Through the present appeal Nazar Abbas' and Shafqat Abbas sons of Riaz Hussain (real brothers) and Mujahid Hussain son of Mahmood ul Hassan, have challenged the judgment dated 25-10-1999 rendered by Pir Akhtar Hussain Bodla, Judge, Special Court No,2 (Anti-Terroristn) Mulian, in case F.I.R. No, 54 of 1995 registered at Police Station Saddar Mailsi, on 12-2-1995 for offences under sections 302/324/34, P.P.C.
2. The learned trial Court convicted the appellants under section 302(b). P.P.C. for causing the murder of Hafiz Fayyaz Ahmad, Kaley Khan and Muhammad Ramzan, and sentenced them to suffer imprisonment for life on each count. , All the appellants were also convicted under sections 324/34, P.P.C. for causing injuries to the P.Ws. namely Faiz Bakhsh P.W.6, Ghulam Rasool P.W.8 Ashiq Hussain P.W.12 and Muhammad 'Aslam, Zawar Ahmad and Muhammad Rafiq (not produced) and sentenced them to undergo 10 years R.I. on each count. The appellants were also to pay fine of Rs,20,000 each on each count, in default whereof the appellants were to suffer further R.I. for six months on each count. However all the sentences were to run concurrently and benefit of section 382-B, Cr.P.C. was extended to the appellants.
3. The occurrence took place inside the Madrassa Eslah-e-Muslimeen at about 8-30 p.m. on 12-2- 1995 when the deceased and the P.Ws. were busy in their Namaz-e-Taravi within the vicinity of Mouza Karampur, Tehsil Mailsi. Through Exh.P.A Qari Muhammad Nawaz P.W.5 informed Muhammad Akram. S.I. P.W.22. who reached the place of occurrence at about 9-15 p.m. on the same night. Briefly it was stated in the complaint that complainant Qari Muhammad Nawaz was Imam Masjid in Madrassa Eslah-e-Muslimeen. At about 8-30 p.m. his pupil Hafiz Fayyaz' Ahmad was leading Namaz-e-Taravi. when 9th Rakat was being performed Kalashnikov burst hit the Namazies who were present in the compound of the Mosque from their behind. Hafiz Fayyaz Ahmad, Muhammad Ramzan. Kaley Khan, Faiz Bakhsh, Muhammad Aslam, Zawar Ahmad, Muhammad Rafiq Ghulam Rasool and Ashiq Hussain were injured due to firing and the condition of Muhammad Ramzan, Kaley Khan and Hafiz Fayyaz Ahmad was critical, therefore, Sh. Maqbool Ahmad and Haji Allah Bakhsh took the injured on Bus to the Hospital at Vehari. Muhammad Rainzan injured was taken in a car to the Hospital at Mailsi. It was further stated that Altaf Hussain, a sweet merchant, who had a shop adjacent to the Mosque informed that three persons out of Whom one had muffled his face and was armed with a Kalashnikov alongwith another medium height person also armed with Kalashnikov came in a Toyota Corolla car from Mailsi and both the persons alighted from the car while the third person remained in the car on driving seat. One of them having beard kept standing at the main gate, while the other persons entered inside the Mosque and fired burst with Kalashnikovs. Hafiz Fayyaz Ahmad and Kaley Khan lost their lives while they were on their way to Hospital. It was also stated that the complainant and the P.Ws. belonged to Fiqa-e-Hanfi (Deovband Ahl-eSunat) and that due to sectarian differences the murderous assault was launched upon the members of Anjuman Sipah-e-Sahaba by the opposites. On the basis of this statement formal F.I.R. No, 54 Exh.P.A/1 was recorded by Latif Ullah, Muharrar/Head Constable P.W.21. Subsequently Muhammad Ramzan also succumbed to the injuries.
4. On the same date i,e, 12-2-1995 P.W.22 Muhammad Akram S.I., took into possession the pieces of blood-stained mats where the blood of Muhammad Ramzan, Hafiz Fayyaz Ahmad and Kaley Khan had fallen through memos. Exh.P.B, P.0 and P.D. 11 empties of Kalashnikov bullets P.1/1-11 were also recovered from the spot and taken into possession vide memo. Exh.P.G. Four leads of bullets P.1/1-4 were recovered from the place of occurrence and taken into possession vide memo. Exh.P,.H. All these memos. Were signed by Manzoor Ahmad, P.W.3, Muhammad Akram, S.I. P.W.22 and Muhammad Hussain, who was not produced.
5. Nazar Abbas appellant arrested on 9-10-1995 by Rab Nawaz Inspector P.W.23, Shafqat Abbas appellant was arrested .In 26-1-1997 while Mujahid Hussain appellant was arrested on 28-4- 1997.Co-accused Zahid Abbas remained proclaimed absconder and could not be tried.
6. During trial the progecution produced 23 witnesses to support its case. Qari Muhammad Nawaz- complainant, appeared as ;P. W.5 and stated about the occurrence but he was not an eye-witness.
P.W.6 Faiz Bakhsh, Ghulam Rasool P.W.8 and , Ashiq Hussain P. W.12 appeared as injured witnesses.
However, they did not identify the appellants as accused during trial. Out of these three P.Ws. Faiz Bakhsh P.W.6 stated that he had seen the assailants, who were not those present in the Court. Dr. Abdul Razzaq P.W.9 conducted the postmortem examination upon the dead bodies of Hafiz Fayyaz Ahmad, Kaley Khan and Muhammad Ramzan and attested his postmortem reports Exh.P.S, P.V and P.W. Dr. Gulzar Ahmad Nadeem appeared as P.W.4 and stated that he examined Ghulam Rasool P.W.8, Faiz Bakhsh P.W.6 Ashiq Hussain P.W.12 on 12-2-1995. The ocular evidence vis- a-vis Shafqat Abbas and Mujahid Abbas appellants was furnished by P.W.10 Haji Allah Bakhsh.
P.W.11 Muhammad Sharif and P.W.15 Sh. Bashir Ahmad implicated Nazar Abbas appellant. Rana Muhammad Afzal S.-I. P.W.20, Muhammad Akram, S.-1. P.W.22 and Mehr Rab Nawaz, Inspector P.W.23 appeared as Investigating Officer, while Latif Ullah, Head Constable-Muharrar appeared as P.W.21 and stated about the recording of formal F.I.R. The rest of the witnesses were formal in nature.
7. The statement of Mujahid Hussain was recorded under section 342, Cr.P.C. wherein he denied the allegation and stated that he was involved in the case because he was a member of Shia sect. Nazar Abbas and Shafqar Abbas, appellants stated that they were implicated falsely in the case because they belonged to Shia sect. They further stated that they had never visited Karampur.
However, all the appellants refused to appear as witness as contemplated by section 340(2), Cr.P.C. in their defence and also did not produce any defence evidence.
8. The learned counsel for the appellants has argued that no case is made out against the appellants as injured P. Ws. did not implicate them during the trial and the rest of the witnesses were only chance witnesses and were not trustworthy.
9. Conversely, the learned Additional Advocate General appearing on behalf of the State has argued that the prosecution has successfully proved its case against the appellants.
10.I have heard the learned counsel for the parties and gone through the entire evidence of the case and the impugned judgment. P.W.6 Faiz Baldish, P.W.8 Ghulam Rasool and P.W.12 Ashiq Hussain, who were injured during the occurrence, appeared before the Court and did not implicate the appellants, who were facing the trial, rather P.W.6 went one step ahead stated that he had seen the assailants and according to him the appellants, who were facing the trial were not the actual culprits. In these circumstances, their evidence is relevant to the fact that the tiring was made through the Kalashnikovs at the relevant time in the compound of the Mosque when Namaz-e- Taravi was being performed. Nazar Abbas appellant was implicated by P.W.11 Muhammad Sharif and P.W.15 Sh. Bashir Ahmad, P.W.17 stated that he alongwith. Bashir Ahmad P.W.15 was sitting at the road side when one car arrived and he could identify Nazar Abbas appellant, and the other person had muffled his face. According to this P.W. Nazar Abbas accused was empty-handed at that time while the other person, who was accompanied him was equipped with Kalashnikov. These two witnesses also stated that three other persons were kept sitting in the car, which was moving towards the Mosque. According to these witnesses they heard tiring in the Mosque and they saw that Nazar Abbas alongwith unidentified accused boarded the car, then the car left towards Mailsi.
P.W.11 is father of Hafiz Fayyaz Ahmad deceased. His statement under section 161, Cr.P.C. was not recorded for more than 41/2 months after the occurrence. According to the record, his statement alongwith the statement of Sh. Bashir Ahmad, who was with him, was recorded on 21-6-1995. No plausible explanation could be given by these two witnesses as to why they did not appear before the police and stated about the occurrence for such a long time. P.W.11 admitted that he remained associated with the police at least 15 days after the occurrence but he did not disclose the facts to the police. He also stated that he was sitting alongwith P.W.15 at a distance of 300 yards from the place of occurrence. He also admitted that he identified Nazar, Abbas also in the police lock-up. He never knew his name nor he ever disclosed his name to the police. P.W. 15 also admitted that he had been with Qari Muhammad Nawaz complainant but he did not disclose about Nazar Abbas- appellant to himto the police at all for more than four months. He also stated that he identified Nazar Abbas in the Police lock-up. During cross-examination he admitted that earlier part of the statement made by him recorded by the Court, wherein he stated that he did not disclose anything to Qari Muhammad. Nawaz or the police was incorrect and the latter part of his statement was correct, therefore, hardly any reliance can be placed on such witnesses. The name of Nazar Abbas has also not been mentioned in the list of accused in the site plan. The statement of these two witnesses were also opposed the statement of P.W.10, which was recorded on the date of occurrence. As according to P.W.10 there were only three accused,' while according to these witnesses there were five witnesses. P.Ws. 11 and 15 have also not been able to name any other accused except Nazar Abbas to whom they identified in the police lock-up. No test identification parade was held in this case. P.W.10 has also not named Nazar Abbas in his statement. No recovery was effected from him. In these circumstances, the prosecution has failed to prove its case against Nazar Abbas-appellant, Resultantly, I set aside the judgment dated 25-10-1999 to the extent of Nazar Abbas-appellant. He is acquitted of all the charges. He would be released from jail it not required in any other case.
11. Haji Allah Bakhsh appeared as P.W. 10 and stated that on the fateful day and at the relevant time he was on his way to Mosque Madrassa Eslah-e-Muslimeen (place of occurrence) when he saw that a white colour car was parked adjacent to the Mosque and Shafaqat Abbas was sitting at the driving seat of the car. In the meanwhile, he heard firing coming out of the Mosque and saw that Mujahid Hussain armed with a rifle was coming out from the Mosque and Zahid Hussain absconding accused, was following him. It was further stated by him that Zahid Hussain fired at the gate of the Mosque. Mujahid Hussain and Zahid Hussain boarded the car and left the scene of occurrence. This P.W. duly identified the appellants Shafqat Abbas and Mujahid Hussain. He also stated before the Court that he already knew these two appellants. The statement of this P.W. was recorded on the same night at about 11-30 p.m. He gave a straight forward account and did not implicate Nazar Abbas appellant, who was also facing the trial alongwith other co-accused. This P.W. was subjected to very lengthy cross-examination extending to more than eight pages. When a witness is subjected to such a lengthy cross-examination it is very natural that some discrepancies would crop up and in this situation the minor discrepancies should be ignored as laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Shafi v. The State (PLD 1967 SC 167). When his evidence is taken as a whole. it rings of truth. His evidence cannot be rejected on the sole ground that other witness, who was statedly sitting with him at the time of occurrence was not produced during the trial.
12.The medical evidence furnished by Dr. Abdul Razzaq P.W.9 who conducted the post-mortem on the dead bodies and Dr. Gulzar Ahmad Nadeem P.W.4 who medically examined the injured P.Ws. fully support the prosecution version. Similarly the recoveries effected from the place of occurrence also lend support and corroborate the version of the P.W.10.
13.The learned counsel for the appellants has argued that there were many shops near the place of occurrence but none from the shopkeepers appeared or cited as a witness. Three persons lost their lives and six persons were injured and innocents were losing lives daily due to the sectarian intolerance. In such circumstances it is not likely that a small businessman would risk his life and appear against the accused especially when there is no arrangement available in our country for protection of the life of a witness. I am further fortified in my afore-eferred view by the fact that the injured P.Ws. did not have a courage to implicate the appellants, who were facing trial. P.W.6, injured, has stated that the accused facing trial were not the real culprits but it is understandable that he stated so only due to fear. His evidence is not of much value. as at the time of occurrence he was saying his Namaz and the firing was made from his back suddenly and without any lalkara.
14. For what has been discussed above, I am of the opinion that the prosecution has been able to prove its case beyond doubt against Shafqat Abbas and Mujahid Hussain appellants. They have been rightly convicted under section 302(b), P.P.C. on three counts and sentenced to life imprisonment on each count, therefore, their conviction under section 302(b), P.P.C. is maintained.
However, Muhammad Rafiq, Zawar Ahmad and Muhammad Aslam. who were injured during the occurrence never appeared before the trial Court, the conviction under sections 324/34, P.P.C. qua the appellants could not be maintained to their estimate. While P.W.8 Ghulam Rasool and P.W.12 Ashiq Hussain appeared before the Court and stated that they had sustained injuries during the occurrence, therefore, offence qua the appellants under sections 324/34, P.P.C. was attracted in the circumstances of the case. Resultantly Shafqat Abbas and Mujahid Hussain, appellants, are convicted under sections 324/34, P.P.C. for causing injuries to P.W.8 and P.W.11. Their sentence of 10 years' R.I. on two counts is maintained with fine of Rs,20,000 on two counts is also maintained. In case of non-payment of fine the appellants Shafqat Abbas and Mujahid Hussain would further suffer R.I. for six months on two counts. The sentences would run concurrently. The benefit of section 382-B, Cr.P.C. already extended to the appellants is maintained.
15. With this modification, this appeal vis--vis Shafqat Abbas and Mujahid Hussain is dismissed.