' RUST AM ALI MALIK, J.---Through this judgment we intend to dispose of Criminal Appeal No,47-J of 2002, Criminal Appeal No,1489 of 2001 and also Murder Reference No,56-T of 2001, all of which have arisen out of the judgment dated 11-9-2001, passed by the learned Judge Special Court, Anti- Terrorism Court-IV, Lahore, by which the accused/appellants were convicted and sentenced as under:--
(i) Under sections 302/149, P.P.C. Death on 8 counts. The accused were also directed to pay an amount of Rs,1.000,000 (one million) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
(ii) Under sections 302/324. P.P.C. R.I. For 10 years and a fine of Rs,50,000 and in case of default in payment of fine, the accused/appellants were to undergo further R.I. For six months.
(iii) Under sections 337-F(ii) R.I. For 3 years as Ta'zir. The accused were also directed to pay Rs,25,000 each as Daman to Mushtaq Ahmad, the injured P.W.
(iv) Under sections 337-F(iii) R.I. For 3 years as Ta'zir and also to pay a fine of Rs,25.000 each as "Daman" to Mushtaq Ahmad, the injured P.W.
(v) Under sections 148/149. P.P.C. R.I. For 3 years and a fine of Rs,50.000 and in case of default in payment of fine to undergo further R.I, for six months.
2. The case against the accused/ appellants is based on F.I.R. No,116 of 2001 registered on 4-3-2001 under sections 302, 324, 109, 148 and 149, P.P.C. And also under sections 6/7 of Anti-Terrorism Act, 1997. The formal F.I.R. Exh.P.M/1 was registered on the basis of application Exh.P.M. Produced before the Investigating Officer by Syed Qasim Ali, P.W.15. In the F.I.R. It had been stated that on the day of occurrence i.e, 4-3-2001, around 9-45 p.m., the complainant alongwith Syed Shafqat Mushtaq and Zaigham Hussain proceeded to Bagh-i-Fida (Karbala/Graveyard of Qari Muhammad Amin) to offer Fateha on the grave of his brother and to attend a Majlis which was being held there. When he reached near the grave where Rehmat Ullah son of Ramzan, Arif son of Nazir, Ghafoor son of Hayat, Sardar Ali son of Toti, Gulzar Ali son of Musa Ali, Muhammad Akram son of Taj Din, Naveed Islam son of Sanaullah Khan and his brother Syed Kazim Hussain alongwith Mushtaq Ahmad P.W.3 were sitting in the compound of the grave of Haji Azam and were attending Majlis. In the meanwhile, riding on motorcycles,. Abdul Haq son of Sadiq and Waseem son of Nazir who were armed with Kalashnikov and pistol .30 bore respectively and also Shakeel alias Hamza, Usman, resident of Gujranwala, Nadeem resident of Lahore and one Pathan who were armed with rifles and mauser .30 bore reached there and started firing indiscriminately at the persons present there. The complainant, Shafqat Mushtaq and Zaigham Abbas, P.Ws. Took shelter behind the graves and escaped. The occurrence was witnessed by all the P.Ws. Present there. Besides Mushtaq Ahmad, P.W., who was injured, eight other persons who were present there were killed as a result of firing of the culprits. The complainant alleged that the accused aforesaid had committed the offence at the instance of Qari Hanif and Hafiz Ashfaq.
3. As mentioned above, on the basis of complaint Exh.P.M. The formal F.I.R. Was registered in the Police Station, B-Division, Sheikhupura. Both the accused/ appellants were arrested and the case was investigated. On the conclusion of investigation, challan was submitted against them before the learned Special Judge, Anti-Terrorism Court, Lahore. Both the accused were formally charged by the learned trial Court and to which they pleaded not guilty.
4. In this case, the prosecution has examined as many as 20 P.Ws. Of them P.W.19 is Fateh Ahmad, Inspector, who on 4-3-2001 was posted as S.H.O. In Police Station, B-Division, Sheikhupura. On the said day, on receiving an information that some persons had been murdered in the graveyard of Qari Mtthammad Amin in the old town of Sheikhupura, he reached the spot around 10-00 a.m. Saw the dead bodies lying there. Qasim complainant who was present there submitted the application Exh.P.M. Before him and he recorded proceedings thereon and sent the same to the Police Station for the registration of formal F.I.R. He took all the dead bodies in his possession. He also collected from there 20 empties of .222 bore (Exh.P.2/1- 20), 19 empties of Kalashnikov (Exh.P.1/1-19) and 15 empties of pistol (Exh.P.3/1-15). He took all these empties into his possession. He also collected blood-stained earth from underneath the dead bodies. He prepared injury statements and also the inquest reports. Then he sent the dead bodies to the mortuary under the escort of two constables.
He also completed other formal proceedings at the spot.
5. P.W.20 is Ghulam Qasim, D.S.P., C.I.A. To whom investigation of this case was entrusted on 5-3- 2001. On 9-3-2001 he went to the hospital and recorded the statement of Mushtaq, the injured P.W.
Under section 161, Cr.P.C. The reports of Chemical Examiner were produced before him by Muhammad Boota, A.S.-I. And which he attached with the file. He interrogated the accused and later handed over the file to the S.H.O., Police Station `B'-Division, Sheikhupura, for preparation of challan (on the basis of investigation).
6. P.W.8, is Dr. Munir Ahmad Ghori of D.H.Q. Hospital, Sheikhupura and P.W.9, Dr. Suhail Khizar had conducted post-mortem examination on the dead bodies of the deceased persons on 4-3-2001 and had found fire-arm injuries thereon which according to them were the cause of death.
7. P.W.10 is Dr. Muhammad Ashraf Javed, Senior Medical Officer, who on 4-3-2001 had medically examined Mushtaq Hussain P.W. And had found two fire-arm injuries on his person. According to him the patient was in shock and was referred to O.T. And then to Mayo Hospital, Lahore. On 18-3- 2001, as per internal findings of the Surgeon, the Mayo Hospital, Lahore, injury No,2 was declared Jaifah under section 337-C (iii), P.P.C. While injury No,1 was declared as Ghair-Jaifah-Badi'ah under section 337-F(ii). In his opinion all the injuries had been caused by fire-arm. Exh.P.U. Is the copy of the M.L.R.
8. P.W.7 is Dr. Faisal Munir, Medical Officer, Mayo Hospital, Lahore, who had subsequently medically examined Mushtaq P.W. He had found five external injuries on his person. The M.L.R. Which is in his hand is Exh.P.N. In his statement he also detailed the operation procedure and the internal injuries as well.
9. So far as the eye-witness account of the occurrence is concerned, the prosecution has examined in this case as many as 4 P.Ws. Of them P.W.15 is Qasim Ali, complainant, P.W.16 is Syed Shafqat Mushtaq Hussain, P.W.17 is Zaigham Abbas and P.W.18 is Mushtaq Ahmad who is also an injured P.W. In this case. All of them deposed on the same lines as indicated in the F.I.R.
10. P.W.4, Ghulam Farid, A.S.-I. Is recovery witness, who on 4-3-2001 was posted at Police Station, B- Division, Sheikhupura. He stated that on the same day at 10-00 a.m. After receiving an information about the incident, he reached the spot alongwith the S.H.O. And the S.H.O. In the presence of Muhammad Yousaf, S.-I. Collected the blood-stained earth from eight different places and secured the same vide different memos. Which were attested by him and by Muhammad Yousaf, S.-I. He stated that the S.H.O. Had also taken into possession 19 empties of Kalashnikov, 20 empties of rifle .222 bore and 15 empties of pistol .30 bore vide recovery memos. Exh.P.J., Exh.P.K. And Exh.P.L.
Which were attested by him and by Muhammad Yousaf, S.-I.
11. P.W.12 is Baqir Raza, Constable No,1729, who on 4-3-2001 was posted in Tiger Squad, Sheikhupura.
He stated that on the aforesaid day, he and Muhammad Yousaf, S.-I. Were present in Police Station Saddar, Sheikhupura and had joined investigation of case F.I.R. No,116 of 2001. In his presence Kalashnikov (P.4) and two magazines Exh.P.5/1-2 were recovered from Abdul Haq accused. He stated that the accused was unable to produce any licence for the same and these were taken into possession by the Investigating Officer vide memo. Exh.P.V. Which was attested by him and by Muhammad Yousaf, P.W. He stated that on the same day a pistol .30 bore (P.6) and an M.P.5 rifle which is Exh.P.7 was recovered from Muhammad Waseem accused who could not produce any licence for the pistol recovered from him. The rifle M.P.5 was an official rifle owned by the Government. The rifle and the pistol were taken into possession by the Investigating Officer vide memo. Exh.P.W. And that he and Muhammad Yousaf Constable signed the memo. As witnesses of recovery.
12. P.W.14, Ghulam Abbas stated that on 4-3-2001 he was to make a telephonic call and hence he visited Viki Public Call Office, Khaki Jan Road, Sheikhupura where Hafiz Muhammad Ashfaq and Qari Muhammad Hanif were talking with each other and were saying to the people sitting with them that as Haq Nawaz Shaheed had been hanged under the pressure of Shia Community and as the said Shaheed was their spiritual brother, they will take revenge from the Shia Community which will be smashed through all means.
13. On 1-9-2001 the Prosecutor gave up the remaining P. Ws. After tendering in evidence the reports of Chemical Examiner Exh.P.H.H., Exh.P.K.K., Exh. P . L. L . , Exh. P.M . M. , Exh.P.N . N. , Exh.P.0.0., Exh.P.P. And also the reports of Serologists Exh.P.Q.Q., Exh.P.R.R., Exh.P.S. S. , Exh.P. T . T . Exh.P. U .U. , Exh.P.V.V., Exh.P.W.W. And report of Forensic Science Laboratory Exh.P.Y.Y. And closed the case for the prosecution.
14. On the conclusion of the prosecution evidence, the statements of the accused/appellants were recorded under section 342, Cr.P.C. And wherein they denied all the incriminating circumstances.
The accused did not produce any evidence in defence. However, both of them made statements on oath under section 340(2), 'Cr.P.C.
15. In his statement under section 340 (2), Cr.P.C., Abdul Haq accused stated that he was prepared to state on the Holy Quran that he was innocent in this case and had been falsely implicated and that he had no communication with Sipah-e-Sahaba in any manner whatsoever. He was arrested from his house by C.I.A., Sheikhupura seven days prior to the occurrence in connection with the murder of Muhammad Ashraf Marth, S.S.P., Gujranwala and that Senior Police Officers tortured him and forced him to confess the murder of Muhammad Ashraf Marth, On his refusal they involved him in this false case. He deposed that he was not arrested from Chapa Minara as alleged by the police and that nothing was recovered from him. He stated that the recovery was bogus and planted and that he had no enmity with the Shias whom he treats as good, sincere and true Muslims like Sunnis. In his statement under section 340(2), Cr.P.C. Waseem accused deposed that he states on Holy Quran that he is a Hafiz-i-Qur'an and that his name is only Hafiz Muhammad Nasim. He deposed that he had never been called by any other name such as Waseem nor he had ever used the name of Waseem as a part of his name. He deposed that the allegation against him in this case is totally incorrect and that he is a pure, true and simple Muslim and had no connection whatsoever with Sipah-e-Sahaba or any other political or religious group and that he treats Shias as Muslims and in some cases better than himself.
16. After the conclusion of trial both the accused were convicted and sentenced by the learned trial Court as aforesaid. Both the accused filed a joint jail appeal through the Superintendent, Central Jail, Lahore and which is Criminal Appeal No,47-J of 2002. An appeal (Criminal Appeal No,1489 of 2001) was also field on behalf of the State for awarding separate sentence of death on the charge under section 7 of ATA, 1997 on eight counts to the accused.
' The learned trial Court has also sent a reference (Murder Reference No,56-T of 2001) for confirmation of sentence of death awarded to both the accused/appellants in this case. All these matters are being disposed of through this judgment.
17. Arguments have been heard and record perused.
18. The learned counsel for the appellants has argued that admittedly the complaint was in the handwriting of Dilshad Nasir, Advocate who is the head of Shia Community at Sheikhupura and the complainant appears to have signed it merely. He has argued that an effort was made to give this incident a colour of sectarianism although in this incident as many as 3 Sunni Muslims had also been killed. He has argued that when there was tension at a high pitch between the two 'rival sects, people belonging to one sect normally do not attend the Majlis or meeting organized by the other sect. He has argued that the complaint, which was written by Dilshad Nasir, Advocate, could not be treated as a piece of evidence. At all. Story about the occurrence had been concocted on the advice of Dilshad Nasir, Advocate. He has argued that Riaz Ahmad, S.-I. Who had effected the recovery of weapon of offence from the accused had not been examined as a P.W. And had been given up and as such the recoveries of weapons of offence in this case which are not proved at all, cannot be considered of any consequence. He has argued that neither P.W.19 nor P.W.20 have claimed that they had arrested the accused in this case and as such an important link in this case is missing. He has argued that the names of the accused were incorporated in the F.I.R. After due deliberations and consultations. The learned counsel for the appellants has argued that the complainant being a retired Patwari could himself draft/ prepare complaint but he had not done so and the aforesaid fact also creates doubt in the matter. He has argued that although Mushtaq Ahmad P.W. Who was also injured during this occurrence is a Sunni Muslim and is also a brother of one of the deceased persons, yet he is a very poor man and runs his business on a Rehri and hence he could not withstand the pressure which was there to support the prosecution story as concocted in connivance with the police. He has argued that the statements of the eye-witnesses i.e, P.W.15, P.W.16, P.W.17 and P.W.18 do not inspire confidence and are not sufficient to connect any of the accused with the offence. He has argued that both the accused in their statements under section 342, Cr.P.C. Have clearly denied all the incriminating circumstances. He has further argued that the name of Muhammad Waseem accused is actually Hafiz Nasim and he was never known as Waseem alias Nasim. He has argued that both the accused/appellants in this case have also made statements on oath under section 340(2), Cr.P.C. And both of them have denied on oath that they were having any concern with the occurrence or with any sectarian organization. He has argued that the prosecution has not produced any concrete evidence in this case to prove the charges against the accused persons and that everything is to be seen in juxtaposition and it is only then that one can draw true and correct conclusion from the facts of the case. He has argued that as strike had been observed in the city on account of this occurrence and as the Army had also arrived, therefore, in order to appease the public at large, the police had falsely involved the accused in this case as culprits although they had proved even during the course of investigation that they had nothing to do with sectarianism and were not involved in this occurrence. He has argued that the prosecution evidence in this case is replete with inconsistencies and contradictions and as such does not inspire confidence. He has asserted that the conviction recorded by, the learned trial Court against the accused/appellants as well as the sentence awarded to them cannot be upheld and is liable to be set aside.
19. From the other side, the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the learned trial Court and has argued that the same is based on sound reasoning. The learned counsel for the State has argued that in this case as many as four eye-witnesses have been examined, one of whom i.e, Mushtaq Ahmad, P.W.18 is an injured P.W. And whose presence at the time of occurrence cannot be denied. He has argued that none of the four eyewitnesses including P.W.18, Mushtaq Ahmad had no enmity or towards the accused/appellants and it cannot be believed that they will become tools in the hands of police to implicate innocent persons in a case of this nature. They have argued that the ocular account in this case is fully corroborated by the medical evidence, the evidence regarding the recovery of weapons of offence and which is further corroborated by the report of Forensic Science Laboratory, Exh.P.Y.Y. The learned counsel for the State has argued that the prosecution has proved its case against the accused/appellants to the hilt and hence they have been rightly convicted and sentenced by the learned trial Court. The learned counsel for the State has also argued that the charge under section 7 of Anti-Terrorism Act, 1997 was also proved against the accused/appellants for creating terrorism with their brutal and barbaric act and as such both the accused/appellants are liable to be convicted on the charge under section 7 of Anti-Terrorism Act, 1997 separately as well and hence both of them be also awarded capital punishment on eight counts on the charge under section 7 of Anti-Terrorism Act, 1997. He has submitted that the State has also filed an appeal (Criminal Appeal No,1489 of 2001) in this respect and which may be accepted while the appeal filed by the accused be dismissed.
20. We have carefully considered the arguments advanced from both sides. The mere fact that the complaint Exh.P.M. Was drafted by Dilshad Nasir, Advocate, on the dictation of Syed Qasim Ali, complainant, cannot render the same invalid. The complainant has himself stated that the complaint Exh.P.M. Had been recorded on his dictation by Dilshad Nasir, Advocate. The mere fact that Dilshad Nasir aforesaid was head of Shia Community at Sheikhpura does not mean that he had attempted to give a twist to the facts of this occurrence, so as to give it the colour of sectarianism. The arrival of Dilshad Nasir, Advocate, at the place of occurrence soon after the occurrence cannot be considered as something other than an expression of solidarity and sympathy with the community/sect to which he belonged. The F.I.R. Cannot be thrown away merely on the ground that it had been recorded on the basis of a complaint which was written by Dilshad Nasir, Advocate, who appears to be the head of Shia Community at Sheikhupura.
21. Both the accused/appellants are clearly named in the F.I.R., which had been recorded promptly.
The occurrence had taken place at 9-45 a.m. While F.I.R had been recorded at 10-15 a.m. And which is sufficient to exclude the possibility of consultation, premeditation and even of false implication.
The presence of the complainant to offer Fateha on the grave of his brother in the graveyard and also to attend the Majlis which was taking place there was quite natural. The fact that three out of the eight deceased persons were Sunnis does not mean that the act in question was not an act of sectarian terrorism because the culprits had obviously no means to ascertain as to whether all the persons present there in the Majlis were Shias or whether some of them were also Sunnis.
22. The eye-witness account in this case as mentioned above is furnished by as many as four persons and who are natural witnesses of the occurrence. The presence of P.W.15, Qasim Ali complainant as well as of other eye-witnesses i.e, P.W. 16, Syed Shafqat Mushtaq Hussain, P.W.17, Zaigham Abbas and P.W.18, Mushtaq Ahmad, who was himself an injured P.W., is proved on record.
P.W.18 Mushtaq Ahmad is himself Sunni by faith and also an injured P.W. Hence his testimony in this case is very crucial because it cannot be believed that he will make a false statement to let off the culprits who had attempted to kill him and had seriously injured him in the process. He is stated to be a brother of one of the deceased persons namely Rehmat and it cannot be believed that he will make a false statement against the persons with whom he had no previous enmity. In his statement he has deposed that the house of Waseem accused is at a distance of about 1 mile (from his house) and he is known to him for the last 10 years. Since this witness had become unconscious after getting injured and had gained consciousness 3/4 days later, there is no force in the argument that as his statement had been recorded 3/4 days after the occurrence by the Investigating Officer, therefore, the same does not inspire confidence.
23. The statements of the eye-witnesses in this case are further corroborated by the statements of the Medical Officers i.e, P.W.7, P.W.8, P.W.9 and P.W.10 who had either medically examined Mushtaq Ahmad, the injured P.W. or had conducted post-mortem examination on the dead bodies of the deceased. From the statement of P.W.19 i.e, Fateh Ahmad, Inspector, it appears that after visiting the place of occurrence he had secured 20 empties of .222 bore rifle, 19 empties of Kalashnikov and 15 empties of .30 bore pistol (P.3/1-15). The said empties were later sent to the Forensic Science Laboratory for comparison with the weapons of offence allegedly recovered from the accused/ appellants and the report of Forensic Science Laboratory, Exh.P.Y.Y. To the extent of the weapons of offence allegedly recovered from the accused/appellants is positive.
24. The defence version of the accused is that they had been falsely implicated in this case and that they had no concern with Sipah-e-Sahaba and they considered Shias as good Muslims and that they had been involved in this case in order to appease the people as there was tension in the city on account of this occurrence and the Army had also arrived. It is not understandable as to why the accused/appellants would be involved in a false case of this nature even if there was tension/strike in the city. It also cannot be believed that the police high ups had falsely involved the accused in this case because of their refusal to confess the murder of Muhammad Ashraf Marth.
The contention of Waseem accused that he is not known as Waseem and his name is only Hafiz Naseem will not make any difference as it is he who was arrested by the police, recovery was effected from him and during the trial all of the- eye-witnesses had deposed against him in unambiguous terms.
25. There is overwhelming evidence on record that the accused/appellants equipped with fire- arms had indulged in indiscriminate firing on the people present in the Majlis on the day of occurrence and as a result of which as many as eight persons namely (1) Muhammad Ikram, (2)
Arif, (3) Gulzar Ali, (4) Naveed Islam, (5) Kazim Hussain, (6) Ghafoor Hussain, (7) Sardar Ali and (8)
Rehmat Ullah had been killed and had also attempted to commit Oatl-i-Amd of Mushtaq Hussain, P.W. The conduct of the accused was extremely callous, wanton and brutal. They showered bullets on innocent persons who were merely participating in a Majlis and without their being any provocation or fault on their part. The prosecution has successfully established the guilt of the accused on all the charges. As such they had been rightly convicted and sentenced by the learned trial Court.
26. So far as the question of awarding separate sentence of death to the accused/appellants for the offence under section 7 of Anti-Terrorism Act, 1997, is concerned, they have been awarded sentence of death under relevant provision of law i.e, sections 302/149, P.P.C. On eight counts, therefore, awarding them sentence of death separately for the offence under section 7 of Anti- Terrorism Act, 1997 (also on eight counts) would not be justified.
27. In view of what has been discussed above, the conviction of the accused/appellants by the learned trial Court on all the charges including sentence of death on eight counts, is upheld and the appeal filed by the accused/appellants (Criminal Appeal No,56-T of 2001) is dismissed.
However, instead of paying rupees one million collectively as compensation to the legal heirs of the deceased persons, each of the accused/appellant shall pay rupees one lac as compensation under section 544-A, Cr.P.C. To the legal heirs of each deceased person and in case of default, the defaulting accused/appellant will undergo S.I. For six months.
28. For the reasons mentioned in this judgment, the appeal filed by the State (Criminal Appeal No,1489 of 2001) is, also dismissed. The sentence of death awarded to both the accused/appellants on eight counts by the learned trial Court is confirmed.
' Murder Reference (No,56-T of 2001) is answered in the affirmative.