posterior medial part of left thigh.. It was the wound of exit of injury No,,17.
25. ' Re on the same day at 2-30 p.m., also conducted the post-mortem examination on the dead body of Muhammad Shaban son of Shad Din and found the following injuries on his person:-
(1) Lacerated wound measuring about 1-1/2 c.m x 1-V2 c.m. Into going deep with punched in burnt margins situated right scapula. It was wound of entry.
(2) Lacerated wound measuring about 3 x 2 c.m into going deep with punched out margins situated on right side of chest below the medial end of right clavicle was the wound of exit of injury No,l.
(3) Lacerated wound measuring about 1 x 1 c.m into going deep with punched in burnt margins situated on the lateral part of right cubitalfoss. It was wound of entry.
(4) Lacerated ,wound measuring about 12 c.m x.6 can x bone deep with punched out margins situated on the lateral aspect of upper part of right forearm. Both bona were fractured. It was the exit wound of injury No,3.
(5) Lacerated wound measuring about 3 x 1 c.Rn ifito bone deep situated on the posterior aspect of the right little finger. There was fracture in middle phalanx.
26. ' On the same day at 4-00 p.m. He also conducted the post-mortem examination on the dead body of Abid Hussain son of Shatoon and found the following injuries on his person:-- Lacerated wound measuring about 8 x 2 c.m. Muscle deep with burnt margins situated on the right side of anterior aspect of chest below the right nipple4(grazed wound).
(2) Lacerated wound measuring about 1-1/4 x 1-1/4 c.m. Going deep with punched in burnt margins situated on the postrolateral aspect of the lower part of right upper arm (wound of entry).
(3) Lacerated wound measuring about 2 x 1 c.m going deep with punched out margins situated on inner side of the middle of right upper arm. It was a wound of exit of injury No,2.
(4) 4-Lacerated wound measuring about each 1-1/4 x 1-1/4 c.m into going deep with punched in burnt margins situated on the posterial aspect of right side of chest (wound of entry).
(5) 2- Lacerated wound measuring about 12 x 4 c.m. Into going deep and 10 x 3 c.m. x going deep situated in the left axilla with punched out margins. This is wound of exit of injury No,4.
27. ' He on the same day, conducted the post-mortem examination on the dead body of Noor Ahrnad Constable and found the following injuries on the dead body:--
(1) Lacerated wound measuring 1-'/2 x 1-1/2 c.m into going deep with punched in ' burnt margins situated on the right scapular region. It was wound of entry.
(2) Lacerated wound measuring about 6 x 4 c.m going with punched out margins situated on the lower part, of neck anteriorly above the nanubrium (wound of exit of injury No,3).
(3) Lacerated wound measuring about 10 x. 2 c.m. x skin deep set vertically situated on the lateral aspect of upper of left thigh. The margins were burnt. (it was a grazed wound).
28. ' On the same day, the same doctor conducted the post-mortem examination on the dead body of Muhammad Qasim. Constable and found following injuries on his person:-
(1) Lacerated wound measuring about 8 x 6 c.m. x bone deep with punched out margins situated on the right side of posterial aspect of scalp. The brain matter was coming out and this was grazed -wound.
(2) Lacerated wound measuring about 1-1/2 c.m. x going deep with punched out burnt margins situated on the upper part of the lateral aspect of right upper arm. This is wound of entry.
(3) Lacerated wound measuring about 3 x 2 can. Going deep with punched out margins situated on the innal aspect of right upper arm. This is wound of exit of injury No .2
(4) Lacerated wound measuring about 1-1/2 x 1-1/2 c.m. Into going deep within punched in burnt margins situated on the middle right of the lateral aspect of the chest. This is the wound of entry.
(5) Lacerated wound measuring about 2 x I/2 c.m. Into going deep with punched in burnt margins situated about 8 c.m. Below the injury No,4. This is the wound of entry.
(6) Lacerated wound measuring about 8 x 4 c.m. x into going deep with .Punched out. Margins situated' on the right scapular region. This is the wound of injury No,4.
(7) Bruise (raised place) on the middle of the back of chest, one bullet taken out from it after incision. This' was actually exit place of injury No,5.
(8) Lacerated wound measuring about 1-1/2 x 1-1/2 c.m. Into going deep with punched in burnt margins situated on the aspect of middle of the right lower leg. This was wound of entry.
(9) Lacerated wound measuring about 16 x c.m. Into bone exposed situated on the outer aspect of middle of the right lower leg. Both bones were fractured. It was wound of injury No,8.
29. ' On. 23-1-1996 at 8-30 a.m, the same doctor conducted the post-mortem examination on the dead body of Hummayon son of Muhammad Khan and found the following injuries on his person:-
(1) Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the top of the scalp. It was wound of entry.
(2) Lacerated wound measuring about 10 x 4 c.m. Into going deep with Punched out margins situated on the right side of the leg. It was exit wound of injury No,1
(3) There was bleeding from left ear.
(4) Seven lacerated wound each measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the posterior aspect of right shoulder. It was wound of entry.
(5) Two lacerated wound measuring about 1 x 1 c.m. x going deep into punched in burnt margins - situated on the lower part of left scapula. It was wound of entry.
(6) Lacerated wound measuring about 3 x 1 c.m. Into skin deep situated on the middle of the lateral aspect of right thigh,. It was grazed wound.
(7) 8-Lacerated wound measuring about each 1 x 1 c.m. Into going deep with punched, in burnt margins situated on the left buttock. It was wound of entry.
(8) Lacerated wound measuring about 1-1/2 x 1-'1, c.m. Into going deep with punched in burnt margins situated on the upper part of inner aspect of left thigh. It was wound of entry. And one bullet taken out from the wound.
(9) Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the left thigh about 3 inches above the injury No,9, it was wound of entry.
30. (10)Lacerated wound measuring about 2 x 2 c.m. Into going deep with punched out margins situated on the right side of chest near the nipple, (11)Lacerated wound measuring 4 x 2 c.m. Into going deep with punched out margins situated on the below and lateral to left nipple about six inches. The large intestine was coming out. It was wound of exit.
31. (12)Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the left side 4-inch lateral to the umbilicus. It was wound of entry.
32. (13)Lacerated wound measuring about 1 x 1 c.m. Into going with burnt margins situated on the 2- inch below umbilicus. It was wound of entry.
33. (14)Lacerated wound measuring about 1 x 1 c.m. Into deep with punched in burnt margins situated on the left lateral part of the abdomen. It was entry wound.
34. (15)3-Lacerated wound each measuring about 1 x 1 t.;.m. Into deep with punched in burnt margins situated on the upper of left buttock lateral aspect it was wound of entry.
35. (16)Lacerated wound measuring about 1-1/2 x 1-1/, c.m. Into going with punched in' burnt margins situated on the middle of the lateral aspect of left forearm. It was wound of entry.
36. (17)Lacerated wound measuring about 6 x 2 c.m. Into going deep with punched out margins situated on the medial aspect of left forearm to the -.Opposite to the injury No,17, There was fracture of both radius and ulna.
37. (18)2-Lacerated wound in measuring about 1 x 1 c.m. Into going deep with punched in burnt margins one is situated on the dorsum of left hand and left -irist. It was wound of entry.
38. (19)2-Lacerated wound each measuring about 2 x c.m. Into going deep with punched but margins situated opposite to the corresponding to the entry wound.
39. ' On the same day at 10-00 a.m. He conducted the post-mortem examination of the dead body of Muhammad Yaqoob son of Noor Muhammad and found the following injuries:-
(1) Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the left parital region of scalp. It was entry wound.
(2) Lacerated wound measuring about 8 x 3 c.m. 'into going deep with punched out margins situated on the right parital region of the scalp. It was wound of exit of injury No, 1,
(3) Lacerated wound measuring about 1-1/2 x 1-1/2 c.m. Into going deep with punched in burnt margins situated on the left side of lower part of chest posterial. It was entry wound.
(4) Lacerated wound measuring about 6 x 4 c.m. x going deep with punched out margins situated on the right side of upper part of interiorly aspect of chest. It was wound of exit injury No,3.
(5) Lacerated wound measuring about 1-1/2 x 1-1/, c.m. Into going with punched in burnt margins situated on the dorsum of wrist. It was the entry wound.
(6) Lacerated wound measuring about 6 x 4 c.m. Into bone deep with punched out margins situated on the lital aspect of lower part of right forearm. It was the exit wound of injury No,5.
(7) Lacerated wound measuring about 2 x 1 c.m. Into going with punched in burnt margins situated on the middle of lower part of anterior aspect of chest. It was wound of entry.
(8) Lacerated wound measuring about 5 x 2 c.m. Into going deep with punched in burnt margins situated on the anterior fold of left axilla. It was wound of entry.
(9) Lacerated wound measuring about 8 x 3 c.m. Into going deep with punched out margins situated on the left shoulder the neck. It was wound of exit of injury No,8.
40. (10)Lacerated wound measuring about 1 x 1/2 c.m. Into going deep with punched in burnt margins situated on the anterior aspect of right shoulder. It was wound of entry. P.W.3 Dr. Muhammad Younas Warraich on 22-1-1996 medically examined Muhammad Akram son of Abdul Rehman Constable and found the following injuries on his person:-
(1) 1-1/2 x 1-1/2 c.m. Rounded gutter shape, with inverted margins wound just below right shoulder on its back. It was bone deep. It was Ghair Jaifah Mudiah in nature.
(2) :1 x 1 c.m. Rounded inverted margins wound on the left thoracic region on left lateral aspects. It was bone deep and was declared as Ghair Jaifah Mudiah.
(3) 1 x 1/2 c.m. Inverted margins gutter shape wound on left knee anteriorly. It was Ghair Jaifah Mudiah in nature. Pellets were found in X-ray and could not be removed from the body. Patient was fully conscious. Pulse was 80 per minute. BP was 110/70 mmHg. The duration of injuries was about 2 hours. All these wounds were caused by fire-arms.
41. ' P.W.18 Dr. Muhammad Afzal Saqib on 22-1-1996 medically examined Muhammad Yagoob, Constable No,1028/C and found the following injuries on his person:--
(1) Lacerated wound over right eye lid. Size 1/2 x 1/2 c.m. x 1/2 c.m.
(2) A lacerated rounded wound inverted margins over outer side of right thigh. Size 1'/2 c.m. Dia x deep going. X-ray was advice for this injury.
(3) A lacerated rounded wound with averted margins over inner right thigh, at the junction of right buttock and thigh. Size 4 x 2. c.m. Skin and soft tissue eulsed from the site (exit wound). It was continuous with injury No,2.
(4) An oval wound with averted margins over left buttock size 2 x 2\\, c.m. x deep going (exit wound).
(5) A lacerated oval wound with inverted margins over back of left upper thigh. Size was 1'/2 c.m.
42. Dia x deep going it was continuous with injury No,4. No burning and tattooing for all the wounds.
43. Corresponding holes present in trouser for injuries No,2,3,4 and 5.
(6) A lacerated wound over outer side of right knee size 11/2 x 1 c.m. x muscle deep X-ray was advised.
44. ' On the same day, the same doctor medically examined Muhammad Azhar C/1069 and found the following injuries on his person:--
(1) A lacerated rounded wound within inverted margins over outer aspect of right upper arm. No burning no tattooing. Corresponding holes present over Qamiz.
(2) A lacerated rounded wound within inverted margins over back of right side of upper chest. Size 1 dia x deep going. No burning no tattooing. Corresponding holes present in Qamiz. No respiratory distress. Patient cannot move his right hand and arm. Sensation in right hand and distal part of right forearm were missing. X-ray was advised for both injuries. Vide MLC X-rays No,173 and 174 for chest. A radio opaque shadow of metallic intensity seen. It was of 11/2 c.m. Dia and was circular.
45. Lung tissue was normal. No bony fracture as was seen. Vide MLC X-ray No,175 for right upper arm.
46. There was seen radio opaque shadow deranged pieces of bullet no bony fracture was seen.
47. Patient was referred to B.V Hospital Bahawalpur for further treatment.
48. ' On the same day he also medically examined Nasir Zaman C/315 and found the following injuries on his person:
(1) A lacerated oval wound over inner aspects of right forearm 7 c.m. From right wrist. Size 2 x 1 x deep going. Margins were inverted no Burning no tattooing. Corresponding holes present over Qamiz and coat.
(2) A lacerated rounded wound over middle of outer side of right forearm. Size 1 c.m. Dia x deep going. No burning no tattooing. Corresponding holes present over Qamiz and coat.
49. ' P.W.1 Zulfiqar Ali identified the dead body of his brother Allah Ditta, deceased. Abdul Latif, P.W.2 identified the dead body of his maternal uncle Muhammad Yaqoob, Dr. Muhammad Younas, P.W.3 medically examined Muhammad Akram, FC P.W.13. Muhammad Yasin FC was examined as P.W.4 who had deposited the sealed parcels with Moharrar Muhammad Iqbal P.W. And subsequently at the respective destination for chemical examination and F.S.L. Muhammad Iqbal Moharar was examined as P.W. 5 who had kept the sealed parcels of empties, the other incriminating articles taken into possession from the spot and the weapons of offence recovered from the accused during the investigation in Maalkhana and he stated that during this period nobody tampered with the sealed parcesl. Dr. Rasheed Ahmad, P.W.6 had conducted the post-mortem examination on 22-6-1996 on the dead bodies of Allah Ditta. Aurangzeb, Alamghir. Muhammad Shaban, Abid Hussain, Noor Ahmad (FC) and Muhammad Qasim (FC) and on 23-7-1996 he conducted the post- mortem examination on the dead bodies of Hamayun and Muhammad Yaqoob, deceased, Javed Ali Shah, A .S.I. Was examined as P.W.7 who had attested the recovery memos. Of the articles taken into possession by Jamat Ali Shah, Investigating Officer P.W.16 from the spot. Pervez Iqbal P.W.8 also attested the recovery memos. Along with Javed Ali Shah. P.W.7 Shah Sawar was examined as P. W.9 who was eye-witness of the occurrence. - He stated that on the day of occurrence he alongwith others were sitting in house of his mother-in-law when Atta Muhammad Nawaz told them that all the accused above named in the F.I.R. Had hatched up conspiracy to commit the instant crime. He was following the police van in his car along with Mansab Ali P.W.12 and others and witnessed the occurrence. He had identified the accused at the place of occurrence. He nominated all the appellants in his statement under section 161 Cr.P.C. Got recorded at the spot and also identified the appellants in the trial Court by their respective roles played by them during the occurrence. He also narrated the motive for the alleged occurrence stating that Mazhar Farid son of Mst. Sakina was murdered on 1-4-1995 and Aurangzeb, Hamayun, Alamghir, Abid Hussain and Allah Ditta were facing trial before Anti-Terrorist Court Bahawalpur and to take revenge of the said murder instant offence was committed by the accused. He was also witness of hatching conspiracy by the accused and was informed by Muhammad Nawaz and. Attah Muhammad. Muhammad Azhar, FC injured in the same occurrence was examined as P.W.10. He was eye-witness of the occurrence and nominated the accused in his statement. Under section 161, Cr.P.C. Recorded on the day of occurrence. He was cousin of Shah Sawar P.W.9. Muhammad Yaqoob, FC was examined as P.W.11.
50. He was also member of the police party taking the accused in the Police Van to the Court at Bahawalpur. He got the statement recorded under section 161 Cr.P.C. He was also injured in the same occurrence. Mansab Ali was brother of Muhammad Yaqoob deceased. He was examined as P.W.12. He was travelling in the car along with Shah Sawar, P.W.9. Muhammad Akram, FC was injured in the same occurrence and was examined as P.W.13. Muhammad Shafiq Patwari P.W.14 had prepared the site plan of the place of occurrence. Muhammad Ali, S.I. Got the F.I.R. Exh.P.H recorded was examined as P.W.15. He supported the contents of the F.I.R. While Jamat Ali Shah who investigated the case was examined as P.W.16. He recorded the statements of the prosecution witnesses and arrested the accused, effected the recoveries and submitted the challan of the case. Ijaz Ahmad Moharrar /FC was examined as P.W.17, who had produced the F.I.R. No,38 of 1995 got recorded at Police Station Donga Bonga for commission of murder of Mazhar Farid by Muhammad Azam deceased. Dr. Muhammad Afzal Saqib was examined as P.W. 18, who on 22-1- 1996 had medically examined Muhammad Yaqoob, FC P.W.11.
51. ' The statements of the appellants / accused were recorded under section 342 Cr.P.C. Towards the end of the trial. They denied the allegations and claimed their innocence and false involvement due to mala fide by Shah Sawar and in collusion with Muhammad Ali S.I.
52. ' The trial culminated into conviction of the appellants as mentioned above.
53. ' Muhammad Azarsi, Ahmad Nawaz, Muhammad Safdar, Abdul hbbar, Noor Ahmad alias Noora.
54. Muhammad Ashraf alias Ashri, Muhammad Nawaz alias Nazi and Muhammad Aslam have filed Criminal Appeal No,25 of 1998 against their conviction and sentence Muhammad Safdar has also filed Criminal Appeal No,26 of 1998 against his conviction and sentence. Shah Sawar has filed Criminal Appeal No,27 of 1998 against the acquitted co-accused and Criminal Revision No,28 of 1998 for enhancement of compensation and sentence of the accused. The trial Court has sent up Murder Reference No,6 of 1998 for confirmation of death sentence. Hence all the matters being outcome of the same judgment are being disposed of by the single judgment.
55. ' Mr. Ijaz Hussain Batalvi Senior Counsel has argued case on behalf of Muhammad Azam, Ahmad Nawaz, Abdul Jabbar alias Bari, Muhammad Nawaz, Muhammad Akram, Muhammad Aslam and Muhammad Safdar while Sardar Muhammad Latif Khan Khosa, learned counsel has argued case on behalf of Noor Ahmad alias Noora Mr. Muhammad Ahsan Bhoon and Mr. M.D. Tahir, learned counsel have addressed arguments on behalf of Muhammad Ashraf alias Ashri appellant Mr. Ehsan Qadir Shah learned counsel has opposed the appeal and argued on behalf of Shah Sawar in support of his Criminal Appeal No,27 of 1998 and Criminal Revision No,28 of 1998. Mrs. Roshan Ara, learned Assistant Advocate General has represented the State.
56. ' The learned counsel for the appellants have argued:--- ' That the evidence of conspiracy has been disbelieved by the trial Court, therefore, following the Police Van by Shah Sawar P.W.9 and Mansab Ali, P.W.12 and their availability at the place of occurrence is not correct. Had they been present at the spot, the case would have been got registered by them or they would not have been spared by the assailants. They were called by the police subsequently and have been introduced as eye-witnesses; That the accused were not identified by any of the prosecution witnesses. Muhammad Ali, S.I. Complainant had stated in F.I.R.
57. That the accused can be identified by him and the other injured police officials who were Muhammad Akram, Muhammad Yaqoob and Muhammad Azhar, if they are brought before them, therefore, identification parade of the accused was essential. The identity of the accused has not been established by the prosecution; That the names of the accused were not even mentioned in the inquest reports which shows that they were nominated subsequently after consultation and deliberations with mala fide intentions; That the recoveries of the weapons of offence were planted and the parcels of crime empties were dispatched after more than 35 days when the accused were arrested and weapon of offence have already been recovered, therefore, the report of Forensic Science Laboratory which shows that the empties tallied with the weapons got recovered by Muhammad Azam, Ahmad Nawaz, Abdul Jabbar and Muhammad Safdar accused has no evidentiary value; That no independent witness was associated in the recovery proceedings of the weapons of offence; That Shah Sawar P.W.9 and Mansab Ali P.W.12 ~are close relative of deceased and the prosecution has not examined any independent witness. The prosecution story is unbelievable; That Muhammad Yaqoob P.W.1 and Muhammad Akram P.W.13 were declared hostile and they had not identified the accused. Likewise, Muhammad Ali, SI complainant of the case had also not identified the accused in the Court. Their statements cannot be relied upon; That the motive alleged for the occurrence has not been corroborated by any independent source; That if the accused were not identified or their identification has not been established then question of corroboration by recovery of the weapons of offence or by motive or medical evidence is of no use to the prosecution, therefore, the prosecution has failed to prove its case against the appellants beyond any shadow of doubts. Shah Sawar P.W.9 has committed the offence in collusion of Muhammad Ali, S.I. To eliminate the family of Aurangzeb etc. To usurp their land.
58. ' Conversely the appeal has been opposed by learned counsel for the complainant and learned A.A-G. They have supported the impugned judgment and learned counsel for the complainant has prayed for enhancement of compensation, and sentence of Muhammad Safdar who has been awarded lesser penalty merely on the basis of his minority which according to the learned counsel is no ground for lesser sentence. He also pressed his appeal against the acquitted accused.
59. ' We have given our due consideration to the contentions raised at the bar and have minutely perused the record.
60. The unfortunate occurrence took place at 7-20 a.m. On 22-1-1996 and F.I.R. Was got recorded at the Police Station Hasilpur at a distance of 14 K.M. From the place of occurrence at 8.30 p.m. Which was admittedly against unknown persons and it was stated by Muhammad Ali, S.I. P.W.15 in the F.I.R.
61. That Shah Sawar, Muhammad Niaz and Mansab Ali son of Noor Ahmad and Khadim Hussain relative of the deceased / victims had arrived at the place of occurrence who were following the Police Van and they had witnessed the occurrence and identified the accused and they had gone in chase of the accused and will disclose the names of the accused on their return. The F.I.R. Was - recorded promptly at the Police Station. The names and particulars of these witnesses were mentioned in the . F.I.R. The statements under section 161 Cr.P.C. Of Shah Sawar, P.W.9 and Mansab Ali, P.W.12 were recorded on the same day by the Investigating Officer Jamat Ali Shah at the place of occurrence. While statements of Muhammad Akram, F.C., P.W.13 who was admitted in hospital at Hasilpur and Muhammad Azhar, P. W . 10 and Muhammad Yaqoob P.W.12 who were admitted in the Hospital at Chishtian were also recorded on the same day. They nominated all the accused in their statements. Shah Sawar P.W.9 also signed the inquest reports, which proves his presence at the spot. Shah Sawar and Mansab Ali P.Ws. Both had nominated all the accused by their role on the first day at the place of occurrence. The presence of Shah Sawar P.W.9 and Mansab Ali P.W.12 at the spot cannot be doubted, as it is common practice that the relatives of the parties attend the Court hearing and by their coming behind the Police Van is natural and believable. The complainant Muhammad Ali P.W.15 has explained that the relatives of the deceased have gone in chase of the culprits and he being In charge of the Guard and custodian of the deceased reported the commission of heinous crime without delay. By mere fact that their statements were recorded at the spot the entire prosecution case cannot be discredited. Their statements can be scrutinized with care and caution to eliminate chances of false involvement, therefore, corroboration from independent source is to be sought in this case. The weapons of offence were got recovered by Ahmad Nawaz, Muhammad Azam, Abdul Jabbar Noor Alimad and Muhammad Ashraf alias Ashri which were sealed into parcels and dispatched for its comparison. The parcels of empties were also sent to Forensic Science Laboratory. The empties taken into possession tallied with the weapons of offence got recovered by Muhammad Azam, Ahmad Nawaz, Abdul Jabbar and Muhammad Safdar which corroborates their active participation in the occurrence. While report of F.S.L. Was negative in case of Noor Ahmad alias Noora and Muhammad Ashraf alias Ashri. Had the prosecution tampered with sealed parcels of the empties and had to plant the weapons of offence then in case of these two appellants Noor Ahmad and Muhammad Ashraf the positive report could have been procured by the prosecution.
62. ' The motive of the case has also been established against the appellants Muhammad Azam, Ahmad Nawaz, Abdul Jabbar and Muhammad Safdar as per nitration of Muhammad Ali S.I. In F.I.R.
63. That the assailants had raised Lalkara that they had taken the revenge of murder of Mazhar Farid.
64. The defence plea and stand of the accused that occurrence has been committed by the Shah Sawar to eliminate the family of Aurangzeb and others in order to usurp their property through his wife is ridiculous and afterthought. The deceased have their legal heirs who had to inherit the property instead of wife of Shah Sawar. The motive alleged by the prosecution has been proved.
65. ' The main stress of learned counsel for the appellants is about the identity of the accused. It is correct that Muhammad Ali, S.I. Had stated in the F.I.R. That the accused can be identified by him and other injured police officials if they be brought before them and admittedly identification was not held, therefore, Muhammad Ali, S.I. Had not identified the accused/appellants even in the Court during' the trial but regarding Muhammad Azhar P.W.10, Muhammad Yaqoob P.W.11 and Muhammad Akram P.W.13 how he could state that they had not identified the accused.
66. Muhammad Azhar P.W.10 is although relative of Shah Sawar P.W.9, he was police constable and was seriously injured in the occurrence, and his presence at the spot is admitted. He nominated all the accused in, his statement recorded under section 161 Cr.P.C. On the same day. He also identified all the accused by their role in the Court. He has no direct enmity against the appellants for their false implication. Mere relationship with the deceased or the other prosecution witnesses is no ground to discard testimony of the witness. Reliance can be placed in this regard on 1997 SCM R 89, Muhammad Ahmad and another v. State and 2000 SCM R 383, Naila Tarannum Jamshed v. Haji Muhammad Abbas and 4 others. Presence of Muhammad Yaqoob P. W.11 and Muhammad Akram P.W.13 at the spot is also admitted as they were also injured in the occurrence. Both of them nominated the accused in their statements under section 161 Cr.P.C. And also in their examination- in chief but made concessional statement in favour of the accused during their cross-examination, on which they were declared hostile by the prosecution and were cross-examined by both the sides. Learned counsel for both the parties have placed reliance. On 1996. SCMR 678, State v. Abdul Ghaffar, wherein after evaluating the entire case-law, Hon'ble Supreme Court, to adjudge testimony of a hostile witness; has laid down at page 684 in para-II as under:- "It is settled that the testimony of a hostile witness cannot be altogether left out of consideration.
67. The evidence of a hostile witness has to be considered like the evidence of any other witness, but with a caution for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it would be for the Court to decide in what voice he speaks the truth. In such cases, the determining test is corroboration from independent source and conformity with the remaining evidence."
68. ' After going through the statements of these two witnesses, we find that they had admitted the, occurrence and place of occurrence and receiving injuries at the hands of the accused. They nominated the accused in their examination-in-chief. They also admitted of making statements before the Investigating Officer under section 161 Cr.P.C. But gave some concession to the accused during the cross-examination. The cross-examination of Muhammad Akram P.W.13 was reserved on behalf of the accused and few adjournments were sought and ultimately when he was examined on 28-3-1998, he gave these concessions by saying that he had not identified the accused. He supported the main prosecution case, therefore, mere by his some concessional statement his remaining evidence cannot be ignored and can be relied upon in support of the prosecution version.
69. ' After deep re-appraisal of evidence we are convinced that the prosecution case has been established against Muhammad Azam, Abdul Jabbar, Muhammad Safdar and Ahmad Nawaz by ocular account furnished by Shah Sawar P.W.9, Muhammad Azhar F.C., P.W.10, Muhammad Yaqoob F.0 .P. W.11 Mansab Ali P.W.12 and Muhammad Akram F.C., P.W.13 corroborated by motive recovery of weapons of ,offence tallied with the crime empties and the medical evidence.
70. As far as case of Muhammad Nawaz alias Nazi, Muhammad Akbar and Muhammad Aslam is concerned, they were duly nominated by all the four prosecution witnesses with their role; they absconded and were ultimately arrested on 8-1-1997, 26-2-1997 and 28-2-1997 respectively. The warrants of arrest were affixed at their respective residences by Javed Ali Shah P.W.7 and absconsion is sufficient corroboration for their involvement to hold them guilty, therefore, their involvement in the commission of crime is also established.
71. ' We do not find any infirmity of the reasons, misreading or mis-appreciation of evidence in the impugned judgment. Therefore, Appeal No,25 of 1998 and No,26 of 1998 filed by Muhammad Azam, Ahmad Nawaz, Abdul Jabbar alias Bari, Muhammad Nawaz alias Nazi, Muhammad Akbar, Muhammad Aslam and Muhammad Safdar is dismissed, their conviction and sentence is maintained. Death sentence of Muhammad Azam, Ahmad Nawaz, Abdul Jabbar alias Bari, Muhammad Nawaz alias Nazi, Muhammad Akbar and Muhammad Aslam is confirmed and Murder Reference to their extent is answered in affirmative.
72. The case of Noor Ahmad and Muhammad Ashraf alias Ashri is distinguishable from the other appellants. The weapons of offence 'were recovered from their possession but the empties taken into possession from the spot did not tally with the weapons of offence. The ocular account narrated by the prosecution witnesses against them has not been corroborated from any independent source. Their case is at par with acquitted co- H accused who were also allegedly present at the spot but not actively participated, in commission of murder of the deceased therefore, their appeal is allowed and they are acquitted of the charge and ordered to be set at liberty forthwith if not required to be detained in any case. Murder Reference to their extent is answered in the negative.
73. ' Criminal Appeal No 27 of 1998 and Criminal Revision No,28 of 1998 filed by Shah Sawar are dismissed having no force.