ASIF SAEED KHAN KHOSA, J.---Vide judgment dated 20-9-2001 handed down by the learned Judge, Anti-Terrorism Court, Faisalabad, Camp at District Jail, Faisalabad Muhammad Sarwar, Shaukat alias Hukki alias Mauzar, Khalil, Mukhtar and Muhammad Saleem alias Cheeman appellants were convicted for offences under section 148, P.P.C., four counts of sections 302(b)1149, P.P.C., nine counts of sections 324/149, P.P.C., four counts of section - 7 of the Anti-Terrorism Act, 1997 read with section 302(b), P.P.C., and different counts of section 7 of the Anti-Terrorism Act, 1997 read with section 324, P.P.C., and were sentenced to death, imprisonment of life and other sentences of imprisonment on different counts apart from fines and compensation as detailed at pages 51 to 56 of the judgment passed by the learned trial Court. The details of those sentences are available at pages 207 to 212 of this Court's paper-book and for the purpose of brevity the same may not be reproduced here. All the sentences of imprisonment passed against the appellants were ordered to run concurrently and the benefit under section 382-B, Cr.P.C., was extended to the appellants.
Through the same judgment six co-accused of the appellants were acquitted by the learned trial Court. Two of the appellants' co-accused had died before commencement of the trial and one co- accused had been declared a Proclaimed Offender and his case was separated from that of the other accused persons. The appellants have challenged their convictions and sentences before this Court through this appeal which has been heard by us alongwith Murder Reference No,43-T of 2001 seeking confirmation of the sentences of death passed by the learned trial Court against different appellants. We propose to decide this appeal as well as the connected Murder Reference together through the present judgment.
2. The necessary facts giving rise to the present appeal are that during the first week of the month of Muharam-ul-Haram in the year 1991 a lot of tension had generated in the city of Jhang on account of sectarian differences and clashes between the Shia and Sunni Cummunity as a result of which a'curfew had to be imposed for major portion of everyday during that period but the curfew were relaxed for the purposes of allowing the Shia Community to attend its religious meetings/Majlis. In the afternoon of 19-7-1991 one such Majlis was held at the Dera of Nawab Shamshad Khan in Mohallah Dadu Shah, Jhang and upon Culmination of that Majlis the members of the local Shia Community were dispersing when all of a sudden the present five appellants and three of their co-accused namely Saleem Fauji, Muhammad Ashraf alias Machhar and Abu Bakr emerged in the street adjoining the Lal Masjid and opened fire with their respective Kalashnikovs at the members of the Shia Community and others available in that street resulting in the death of four persons and sustaining of injuries by nine others, including two women and one child. The said incident was reported to the police by Syed Zameer-ul-Hassan complainant (P.W.6) and F.I.R.
No,301 was registered in that regard at Police Station City, Jhang on the same day at 6-00 p.m. For offences under sections 148/302/324/149/109, P.P.C. It was mentioned in the said F.I.R. That the said carnage had taken place in furtherance of sectarian motives and some accused persons were also mentioned in the F.I.R., as the abettors and conspirators.
3. The injured persons in this case were' medically examined, the dead bodies were subjected to post-mortem examination by different doctors and this 'case was investigated by different police officers at .Different stages during which the appellants and some of their co-accused were arrested. Saleem Fauji and Muhammad Ashraf alias Machhar accused were subsequently murdered and Abu Bakr accused became a fugitive. Finally a challan was submitted before the learned trial Court and the appellants and their six co-accused were put to trial.
4. At the commencement of the trial the learned trial Court framed a charge against the appellants and their co-accused to which they pleaded not guilty and claimed a trial. During the trial-the prosecution produced as many as twenty-eight witnesses in support of its case against the appellants and their co-accused. Syed Zameer-ul-Hassan Shah (P.W.6), Syed Zargham Haider (P.W.7), Muhammad Iqbal (P.W.8), Tassawar Hussain (P.W.9), Bashir Hussain (P.W.10), Asif Iqbal (P.W.11) and Ghulam Abbas (P.W.19) furnished the ocular account of the incident in question. All the said eyewitnesses except the complainant had sustained injuries during the occurrence in question. Two other injured eye-witnesses namely Parveen Dilshad (P.W.21) and Afzal- Batool (P.W.22) had narrated the details of the said incident but had maintained that they had not been able to identify the culprits as they were in their veils at the relevant time being Parda-observing ladies. Some of the eye-witnesses produced by the prosecution had also deposed about the sectarian motive on the part of the appellants and their co-accused. Ghulam Shabbir (P.W.14) and Dilmeer Hussain (P.W.23) provided the Wajtakkar evidence and five different doctors provided the medical evidence. Likewise six different police officers deposed before the learned trial Court 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. In their statements recorded under section 342, Cr.P.C. The appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And they also did not produce any witness in their defence. At the conclusion of the trial the learned trial Court acquitted the appellants' six co-accused but, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, the appellants were convicted and sentenced as mentioned above. Hence, the present appeal and the connected Murder Reference before this Court.
5. We have heard the learned counsel for the parties and have gone throats the record of this case with their assistance. It has. Been argued by tile learned counsel for the appellants that the F.I.R., in this case had been lodged after deliberations; the complainant was not actually present at ,the scene of the crime at the relevant time and he had been procured and planted in this case at a later stage; the injured eye-witnesses produced by the prosecution had no occasion to identify the appellants; the motive alleged in this case had not been established; the medical evidence contradicted the ocular account; no weapon was recovered from the appellants during the investigation of this case; the prosecution's case regarding hatching of a conspiracy and providing of abetment had been discarded by the learned trial Court; and, therefore, the prosecution had failed to prove its case against the appellants beyond reasonable doubt. It has been emphasized by the learned counsel for the appellants that the eye-witnesses produced by the prosecution had failed to receive any independent corroboration and, thus, it is unsafe to uphold the appellants' convictions and sentences. As against that the learned counsel 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 recorded by the learned trial Court do not warrant any interference by this Court.
6. After hearing the learned counsel for the parties and going through the record we have felt that the backdrop in which the bloodbath in this case had taken place is of critical importance. It is admitted at all hands that during the days of the present occurrence the city of Jhang was engulfed in high tension emanating from sectarian clashes between the local Shia and Sunni Communities and the situation had deteriorated so much that a curfew had been clamped down in the city so as to keep the warring factions apart. The gruesome occurrence in this case had taken place during a lull between the curfew hours and at a time when the members of the Shia Community were dispersing after attending a Majlis on the 6th day of Muharam-ul-Haram. It may be true that nothing is available on the present record showingany personal or individual enmity between the appellants and their victims but at the same time it is equally true that all the prosecution witnesses, including the injured eye-witnesses, belong to the Shia sect and all the appellants are Sunni by faith. In their statements recorded under section 342, Cr.P.0 the appellants had themselves asserted a background of 'enmity' between the appellants and the prosecution witnesses on the basis of sectarian differences. Even the suggestions put to different eye-witnesses by the defence mincingly referred to such sectarian enmity. The Lalkara attributed by various eye- witnesses to the appellants before launching the A assault also had the overtones of sectarianism and the same unmistakably pointed towards that motivation on the part of the appellants for perpetrating the alleged offences. In this context it cannot be lost sight of that in a case of terrorism it is not vengeance against an individual but retribution and requital against a community or sect which is the real motivation and this factor can be found writ large on the entire record of the present case, For all these reasons we have entertained no doubt that the motive for commission of the offences in this case was nothing but sectarianism and the same stood conclusively established in this case.
7. The next factor to be considered by us is to see whether it was the appellants or somebody else who had committed the alleged offences. In this context we have observed that the occurrence in this case had taken place in the heart of Jhang City and the venue was a busy marketplace with its hustle and bustle shortly before beginning of the curfew hours. The occurrence had taken place during broad daylight and the F.I.R., in that regard had been lodged with sufficient promptitude wherein the names of the present appellants had clearly been mentioned with all the necessary details as the perpetrators of the alleged offences. Four persons had died during the said incident and nine others had sustained injuries out of which five injured victims had specifically deposed about the appellants' participation in that gory, grisly and blood-soaked incident. Even if the submission of the learned counsel for the appellants regarding absence of the complainant from the scene of the crime at the relevant time is accepted for the sake of argument still there is no reason why the above mentioned five injured witnesses may not be believed regarding the appellants' culpability. The said witnesses had the stamp of injuries on their persons and their presence at the spot could not be disputed with any degree of seriousness. These injured witnesses .Ad made consistent statements before the learned trial Court and they had absolutely no motive to falsely implicate the appellants in a case of such a grave nature. The straightforward and forthright statements made by the said injured eye-witnesses had not only impressed the learned trial Court but the same have also inspired our confidence.
8. The Wajtakkar evidence provided by Ghulam Shabbir (P.W.14) and Dilmeer Hussain (P.W.23) had also provided corroboration to the ocular account and the statements of those witnesses regarding presence of the appellants at and around the place of occurrence immediately after the incident had gone a long way in establishing participation of the appellants in the said occurrence.
The medical evidence had also provided sufficient support to the ocular account in respect of all the reliant details and with regard to all the material particulars.
9. For what has been discussed above we have felt no hesitation in concluding that the prosecution had indeed succeeded in proving its case against the appellants beyond reasonable doubt. Criminal Appeal No,1480 of 2001 filed by the appellants before this Court is, therefore, dismissed and the convictions and sentences of the appellants recorded by the learned trial Court are hereby upheld and maintained subject to the modification that the convictions and sentences of the appellants recorded by the learned, trial Court under sections 324/149, P.P.C., and section 7 of the Anti-Terrorism Act, 1997 read with section 324, P.P.C., in respect of the injured victim namely Ghulam Shabbir are hereby set aside as the said injured victim had not entered the witness-box, the sentence of death passed by the learned trial Court against Mukhtar appellant for an offence under section 7 of the Anti-Terrorism Act, 1997 read with section 302(b), P.P.C., is reduced to imprisonment for life as the sentence of death against that appellant on that count had apparently been erroneously and mistakenly recorded by the learned trial Court keeping in view the tenor of the sentences passed by it against the other appellants on that count and with a direction that in case of default of payment of compensation ordered by the learned trial Court to be paid by the appellants on various counts they shall undergo simple imprisonment for six months each on each of such counts. With these modifications in the sentences of the appellants their appeal is dismissed.
10. Murder Reference No,43-T of 2001 is answered in the affirmative to the extent of Muhammad Sarwar, Shaukat alias Hukki alias Muzar and Khalil appellants but the same is answered in the negative to the extent of Mukhtar appellant.
11. The sentences of death passed by the learned trial Court against Muhammad Sarwar, Shaukat alias Hukki alias Mauzar and Khalil appellants ate confirmed.
12. The sentence of death passed by the learned trial Court against Mukhtar appellant is not confirmed.