' ASIF SAEED KHAN KHOSA, J.---Muhammad Tayyab alias Sajjad appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 13-4-2001 handed down by the learned Judge, Anti-Terrorism Court, Faisalabad and was sentenced to death by way of Ta'zir and to pay a sum of Rs,2,00,000 to the heirs of Ibrar Hussain deceased by way of compensation under section 544-A, Cr.P.C. The said appellant was also convicted for an offence under section 7 of the Anti- Terrorism Act, 1997 and was sentenced to death and to pay a fine of Rs,1,00,000 or in default of payment thereof to undergo rigorous imprisonment for seven years. Through the same judgment Qari Maqbool Ahmad and Ghazanfar Abbas appellants were convicted for an offence under section 120-B, P.P.C. Read with section 302, P.P.C. And were sentenced to rigorous imprisonment for ten years each. Through the same judgment Ghulam Murtaza and .Abdul Razzaq co/ accused were acquitted by the learned trial Court. Two accused persons namely Hafeez Ullah alias Israr and Abdul Rehman alias Manna had become proclaimed offenders in this case and their case was separated by the learned trial Court. Muhammad Tayyab alias Sajjad and Qari Maqbool Ahmad appellants have challenged their convictions and sentences before this Court through Criminal Appeal No, 1814 of 2001 whereas Ghazanfar Abbas appellant has filed Criminal Appeal No, 591 of 2001 in that regard. We have heard both these appeals alongwith Murder Reference No, 15-T of 2001 seeking confirmation of the sentences of death passed against Muhammad Tayyab alias Sajjad and we propcise to decide all these matters together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Malik Murid Ali Akhtar complainant was a resident of House No, 501, Railway Road, Mohallah Eid Gah, Toba Tek Singh and had established a confectionary/shop in his house, At about 6.30 a.m. On 3-5-2000 the complainant and his son namely Lal Hussain were present at their shop and the complainant's other son namely Ibrar Hussain, Advocate was sitting outside of that shop on a chair when two persons of medium height and built, aged about 20/25 years each, one of whom had a beard, came there on a motorcycle from the side of the Eid Gah. Both the said persons were armed with a Kalashnikov each and the complainant claimed in the F.I.R. That he could identify them if they were brought before him. When the said persons came close to the complainant party they stopped their motorcycle and the person wearing a beard started firing from his Kalashnikov at the complainant's son namely Ibrar Hussain which fires were received by the latter at his chest and he fell down. Thereafter, more shots were fired at the said son of the complainant while in a fallen condition which shots hit him at various parts of his body. According to the complainant some bullets had also pierced through the complainant's Shalwar without causing him any injury. After that the culprits went away towards Haidari Chowk while brandishing their weapons. The complainant's son namely Ibrar Hussain succumbed to his injuries and died at the spot. The said occurrence had also been witnessed by the complainant's son namely Lal Hussain and one Jaffar Ali (P.W.3) who was also present at that time at his own Tandoor situated nearby. It was understood by the complainant that his son had been made a victim of terrorism only because the complainant party belonged to Fiqah-eJaffaria.
Upon receipt of an information about the said occurrence Ali Hussain, S.I. (P.W.16) reached the place of occurrence and recorded a statement of the complainant in that regard at 7-00 a.m. On the same day on ,the basis of which F.I.R. No, 209 was registered at Police Station City, Toba Tek Singh at 7-15 a.m. On 3-5-2000 for an offence uneer sections 302/34, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997.
3. After recording the statement of the complainant at the spot Ali Hussain, S.I. (P.W.16) took' up the investigation of this case, prepared an injury statement and an inquest report in respect of Ibrar Hussain deceased and dispatched the dead body to the mortuary for autopsy. He then inspected the place of occurrence, secured the blood-stained earth, recovered five crime-empties and one missed cartridge and also took into possession the Shalwar of the .Complainant having holes it.
4. At 10.00 a.m. On 3-5-2000 Dr. Muhammad Mansha (P.W.5) conducted postmortem examination upon the dead body of Ibrar Hussain deceased and found the following injuries on the dead body:- - "1. An enterence wound 9 x 7 c.m. On the back of left upper arms, 19 c.m. Below the top of the left shoulder, making an exit wound of 5.5 c.m. x 3 c.m. On the front of the lower part of upper arms, 4 c.m. Above the left elbow.
' An enterence wound 6 x 6 c.m. Tatooing marks were present on the right side of the abdomen 24 c.m. Above the right illiac crest and 4 c.m. Below the lower part of the chest, making an exit wound 2.5 c.m. x 1.3 c.m. On the left side of the chest, 12 c.m. From the left nipple."
' Both the injuries had been caused by fire-arm 'and were ante-mortem. The cause. Of death was opined by the Doctor to be cardiogenic shock which had been caused due to excessive haemorrhage and injury to the heart. The duration between the injuries and death was opined, to be immediate and that between the death and post-mortem examination 'was opined to be- within four hours.
5. After post-mortem examination of the dead body Ali Hussain, S.I. (P.W.16), the Investigating Officer, received the last-worn clothes of the deceased on the same day. He then prepared a rough site plan of the place of occurrence and recorded the statements of witnesses under section. 161, Cr.P.C. On the same day, i,e, 3-5-2000 the said Investigating Officer also recorded the supplementary statements of Malik Murid Ali Akthar complainant and his son namely Lal Hussain.
On 6-5-2000 he recorded the statements of two other witnesses under section 161, Cr,P.C. And on 7- 5-2000 he got a formal site plan of the place of occurrence prepared by a Draftsman. On 8-5-2000 he recorded the statement of another witness and on 10-5-2000 he received the formal site plan of the place of occurrence from the Draftsman and recorded his statement. On 17-5-2000 he arrested Ghulam Murtaza accused. The investigation of this case was then transferred to Alamdar Hussain, S . I . /S . H. 0 . (P. W.11) who arrested all the three appellants on 26-5-2000 and took into possession a motorcycle from the house of Qari Maqbool Ahmad appellant under section 550, Cr.P.C. On the same day he recovered a rifle .222 bore at the pointing out of Qari Maqbool Ahmad appellant. On the same day he also recovered a Kalashnikov alongwith 37 live bullets from the house of Ghazanfar .Abbas appellant at his pointing out. On 26-5-2000 he prepared an application for holding of a test identification parade in respect of Muhammad Tayyab alias Sajjad appellant and on 27-5-2000 he submitted that application before the learned trial Court which ordered a Magistrate to hold such a parade on 29-5-2000. On 29-5-2000 a test identification parade was held inside the District Jail, Jhang which was supervised by Mr. Muhammad Amin Awaisi, Magistrate First Class, Toba Tek Singh (P.W.8). On 1-6-2000 the said Investigating Officer obtained physical remand of Muhammad Tayyab alias Sajjad appellant and on 6-6-2000 he obtained non- bailable warrants of arrest of Abdul Razzaq, Abdul Rehman and Hafeez Ullah alias Israr accused which were handed over by him to the Moharrir for execution of the same. On 11-6-2000 he recovered a Kalashnikov, four magazines and 104 live bullets from a rented house in village Sehowal, Chak No, 330/J13. At the pointing out of Muhammad Tayyab alias Sajjad appellant. On the same day the said appellant had also allegedly led to the recovery of a motorcycle from the same house. On 13-6-2000 the said Investigating Officer procured proclamations in respect of Abdul Rehman, Abdul .Razzaq and Hafeez Ullah alias Israr accused and, the same were entrusted to Rafaqat Ali, A.S.I. For their execution. On 23-6-2000 he recorded the, statements of some witnesses and on 24-6-2000 he prepared an incomplete challan of this case. Abdul Razzaq accused was arrested by him on 15-11-2000 and on 16-11-2000 a supplementary challan was prepared in this regard.
6. After receipt of the challan the learned trial Court framed a charge with three heads under section 120-B, P.P.C., section 302/34, P.P.C. And section 7 of the Anti-Terrosim Act, 1997 against the present appellants and two of their co-accused to which they pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as seventeen witnesses in support of its case against the appellants and their co-accused. Malik Murid Ali Akthar complainant (P.W.12) and Lal Hussain (P.W.13) furnished the ocular account of the incident in question and they also stated about the motive. Tanveer Abbas (P.W.10), Riaz , Hussain (P.W.11) and Muhammad Mumtaz, S /S .14 .0. (P . W . 15) deposed about the recoveries of weapons, etc. Effected from the appellants and their co-accused. Mr. Muhammad Amin Awaisi, Magistrate First Class (P.W.8) provided the evidence regarding holding of a test identification parade. Muhammad Yaqoob (P.W.9) deposed about hatching of a conspiracy by some of the accused persons. Doctor Muhammad Mansha (P.W.5) provided the medical evidence: Ali Hussain, S.I. (P.W.16) and Alamdar Hussain, S. I. /S. H .0. (P. W.17) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In their statements recorded under section 342, Cr.P.C. The appellants and their co-accused denied and controverted all the allegations of tact levelled against them by the prosecution and professed their innocence. While responding to a question as to why he had been implicated in this case and why the prosecution witnesses had deposed against him Muhammad Tayyab alias Sajjad appellant had stated as follows: "My brother Muhammad Akram is the son-in-law of one Abdul Waahid son of Aziz Bukhsh, resident of Mohallah Islam Pura, Toba Tek Singh. The wife of said Abdul Waahid is the real sister of Ex. Chief Pattern Late Maulana Zia ur Rehman Fraooqi who was murdered some years ago by the persons of Shia Sect; Because of relationship of Abdul Waahid with aforesaid late Zia-ur-Rehman Farooqi, the police in league with the Shia Community of Toba Tek Singh and the complainant harassed the said Abdul Waahid. His house was searched and some articles of his son Abdul Basit was forcibly taken away by the police and in consequence thereof he filed a writ petition in the Hon'ble Lahore High Court, Lahore. His son and son-in-law were also arrested on filing of writ petition which was ultimately accepted. The police also got annoyed with the family of Abdul Waahid and after filing of that writ petition he was falsely involved in this case being a relative of said Abdul Waahid. Ibrar Hussain -deceased-had enmity with so many persons in Toba Tek Singh and many persons including son of Hai Sweat Shop were also arrested in this case. He was done to death not near the shop of the complainant but near the graveyard of Eidgah/Gaushala Road and his dead body was taken to the Hospital by some unknown persons. It was a blind occurrence. Later on the complainant and police due to their grudge with Abdul Waahid got me falsely involved in this case."
' The appellants and their co-accused, however, did not make any statement on oath under section 340(2), Cr.P.C. And they also did not produce any witness in their defence.
9. At the conclusion of the trial the learned trial Court found the case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeals and the connected murder reference before this Court. However, through the same judgment two of the appellants co-accused namely Ghulam Murtaza and Abdul Razzaq were acquitted by the learned trial Court.
10. We have heard the learned counsel for She parties at some length and 'have, gone thrOugh the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the eyewitnesses produced by the prosecution were in fact not present at the place of occurrence at the relevant time and they had been procured and planted at a stage subsequent to the event; the test identification parade held in this case was legally laconic, the motive set up by the prosecution had remained far from being established, the recoveries of weapons, etc. Allegedly effected from the appellants were nothing but sham and the recovery memos. Exh. P.M. And Exh. P.N. Had not been proved according to the law; the medical evidence contradicted the ocular account; the evidence brought on the record regarding hatching of a conspiracy was not worth any serious consideration; the prosecution had, thus, failed to prove its case against the appellants beyond reasonable doubt; and at any rate the case in hand did not warrant a capital sentence against Muhammad Tayyab alias Sajjad appellant. As against that the learned Assistant Advocate-General appearing for the State has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and therefore, the convictions and sentences of the appellants do not warrant any interference by this Court.
11. After hearing the learned counsel for the parties and going through the record it may straightaway he observed by us that the evidence produced by the prosecution regarding hatching of a conspiracy by Ghulam Murtaza accused and Qari Maqbool Ahmad and Ghazanfar Abbas appellants on 1-5-2000 has utterly failed to inspire our confidence. The only witness produced in that regard by the prosecution was Muhammad Yagoob (P.W.9) who had maintained before the learned trial Court that at about 8-00 p.m. On 1-5-2000 he had overheard the above mentioned appellants and their co-accused in respect of that conspiracy while sitting at on open place outside a restaurant. All that the said witness had allegedly overheard was that Qari Maqbool Ahmad appellant was telling Ghazanfar Abbas appellant and Ghulam Murtaza accused that Abdul Rehman and Abdul Razzaq co-accused "had given programme to Tayyab. And Israr" and thereafter Qari Maqbool Ahmad appellant had asked the other appellant and the co-accused to go to a village where they would be informed about any change of the programme. Muhammad Yagoob (P.W.9) had admitted before the learned trial Court that he could not understand anything from the word "programme" uttered by the said appellants and their co-accused at that time.
Sitting of some persons at a restaurant and discussing a programme while taking refreshments cannot by itself give rise to the only inference that they were referring to a programme regarding killing of a person. Muhammad Yaqoob (P.W.9) was admittedly a friend of the complainant party and he had appeared before the Investigating Officer for the first time on 6-5-2000, i,e, after three days of the occurrence to state about' his alleged overhearing of the conspiracy being hatched.
His actual visit to the relevant restaurant at the stated time and date had never been established on the record through any independent material. It, therefore, may well be that he had been procured and planted as a witness at a subsequent stage to strengthen the prosecution's case against the appellants and their co-accused. Apart from that it is rather unbelievable that a conspiracy to commit a crime of murder would be hatched or pronounced at a public place for the facility of an eves-dropper to overhear enabling him to become a witness against the conspirators at a subsequent stage. 'In this state of the evidence produced by the prosecution regarding the alleged conspiracy we are left with no option but to out rightly discard the same. As Qari Maqbool Ahmad and Gazanfar Abbas appellants had been convicted by the learned trial Court only on a charge of hatching of the said conspiracy, therefore, the convictions-and sentences of the said appellants recorded by the learned trial Court are set aside upon acceptance of Criminal Appeal No,591 of 2001 and partial acceptance of Criminal Appeal No,181-.1 of 2001 and the said appellants are acquitted of the Charge. They shall be released from the jail forthwith if not required in any other case.
12. As regards Muhammad Tayyab alias Sajjad appellant the prosecution's case against him rests upon much firmer footing and foundation. The occurrence in this case had taken place during daylight and Malik Murid Ali Akhtar complainant (P.W.12) and Lal Hussain (P.W.13) were most natural witnesses of the occurrence as the same had taken place in front of their shop and house. It is true that Malik .Murid Ali Akhtar 'complainant is the father of Ibrar Hussain deceased and Lal Hussain (P.W.13) is a brother of the said deceased but we cannot ignore that both of them had absolutely no Motives to falsely implicate this appellant in a case involving the murder of their flesh and Wed.
Bona fide of these eye-witnesses is apparent from the fact that they had not nominated this appellant or any other person in the F.I.R. Lodged in that regard soon after the occurrence and the culprits were described in the F.I.R. As unknown. It also appears that the F.I.R. In this case had been lodged before the post-mortem examination of the dead body was conducted and this is why at the time of lodging the F.I.R. The complainant did not know as to how many bullets had actually hit the deceased. The complainant and Lal Hussain (P.W.13) had had a good look at the assailants during the occurrence taking place during daylight and this is why in the test identification parade conducted within a period of less than four weeks of the occurrence both ' these eye-witnesses had correctly picked up Muhammad Tayyab alias Sajjad appellant to be the culprit who had effectively fired at the deceased during the occurrence. The statement made by Mr. Muhammad Amin Awaisi, Magistrate First Class, Toba Tek Singh (P.W.8) shows that the said eye-witnesses picked up this appellant during the test identification parade with reference to the role played by him during the incident in question. The proceedings of the test identification parade (Exh.PH to Exh.PL) show that during the test identification parade or even before holding of the same this appellant had never protested before the Magistrate claiming that he had been previously shown to the said eyewitnesses so as to facilitate them to correctly pick him up during the test identification parade. Even during the trial the said Magistrate was never seriously questioned by the defence regarding this aspect of the matter. The complainant and Lal Hussain (P.W.13) had also categorically and emphatically pointed their accusing fingers towards this appellant before the learned trial Court while making their statements as eyewitnesses. Both these witnesses had made straightforward and consistent statements before the learned trial Court while furnishing the ocular account of the incident and their statements in that regard have inspired our confidence vis-a-vis implication of this appellant in the murder in question. Some minor inconsistencies and improvements appearing in their statements have been found by us to be mostly inconsequential and not worthy of serious consideration as far as involvement of Muhammad Tayyab alias Sajjad appellant in the murder in question is concerned.
13. The statements of Muhammad Javed Akhtar, F.C. (P.W.3) and Adalat Ali, MHC (P.W.7) show that five crime-empties recovered from the place of occurrence soon after the incident had been sent to the Forensic Science Laboratory on 22-5-2000 and were received thereat on 23-5-2000. The, statements made by Alamdar Hussain, S.I./S.H.O. (P.W .17), Shamsher, F . C . (P.W.2) and Adalat Ali, MHC (P.W.7) further show that Muhammad Tayyab alias Sajjad appellant was arrested in connection with this case on 26-5-2000, a Kalashnikov was recovered from his possession on 11-6- 2000 and the same was sent to the Forensic Science Laboratory for comparison with the crime- empties on 20-6-2000 whereat the same was received on the same day i,e, 20-6-2000. This clearly establishes that the crime-empties were sent to the Forensic Science Laboratory much before the recovery of Kalashnikov from this appellant. The report submitted by the Forensic Science Laboratory (Exh.P.X.) establishes that the crime-empties recovered from the place of occurrence had matched and were found to be wedded with the Kalashnikov recovered from this appellant.
Tanveer Abbas (P. W.10) had witnessed the recovery of Kalashnikov from this appellant. The said witness was not related to the complainant party and we have found no reason for disbelieving him vis-a-vis the said recovery from this appellant. It has been argued by the learned counsel for this appellant. That the recovery, memos. Exh. P.M. And Exh. P.N. Had not been proved in accordance with the relevant law as the original recovery memos. Were not brought on the record and what is available on the record is only carbon copies of the said memos. We have, however, not found the said objection to be worth a serious consideration so as to discard the recovery evidence in this case. We have been informed that the original recovery memos. Are a part of the record of another criminal case and we have found that the carbon copies of the said recovery memos. Placed on the record of this case were attested by the Sub-Divisional Police Officer (S.D.P.O.) and the said copies also bear original stamps of Police Station City, Toba Tek Singh. The abovementioned independent witness of the recovery of weapon from this appellant as well as the Investigating Officer who effected the said recovery do not carry any serious blemish so as to discard their testimonies about the said recovery on this score alone. Apart from that no prejudice has been shown to have been caused to this appellant because of non- availability of the original memos.
On the present record. Thus, we have felt no hesitation in discarding this objection of the learned counsel for this appellant.
14. It has also been vehemently argued by the learned counsel for this appellant that the newspaper clippings brought on the record by the defence in the shape of Exh. D.N. To Exh. D.Q. Had established that this appellant had in fact been arrested by the local police prior to 23-5-2000 and, thus, sending of the crime-empties to the Forensic Science Laboratory on 22-5-2000 could well be after preparation of the same from a Kalashnikov which had already been recovered from this appellant. The learned counsel for this appellant has drawn our attention to those portions of the statements made by. Malik Murid Ali Akhtar complainant (P.W.12) and Lal Hussain (P.W.13) where they have either admitted or have not contradicted appearance of the said news items in the press. This argument of the learned counsel for the appellant has also tailed to impress us for the simple reason that even if it was established on the record that the abovementioned news items had appeared in the press still the fact remains .That the contents of the said news items had never been proved by the defence through any evidence whatsoever. The contention of the learned counsel in this regard overlooks the legal position that appearance of a news item is distinct from proof regarding contents thereof. In the absence of any evidence regarding correctness or otherwise of the contents of the said news items we are not ready to demolish the prosecution's case in this regard on the sole basis of some reporting by some undisclosed press- reporters.
15. The prosecution had set up sectarian terrorism as the motive for Ibrar Hussain deceased's killing as the deceased, in his capacity as an Advocate, was a legal advisor of the Tehrik-e-Nifaz-e- Fiqah-e-Jaffaria. The answer given by Muhammad Tayyab alias Sajjad appellant to Question No,18 put to him under section 342, Cr.P.C. Had gone a long way in, establishing his connection with Maulana Zia-ur-Rehman Farooqi, a leader of The Sipah-e-Sahaba who had been murdered. Both Malik Murid Ali Akhtar complainant (P.W.12) and Lal Hussain (P.W.13) had stated about Ibrar Hussain deceased's active involvement in the affairs of the Tehrik-eNifaz-e-Fiqah-e-Jafaria and, thus, the deceased's being a target of sectarian terrorism and Muhammad Tayyab alias Sajjad appellant's motivation for doing away with the deceased were not something which were far-fetched.
16. The medical evidence produced by the prosecution has been brought under serious critcism by the learned counsel for Muhammad Tayyab alias Sajjad appellant. In this connection it has been argued by him that in the F.I.R. It had been mentioned that the deceased had actually received many shots fired from a Kalashnikov but the medical evidence showed only two injuries on the deceased's body which were received from shots fired from a close range. It has also been pointed out that Dr. Muhammad Mansha (P.W.5) had not ruled out a possibility that the injuries sustained by the deceased had been caused by two different weapons. It has also been maintained by the learned counsel that the eye-witness had made improvements during the trial so as to bring the prosecutions case in line with the medical evidence. We have, however, found that both the injuries sustained by the deceased were of somewhat similar dimensions and apertures and the same did not necessarily show that the same had been caused by different weapons. The so-called improvements made by the eye-witneses in the context of the medical evidence during the trial did not detract from the main strength of the prosecution's case inasmuch as the fatal fire-arm injury received by the deceased at his chest found a mention in the F.I.R. Itself. It is but natural for witnesses to dive for shelter and protection the moment a fire-arm is used by an assailant and it is normally the first fire that is actually seen by the witnesses and the subsequent fires are only heard.
Causing of fire-arm injuries during an incident of murder is hardly a statistical or fiscal proposition wherein audit and account can be maintained for every injury caused. Thus, if the statements made by the eye-witnesses regarding the first fire made by this appellant were consistent with the medical evidence then any improvement made by such witnesses regarding the remaining fire made by this appellant upon the same deceased would hardly be sufficient per se to discard the statements of such eyewitnesses, especially in a case of the present nature.
17. For what has been discussed above we have found that the ocular account furnished by the prosecution in this case was not only straightforward but the same has also inspired our confidence vis-a-vis Muhammad Tayyab alias Sajjad appellant and the ocular account had received sufficient corroboration from the test identification parade, identification of this appellant before the learned trial Court, the motive and the recovery of Kalashnikov from this appellant and the said ocular account had also received sufficient support from the medical evidence. In these circumstances we have entertained no doubt in our minds that it was Muhammad Tayyab alias Sajjad appellant and none else who had caused the murder of Ibrar Hussain deceased. The normal wages of a crime of murder is death and, keeping in view the sectarian nature of terrorisim in this case, the said appellant deserves no less. Criminal Appeal No, 181-.1 of 2001 is, therefore, dismissed to the extent of Muhammad Tayyab alias Sajjad appellant and his convictions and sentences recorded by the learned trial Court are upheld and maintained with a clarification that in case of his failure to pay the amount of compensation he shall undergo simple imprisonment for six months.
18. Murder Reference No,15-T of 2001 is answered in the affirmative to the extent of Muhammad Tayyab alias Sajjad appellant and his sentences of death are confirmed.