Ghulam Raza Naqvi etc. VS State

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

Criminal Appeal No. 1112 of 2006 (Ghulam Raza Naqvi etc. Vs. The State etc.) Criminal Appeal No. 492 of 2007 (State through PGP . V. Sarfraz alias Hassan shah etc.)

(C.S.R NO. 37-T of 2006) Date of hearing: 21.10.2014 Appellants by: Sardar Khurram Latif Khosa, Mr. Muhammad Asghar Gill and Malik Ali Imran Advocates

Complainant by: Mr. Munir Ahmed Bhatti, Advocate

State by: Mr. Saeed Ahmed Shaikh, APG Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 1112 of 2006 filed by Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali (against their convictions), Criminal appeal No. 492 of 2007 filed by state (against the acquittal of respondents No. 1 to 14), and C.S.R No.37-T of 2006 sent by the learned trial court i.e. Special Judge Anti-Terrorism Court-III, Lahore for confirmation of the death sentence of appellants Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali or otherwise as all the three matters have arisen out of the same judgment dated 24.06.2006 passed by learned Special Judge, Anti-Terrorism Court-III, Lahore according to which the present appellants/convicts were convicted and sentenced as under:- “(i) Ghulam Raza Naqvi was convicted under sections 148/149 PPC and sentenced to two years R.I along with fine Rs.5000/- and in default thereof further undergo SI for one month. He was also convicted under section 7 (a) ATA 1997 read with section 302/149 PPC and sentenced to death for committing the murder of Haji Imtiaz deceased along with compensation Rs.1,00,000/- payable to the legal heirs of the deceased and in default thereof further undergo six months S.I.

He was also convicted under section 7(a) ATA 1997 read with section 302/149 PPC and sentenced to death for committing the murder of Shahid Javed deceased along with compensation Rs.1,00,000/- payable to the legal

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heirs of the deceased Shahid Javed and in default thereof further undergo Six months S.I. He was also convicted under section 7 (b) ATA 1997 read with section 324/149 PPC for making an attempt on the life of Azam Tariq and his companions and is sentenced to ten years R.I along-with fine Rs.50,000/- and in default thereof further undergo six months S.I. He was also convicted under section 7 (d) ATA 1997 for destroying the vehicle of the complainant and sentenced to ten years R.I along with fine Rs.50,000/- and in default thereof further undergo six months S.I. He was also convicted under section 4/5 of the Explosive Substances Act 1908 and sentenced to ten years R.I.

(ii)Shabar Shah alias Muhammad Ali alias Ahmed Ali was convicted under 148/149 PPC and sentenced to two years R.I along with fine Rs.5000/- and in default thereof further undergo SI for one month.

He was also convicted under section 7 (a) ATA 1997 read with section 302/149 PPC and sentenced to death for committing the murder of Haji Imtiaz deceased along with compensation Rs.1,00,000/- payable to the legal heirs of Haji Imtiaz deceased and in default thereof further undergo six months S.I.

He was also convicted under section 7(a) ATA 1997 read with section 302/149 PPC and sentenced to death for committing the murder of Shahid Javed deceased along with compensation Rs.1,00,000/- payable to the legal heirs of the deceased and in default thereof further undergo Six months S.I.

He was also convicted under section 7 (b) ATA 1997 read with section 324/149 PPC for making an attempt on the life of Azam Tariq and his companions and is sentenced to ten years R.I along-with fine Rs.50,000/- and in default thereof further undergo six months S.I.

Benefit of section 382-B Cr.P.C was also extended to both the appellants with direction that all the sentences shall run concurrently whereas, their co-accused namely Sarfraz alias Hassan Shah alias Motto, Munawar Abbas alias Billa, Mushtaq Hussain, Azhar Hussain, Tasawwar Abbas, Kishwar Abbad, Hussain Raza, Ghulam Abbas, Asghar Ali, Khurshid Ali, Fazal Abbas, Irfan Haider, Inayat Hussain and Muhammad Iqbal were acquitted by the learned trial court in case FIR No. 136 dated 22.8.1994 under sections 302, 324, 148/149, 440, 109, 212, 216 PPC read with section 7 ATA 1997 police station Shahpur Saddar District Sargodha.

2.The facts of the case have been stated by Muhammad Sarfraz/PW-8 in his statement before the

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learned trial court and same statement is hereby reproduced for narration of the facts: - “On 22.08.1994, I was travelling with Maulana Azam Tariq as his security Guard. Maulana Ghulam Raza Naqvi, Shabbar Abbas, Akmal, Ghulamma Muhammad, Hassan Shah, Anwar Haider and Billa Sialkotia were after us. We had crossed Sahiwal(Distt. Sargodha) and we were travelling on single road that we suspected that we are being followed by a suspicious Dala. We accordingly, brought it to the notice of Maulana Azam Tariq. The registration Number of said dala was 6989, it was a Lahore registered vehicle. When we were crossing a narrow bridge with slow speed that the said Dala almost took over us. We jumped down of our vehicle and we were fired upon. One of our companion Shahid could not jump out of the vehicle and because of firing of the said accused persons he got injured. In our defence we also replied the firing. This encounter took place for some time after which the accused persons retreated and fled away. Our companion Haji Imtiaz a police constable also got injured in this encounter. Injured Shahid died there at the spot while the other injured Imtiaz was taken to hospital by our companion Rashid. My statement was recorded on 25.10.1994. I identified dead body of deceased Shahid at the time of his postmortem examination. On 25.10.1994 my statement was again recorded through which I corrected the name of Hassan Shah as Sarfraz since it later came to my knowledge that his real name was Sarfraz”.

3.After registration of the case, investigation started and on completion of the investigation report under section 173 Cr.P.C was submitted in the trial court.

4.Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the Multiple charge on 06.05.2005 against the present appellants/convicts Ghulam Raza Naqvi, Shabar Shah alias Muhammad Ali alias Ahmad Ali and their co-accused (since acquitted) stated above under sections 302/324/337/148/149/212 PPC, under sections 7 (a), (b), (c) and (d) of ATA 1997 and under sections 4/5 Explosive Substance Act 1908 to which

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they pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Muhammad Afzal PW-1, Muhammad Sabtain Constable PW-2, Aman Ullah Constable PW-3, Muhammad Ilyas Patwari PW-4, Abdul Ghafar (R) Constable PW-5, Ijaz Ahmad Dispenser PW- 6, Dr. Zulifqar Ali Ch. PW-7, Muhammad Sarfraz PW-8, Abdul Rashid Constable PW-9, Muhammad Yar Gondal DSP PW-10, Dr. Muhammad Shabbir PW-11, Masood Aziz PW-12, Gul Sher Ahmad SI PW-13, Muhammad Yousaf SI PW-14, Mushtaq Ali PW-15, Agha Asghar Ali PW-16, Mansab Ali Inspector PW-17, Abdur Rauf Dogar SP (R) PW-18, Abdus Sattar Inspector (R) PW-19 whereas PWs namely Abdur Rehman, Farooq, Ehsan- ul-Haq were not produced by the prosecution due to their non-availability whereas PWs namely Umer Rashid ASI, Azhar Saqib ASI, Shahid Pervez Inspector, Muhammad Hassan ASI and Abdur Rashid Inspector were given up by the prosecution being unnecessary and tendered in complaint Ex.PA, FIR Ex.PA/1, recovery memo of blood stained clothes Ex.PB, copy of site plan Ex.PC, Memo of personal search Ex.PF, recovery memo of rifle 7 MM Ex.PG, recovery memo of Hi-Lux No. 8024/LHO Ex.PL, recovery memo of Toyota Hi-Lux No. 6979/LOJ Ex.PM, recovery memo of Cassettee and Permit etc Ex.PQ, report of Chemical Examiner Ex.PR, report of Serologist Ex.PS and closed the prosecution evidence.

6.Medical evidence was furnished by Dr. Zulifqar Ali Chaudhary, Plastic Surgery Deptt. Mayo Hospital, Lahore PW-7 who stated that on 22.08.1994 at 11:00 p.m he conducted postmortem examination on the dead body of Haji Imtiaz deceased and observed as under:-

“EXTERNAL EXAMINATION.

This was a body of male of age about 35, 36 Years of robust built. Face was looking pale and mutilated. The mouth was open but eyes were close. Rigor mortis was present in the upper extremist and just started in the lower extremis. The Postmortem staining was present at the back. The body was claded in white vest

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and shalwar alongwith parna (white printed KT sheet). Corresponding cuts were present on Shalwar and vest.

INJURIES

1.Multiple wounds in an area of 14x12 cm with swelling 18x14 cm on the left side of head 3 cm above left ear with inverted contused charred margins.

2.A lacerated wound 1 cm x half cm on the left side of head 5 cm above left ear with inverted charred margins. (On DISSECTION).

There was a heamotoma underneath these injuries measuring 18x14 cm below scalp. On opening the scalp 3 holes were present on the inner side of left side scalp corresponding to the outer side wall. Membrains beneath were ruptured. A big hoematoma was present between the brain and the meninges. Subarchnoid and intraceretral haemohrage was also seen.

3.A lacerated wound 13⁄4 x 1/2 cm on the left side of forehead with contused charred margins 3 cm above left elbow. Hematoma of 4x5 cm beneath it was seen. Bone was intact.

4.Echymosis of left eye with swelling 6x4 cm of upper eye led.

5.Bleeding from nose, throat and left ear were present.

6.Multiple abrasion in an area of 9x2 cm on left eyebrow and left upper cheek.

7.Multiple lacerated wound in an area of 12x7 cm ranging from 1/6 cm x 1⁄2 cm on left cheek with inverted, contused and charred margins.

8.Multiple contused lacerations in an area of 4x3 cm cartilage exposed on the left ala of nose.

9.A lacerated wound 4x1/2cm oral cavity deep on left half of upper lip close to philprum.

10.A lacerated wound 8x3 cm muscle deep with loss of left arm of lower lip, teeth visible on the lower part of left side of mouth.

11.A lacerated wound 8x3 cm muscle deep on the left ramus of mandible.

12.Multiple lacerated wounds in an area of 15x12 cm on the top of left shoulder and upper part of chest ranging from 1/8 cm x 1⁄4 cm muscle deep with inverted contused and charred margins.

13.Multiple lacerated wound 1/6 cm x 1/2cm in an area of 25x18 cm on the

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back of upper part of left chest with inverted charred margins.

14.Multiple lacerated wound in an area of 30x25 cm ranging frtom 1/8 cm to 1/2cm on the lateral aspect of left side chest and abdomen.

15.Multiple lacerated wounds ranging from 1⁄4 to 1/2cm muscle deep in an area of 20x15 cm on the back of left side of abdomen.

ON DISSECTION

These injuries were muscle deep. Pleura and peritoneum remained intact.

16.A lacerated wound of entry 7x5 cm muscle deep on the lateral aspect of upper 1/3 of left chest just below axilla causing damage to blood vessels and tissues. A foreign metallic piece was recovered from the bone.

17.A lacerated wound of entry 8x5 cm muscle deep on the posterior and lateral aspect of left upper arm 2 cm above injury No.16 causing damage to blood vessels and tissues. A foreign metallic piece was recovered.

18.Multiple recreated wound ranging from 1/6x1/2 cm muscle deep in an area of 30x20 cm on the outer aspect of left upper arm with irregular and charred margins.

19.Multiple lacerated wounds ranging 1/8 cm x 1/4cm muscle deep in an area of 20 to 15 cm on the outer part of upper and middle 1/3 of left forearm with inverted charred margins.

20.A lacerated wound with irregular charred margins 1cm x 1cm muscle deep on the lateral aspect of upper 1/3 of left thigh 14 cm below and lateral to anterior superior iliac supine.

21.Multiple lacerated wounds ranging from 1/4x1/2cm muscle deep in an area of 24x15cm on the middle and lower 1/3 of left thigh.

22.A lacerated wound 31⁄2 x 11⁄2 cm muscle deep on the front of middle 1/3 of right upper arm 7 cm below right shoulder.

INTERNAL SECTION

All the internal organs were healthy. The Stomach was full of food and was healthy. Small amount of chyme was present in the small intestine. Small amount of stool was present ion the large intestine. Urinary

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bladder was healthy and was empty. The spleen was healthy but contracted.

OPINION.

In my opinion death in this case occurred due to mainly injuries No.1, 2, 5, 16 and 17 which caused intensive intra-crobral haemorharrage, shock and death while rest of the injuries had an addative affect. All the injuries were ante-mortem and were inflicted by (metallic pieces) blast (splinter injuries) were sufficient to cause death in an ordinary course of nature. Probable time between injuries and death was 2 to 3 hours and between death and postmortem was about 4 hours”.

7.PW-6 Ijaz Ahmed Dispenser while appearing before the trial court stated as under: - “I have brought the record pertaining to Postmortem Report No.15/94 of Shahid Javed S/O Alla Ditta r/o Mohallah Block Shah, Jhang Saddar, pertaining to THQ Hospital, Shahpur Distt. Sargodha, which was conducted by Dr. Pervaiz Qayyum the then M.O. of the same hospital who has gone to America and is no more in service. I have worked with the said doctor and I am thus acquainted with the hand writing and signature of the said doctor. I placed on record attested copy of Postmortem report Ex.PD and pictorial diagram Exh.PD/1 and Ex.PD/2. The said documents are in the hand writing of doctor Pervez Qayyum and bears his signatures. I also produced attested copy of injury statement signed by the said doctor which is Ex.PD/3.

8.On the other hand, statements of present appellants Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali and their co-accused (stated above since acquitted) were recorded under section 342 Cr.P.C who refuted the allegations so leveled against them and both the present appellants have not opted to appear as a witness under section 340(2) Cr.P.C and produced in defence evidence Ghulam Basit DW-1 and Maulvi Riaz as DW-2 and in documentary evidence produced documents Ex.DA to Ex.DJ and in reply to question No. 7 “why this case against you and why the PWs deposed against you?” the appellant Ghulam Raza Naqvi replied as under:-

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“As I am a renowned shia Alam and remained Preacher of Jamia Husainia and was elected Head of Sipah-i-Muhammad a Shia Organization and as the complainant belonged to Sipah i Sihabah who declared Shaias as Kafir and on the said basis the office bearers of Sipah i Sahaba adopted practice to involve the prominent office bearers of Sipah i Muhammad and in numerous untraced cases I have been involved. In all the cases, in which I was thus tried, I have ben honourably acquitted so far. The complainant of this case has been involved in murder of Allama Allah Bukhsh Azhar, a Khateeb of Old Jamia Mosque, Jhang and faced trial at Sessions Court, Jhang and Layyah. He was thus having enmity with different etc. In this case he was attached upon unknown persons, but he falsely involved me due to described enmity since I was head of Sipah I Muhammad, although on the day of occurrence I away to Iran for purpose of Ziaraat, which is on record of the dept. of Immigration. The witnesses of this case were right hand men of the complainant and are thus not independent witnesses. They have deposed against me being opponent to Shia Sect.”

Likewise, in reply to question “why this case against you and why the PWs deposed against you?” the appellant Shabar Shah alias Muhammad Ali alias Ahmed Ali replied as under:- “Since I am a nephew of accused Allama Ghulam Raza Naqvi, therefore because of their relationship I have been falsely roped in this case. The witnesses of this case were right hand men of the complainant and are thus not independent witnesses. They have deposed against me being opponent to Shia Sect. No identification parade was held for my identification”.

9.After conclusion of the trial, learned trial court convicted the present appellants Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali with above stated sentences through judgment dated 24.06.2006. Hence this appeal.

10.Learned counsel for the appellants contended that:-

(i)the judgment of the trial court dated 24.06.2006 is against law and facts on the file and is liable to be set-aside.

(ii)that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial

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court has convicted the appellants on the basis of surmises and conjectures;

(iii)it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;

(iv)it is contended that complainant never appear before the trial court;

(v)it is further contended that at the time of registration of the FIR, ATA 1997 was not in existence as the alleged occurrence was taken place much prior to the promulgation of this Act and there is no possibility of the appellants being convicted in this offence;

(vi)lastly submitted that appeal may be accepted and the judgement of the trial court dated 24.06.2006 may kindly be set aside and appellants may be acquitted.

11.On the other hand, learned APG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that: -

(i)prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.

12.Learned APG while arguing in criminal appeal No.492 of 2007 has submitted that: -

(i)as the prosecution has proved its case beyond shadow of doubt against respondents No.1 to 14 so learned trial court wrongly acquitted them whereas in view of the facts and the circumstances of the case, they are liable to be convicted;

13.We have heard the learned counsel for the parties and perused the record.

14.The detail of prosecution case as given by Muhammad Sarfraz PW-8 Security Guard of Maulana Azam Tariq (since died) has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

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15.Firstly, we would like to see the applicability of Section 7 ATA 1997 and conviction under this section in the instant case by the trial court when admittedly this penal section was not in existence at the time of occurrence of this case i.e. 22.8.1994.

16.According to the written application Ex.PA moved by complainant Mulana Muhammad Azam Tariq (since died) for registration of the FIR Ex.PA/1 occurrence took place on 22.8.1994 at 04:00 p.m.

17.The Anti-Terrorism Act 1997 (Act No. XXVII of 1997 as amended by Act XIII and XX of 2013 came into force on 20.8.1997 and thus admittedly this Anti- Terrorism Act 1997 was not in existence on the day of occurrence i.e. 22.8.1994.

18.Article 12 of the Constitution of Islamic Republic of Pakistan 1973 is hereby reproduced for reference: - “12. Protection against retrospective punishment.

(1)No law shall authorize the punishment of a person (a) For an act or omission that was not punishable by law at the time of the act or omission; or (b) For an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

(2)Nothing in clause (1) or in Article 270 shall apply to any law making act of abrogation or subversion of Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence”.

19.Likewise, Section 38 of the ATA 1997 reads as follows:-

“38. Punishment for terrorist act committed before this Act--- Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed”.

20.In view of the above, it is crystal clear that case could have been tried by the Anti-Terrorism Court under ATA 1997 but the punishment could not have been given to the accused under the provisions of the new dispensation and in which case the existing law at the relevant time had to be applied.

21.In the instant case, Anti-Terrorism Court/trial court has wrongly convicted both the appellants Ghulam Raza Naqvi and Shabar Shah alias

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Muhammad Ali alias Ahmad Ali under sections 7(a), 7(b), 7 (d) of ATA 1997 which provisions were not in existence at the time of occurrence i.e. 22.8.1994 because any person accused of having committed an offence before the commencement of ATA 1997 could be tried by the court constituted under this Act but the punishment awarded shall be in accordance with law prevailing at the time when the offence was committed provided the offence otherwise constituted a Terrorist Act. Reliance is placed on case Maqbool Ahmad and another v. the State (2007 SCMR 116) in which Hon’ble Supreme Court of Pakistan has observed at pages 117 & 118 as under: - “In the instant case the offence has taken place on 05.06.1997 when, according to section 10(3) of Ordinance VII of 1979 the punishment of the offence was imprisonment for a term which could extend to 25 years and whipping numbering thirty stripes. So far as section 10(4) of the Ordinance is concerned, it was introduced in December, 1997 and hence no punishment could be awarded under the said section, being in glaring violation of Article 12 of the Constitution.

The objection regarding the conduct of trial by Special Court under Anti-Terrorism Act, 1997, is unfounded. Any person accused of having committed an offence before the commencement of Anti-Terrorism Act of 1997 could be tried by the Court constituted under the Act but the punishment awarded shall be in accordance with law prevailing at the time when the offence was committed; provided the offence otherwise constituted a Terrorism Act. We are of the considered view that the trial by Anti-Terrorism Court was in accordance with law, protected by section 38 of the Anti- Terrorism Act, 1997. However, section 38 of the Act read with Article 12 of the Constitution would certainly under the punishment awarded under section 10(4) of the Ordinance void ab initio, with reference to the date of occurrence and the date of insertion of section 10(4) in the Ordinance.

Reliance is placed on case Khalil-ur-Rehman v. The State (PLD 2002 Lahore 19) in which it is held at page 27 as under: - “The occurrence relates to 18.5.1992 when the Anti- Terrorism Act of 1997 had not been promulgated and one wonders how the learned Judge of the Anti- Terrorism Court constituted under ATA of 1997 could punish the appellant under section 7 of the Act.

Section 38 of the Anti-Terrorism Act, 1997, reads as follows:- “Punishment for terrorist act committed before this Act--- Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder

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he shall be tried under this Act but shall be liable to punishment as authorized by law at the time the offence was committed” Which means that whereas the case could have been tried by the ATA Court but the punishment could not have been given under the provision of the new dispensation and in which case the existing law at the relevant time had to be applied. We, therefore, set aside the conviction under section 7 of the ATA as well as the sentence to death”.

22.In view of the above, considering article 12 of the Constitution of Islamic Republic of Pakistan 1973 and section 38 of the ATA 1997, we, therefore, set aside the convictions and sentences recorded under section 7(a), 7(b) and 7(d) of ATA 1997 by the Anti-terrorism Court/trial court against both the appellants.

23.According to the FIR Ex.PA/1 occurrence took place on 22.8.1994 at 4:00 pm near temporary bridge known as ‘Saim Nala Nawan Loke’.

24.Muhammad Sarfraz PW-8 and Abdul Rasheed Constable PW-9 claim themselves to be the eye witnesses of the occurrence. Muhammad Sarfraz PW-8 stated that on 22.8.1994, he was travelling with Maulana Muhammad Azam Tariq (since died) as his Security Guard whereas Abdul Rasheed constable PW-9 stated that on 22.8.1994 he was Gunman of Maulana Muhammad Azam Tariq (since died) and was travelling with him on a Double Caben Dala and left Jhang for Islamabad to attend Assembly Session and further stated that other persons Muhammad Farooq, Haji Imtiaz constable (deceased) Muhammad Shahid (deceased) Ihsan-ul-Haq and Abdul Rehman were also travelling on above stated Dala with Maulana Sahib. When they reached near Bridge ‘Nawa Loke’, Muhammad Sarfraz PW-8 again informed Abdul Rasheed constable PW-9 regarding suspicious Dala and on the direction of Maulana Sahib, Driver had hardly stopped the vehicle and they were in the process of boarding down, the instant occurrence took place and they saw the occurrence.

25.The presence of above mentioned eye witnesses Muhammad Sarfraz PW-8 and Abdul Rasheed

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constable PW-9 at the spot at the relevant time, therefore, cannot be considered as unnatural or improbable. Both the above mentioned eye witnesses were cross-examined at length but their evidence could not be shaken during the process of cross examination. They corroborated each other on all material aspects of the case. Their evidence is trust worthy and straight forward to the extent of appellants Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali.

26.The medical evidence of the prosecution was furnished by Doctor Zulifqar Ali Ch. PW-7 who conducted postmortem examination on the dead body of Haji Imtiaz deceased on 22.8.1994 at 11:00 pm detail of which is mentioned in para No.6 of this judgment and no need to repeat the same to avoid the repetition.

27.Likewise, PW-6 Ijaz Ahmed Dispenser appeared to prove relevant documents regarding postmortem examination of Muhammad Shahid deceased through secondary evidence due to non-availability of the concerned medical officer. Detail of which is mentioned in para No.6 of this judgment.

28.Admittedly, injuries observed on the persons of Haji Imtiaz and Muhammad Shahid deceased were inflicted by Metallic pieces and further PW-16 Agha Asghar Ali, Unit Commander, Bomb Disposal Unit stated in his statement before the trial court as under: - “On 22.8.1994, I was posted as Bomb Disposal Officer, in the office situated at Old Anarkali, Lahore. ON the said date Abdul Ghafar Constable brought me a sealed parcel containing a piece of bomb, and I examined the said metallic piece and therefore prepared report, which is Ex.PH, which is signed by me”

and all the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature and probable time between death and postmortem was about four hours which is in line with ocular account furnished by Muhammad Sarfraz PW-8 and Abdul Rasheed PW-9.

29.We are, therefore, of the view that medical evidence has fully supported the above mentioned ocular account.

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30.Motive of the occurrence mentioned in the written application Ex.PA is as under:-

31.Maulana Muhammad Azam Tariq complainant of the FIR could not appeared during the trial due to his death as he died even before framing of charge whereas Muhammad Sarfraz PW-8 did not utter a single word regarding motive in his statement before the trial court but Abdul Rasheed PW-9 stated that concurrence took place on the abetment of Iftikhar Hussain Naqvi and Sana-ul-Haq Trimizi (acquitted accused) since a Bill was to be placed in Assembly Session regarding ‘Namoos-e-Sahaba’.

32.We perused the statements of Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali appellants recorded under section 342 Cr.P.C where motive has not been put to them.

33.It is settled law that if any piece of evidence is not put to accused in his statement under section 342 Cr.P.C, then, the same cannot be used against him for his conviction. Reliance is placed on case titled “Muhammad Shah V. The State (2010 SCMR 1009) in which Hon’ble Supreme Court of Pakistan has observed at page 1015 as under:- “The perusal of statement of the appellant, under section 342 Cr.P.C, reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342 Cr.P.C enabling him to explain the circumstances particularly when the same was abandoned by him. It is well settled that if any piece of evidence is not put to the accused in his statement under section 342 Cr.P.C then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained”.

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34.Even otherwise, no documentary evidence regarding motive has been produced by the prosecution and prosecution has failed to prove the motive.

35.Muhammad Yar Gondal I.O of this case PW-10 stated that on 5.1.1997, he sought permission from the concerned Magistrate to join Ghulam Raza Naqvi present appellant in the instant case as an accused through his formal arrest who had already under custody in another case. He further stated that the weapon of offence already stood recovered before his arrest in this case so he sent him to Judicial lockup on the same day and stated in cross examination that he doesn’t know that Ghulam Raza Naqvi has been acquitted in the said recovery of the weapon of offence and admitted that the case file of case FIR No. 136 of 1994 of police station Shahpur Sadar was bought before him at the time of arrest of the accused Ghulam Raza Naqvi present appellant and further he admitted that as per above mentioned file the empties were recovered from the place of occurrence and he had not made any efforts to have comparison of the empties recovered from the place of occurrence with so called recovered weapon of offence.

36.Mansab Ali Inspector/I.O of this case PW-17 stated that on 21.10.1997 he arrested Shabar Shah alias Muhammad Ali alias Ahmad Ali appellant and during his personal search one pistol of 38 bore P-6 was recovered and on unloading the same 6 live bullets P-7 (1-6) were also recovered along with two Magazine P- 8/1-2 and on unloading the same seven live bullets each P-9/1-14 were recovered. Leather Bag P-10 was also recovered which was in the hand of accused Shabar Shah alias Muhammad Ali alias Ahmad Ali and on the search of said Bag, a Kalashnikov P-11 with 290 bullets P-12/1-290 were recovered. In addition to that 15 live bullets of 44 bore rifle P-13/1-15 were recovered from a separate shopper lying in a Bag. 114 live bullets of 38 bore P.14/1-114 were lying in a separate shopper bag. A bullet proof Jacket P-15 was also recovered from the said Bag. A small size Matress ‘Gada’ was also

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recovered from the said Bag and all above stated recovered items were taken into possession through recovery memo Ex.PJ attested by Hassan Muhammad ASI. But, learned trial court has rightly not considered above stated recoveries from both the appellants as corroboratory evidence in this case in absence of positive matching report from the Balasstic Expert well mentioned in para No. 38 of the impugned judgment.

37.Although, we have disbelieved motive of the occurrence mentioned in application Ex.PA which otherwise was not put to both the appellants in their statements recorded under section 342 Cr.P.C and alleged recoveries discussed in the previous paras of this judgment are not helpful to the prosecution in the instant case in absence of positive matching report from Ballastic Experts well mentioned in para No.38 of the impugned judgment but if the prosecution evidence qua the motive and aforementioned recoveries is excluded form consideration, even then, there is sufficient incriminating evidence available on the record to prove the prosecution case against both the appellants. As discussed earlier, prosecution case was proved against both the appellants through the evidence of eye witnesses namely Muhammad Sarfraz PW-8 and Abdul Rasheed PW-9. Although, these two PWs have been disbelieved to the extent of 14 acquitted accused detail of which is mentioned in last of para No.1 of this judgment but it is well settled by now that maxim “falsus in uno falsus in omnibus” has no universal application and it is bounded duty of the Court to sift the grain from the chaff and the credibility of Muhammad Sarfraz PW-8 and Abdul Rasheed PW-9, (eye witnesses) could not be said to have been shattered due to the above stated acquittal of 14 accused. Reliance is placed on case titled Elahi Bakhsh Vs. Rabnawaz and another (2002 SCMR 1842) in which Hon’ble Supreme Court of Pakistan has observed at page 1847 as under:- “in such an eventuality the credibility of “Ellahi Bukhsh PW-7 and Abdur Razzaq

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PW-10 could not be said to have been shattered due to the said acquittal. It is well settled by now that the maxim ‘falsus in uno falsus in omnibus’ has no universal application and it is bounden duty of the court to sift the grain from the chaff. In this regard reference can be made to Khairu. State (1981 SCMR 1136). A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses are consistent, confidence inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition for Leave to Appeal (108/2001) being devoid of merit is dismissed”.

38.Adverting to defence plea of both the appellants, Ghulam Raza Naqvi appellant/convict stated in his statement under section 342 Cr.P.C in reply to question “why this case against you and why the PWs deposed against you?” as under:- “As I am a renowned shia Alam and remained Preacher of Jamia Husainia and was elected Head of Sipah-i-Muhammad a Shia Organization and as the complainant belonged to Sipah i Sihabah who declared Shaias as Kafir and on the said basis the office bearers of Sipah i Sahaba adopted practice to involve the prominent office bearers of Sipah i Muhammad and in numerous untraced cases I have been involved. In all the cases, in which I was thus tried, I have ben honourably acquitted so far. The complainant of this case has been involved in murder of Allama Allah Bukhsh Azhar, a Khateeb of Old Jamia Mosque, Jhang and faced trial at Sessions Court, Jhang and Layyah. He was thus having enmity with different etc. In this case he was attached upon unknown persons, but he falsely involved me due to described enmity since I was head of Sipah I Muhammad, although on the day of occurrence I away to Iran for purpose of Ziaraat, which is on record of the dept. of Immigration. The witnesses of this case were right hand men of the complainant and are thus not independent witnesses. They have deposed against me being opponent to Shia Sect.”

But he did not appear under section 340 (2) Cr.P.C and also produced in defence DW-1 & DW-2 and documentary evidence i.e. Ex.DA to Ex.DJ to support his plea.

39.Likewise, Shabar Shah alias Muhammad Ali alias Ahmad Ali appellant/convict stated in his

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statement under section 342 Cr.P.C in reply to question “why this case against you and why the PWs deposed against you?” as under:- “Since I am a nephew of accused Allama Ghulam Raza Naqvi, therefore because of their relationship I have been falsely roped in this case. The witnesses of this case were right hand men of the complainant and are thus not independent witnesses. They have deposed against me being opponent to Shia Sect. No identification parade was held for my identification”.

40.Both the appellants did not appear under section 340(2) Cr.P.C. Ghulam Basit DW-1 stated that he previously never appeared before the police to make a statement, likewise, Maulvi Riaz PW-2 stated that he never appeared before the local police during investigation to make such statement.

41.In view of the above, Both the appellants could not establish their defence plea with solid evidence and same is hereby discarded.

42.Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of both the appellants. Firstly we did not consider the recoveries as corroboratory evidence in absence of matching report of Ballastic Expert. Secondly, we have already disbelieved the motive story of the prosecution which otherwise had not been put to both the appellants in their statements recorded under section 342 Cr.P.C and cannot be read against both the appellants. Thirdly, 14 accused have been acquitted by disbelieving the evidence of Muhammad Sarfraz PW-8 and Abdul Rasheed PW-9 (eye witnesses to their extent). It is not determinable in this case as to what was the real cause of occurrence and as to what has actually happened immediately before the occurrence which resulted into present unfortunate incident. Therefore, in our view, the death sentence awarded to Shahid and Muhammad Azam appellants is quite harsh.

43.Ghulam Raza Naqvi appellant was arrested on 5.1.1997 whereas Shabar Shah alias Muhammad Ali alias Ahmad Ali appellant was arrested on 21.10.1997 and since then they are behind the bars and have

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undergone about 17 years without calculating their remissions earned by them and thus have acquired expectancy of life. Reliance is placed on case titled “Dilawar Hussain Vs. The State” (NLR 2013 Crl. 494).

44.After perusing of the medical evidence and ocular evidence it transpired that firing was attributed jointly and the injuries caused by them had collectively culminated in death of Haji Imtiaz and Shahid deceased and occurrence in this case had taken place 17 years before on 22.8.1994 and present two appellants had already undergone agony of the protected trial. Reliance is placed on case Muhammad Yaqoob and others V. The State and others (2009 SCMR 527) in which Hon’ble Supreme Court of Pakistan has observed at pages 535 and 536 as under:- “ As regards the quantum of sentence through the learned trial Judge has not inflicted normal penalty for murder on the appellants on the ground that since all the three appellants were real brothers, therefore, he did not want to inflict capital punishment on them, yet, we are afraid the reason being absurd simply and extraneous to the established principles governing the administration of criminal justice, can neither be recognized nor approved. Relationship inter se of the accused persons can hardly be a consideration for imposition of lesser penalty and it can also not be regarded as a mitigating circumstance by any stretch of imagination. However, despite that, we are not inclined to enhance the sentence inflicted on the appellants because as per record, in the instant case, firing was attributed to all the accused persons and it too, has come on record that the injuries caused by the accused persons collectively culminated in death of the deceased persons, therefore, we feel that ends of justice would be met with if sentences inflicted on the appellants are maintained as awarded by the trial Court particularly in view of the fact that the occurrence took place way back in 1999 and the accused persons have already undergone the agony of a protracted trial. In this view we are fortified by the observations made in the case of Muhammad Idrees, etc. v. The State 2008 SCMR 1544”.

45.It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case of Meer Muhammad alias Meero Vs. The State (2009 SCMR 1188) wherein the Hon’ble Supreme Court of Pakistan has held as under:-

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“it will not be out of place to emphasize that in criminal cases the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.

46.Further reliance is placed on case Zafar Iqbal and others v. The State (2014 SCMR 1227) in which Hon’ble Supreme Court of Pakistan has observed at page 1235 & 1238 as under: - “the question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain’s two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery” “All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants could not be made liable to the maximum punishment provided under section 302(b) PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of section 382-B Cr.P.C, this appeal is partially allowed in the above terms”.

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47.For the foregoing reasons, the convictions of Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali appellants under section 302(b) PPC read with section 148 & 149 PPC awarded by the leaned trial court through impugned judgment dated 24.6.2006 is maintained but their sentences are altered from death to imprisonment for life. The compensation awarded by the trial court under section 544-A Cr.P.C payable to the legal heirs of Haji Imtiaz and Shahid deceased and sentence in default thereof is maintained and upheld. Conviction and sentence of Ghulam Raza Naqvi appellant under section 4/5 of the Explosive Substance Act 1908 is maintained. The benefit of section 382-B Cr.P.C is also given to the appellants and all the sentences are ordered to be run concurrently.

48.Further, no PW sustained any injury and both the appellants were convicted under section 324 PPC with the allegation of ineffective firing. This allegations seems to exaggeration on the part of prosecution witnesses namely Muhammad Sarfraz PW-8 and Abdul Rasheed PW-9.

49.In view of the above, convictions and sentences of both the appellants under section 324 PPC are hereby set-aside.

50.Consequently, with the above said modification in the sentences of Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali present appellants, Criminal Appeal No. 1112 of 2006 filed by the present appellants is hereby dismissed. C.S.R No.37-T of 2006 is answered in NEGATIVE and death sentences of Ghulam Raza Naqvi and Shabar Shah alias Muhammad Ali alias Ahmad Ali present appellants are NOT CONFIRMED.

51.So far as, Criminal Appeal No. 492 of 2007 filed by state against the acquittal of respondents No. 1 to 14 is concerned, Respondents No. 1 to 14 are admittedly not mentioned in the FIR Ex.PA/1 and no specific role is attributed to them and no identification parade was conducted regarding identification of the

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accused/Respondents No. 1 to 14. Learned trial court has given solid reasons for the acquittal of Respondents No. 1 to 14 in paras No. 36 & 44 of its judgment. The judgment of the trial court to the extent of acquittal of respondents No. 1 to 14 is neither perverse nor illegal and same is not the result of misreading or non-reading of evidence to this extent. It is held in case “Muhammad Tasaweer Vs. Hafiz Zulkaranain and 2 others” published in PLD 2009 SC 53 at page 57, as under: - “Needless to emphasize that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this court in Muhammad Mansha Kausar versus Muhammad Asghar and others, (2003 SCMR 477) “that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading non-reading of evidence.... Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible”

52.Learned APG could not point out any illegality in impugned judgment to the extent of acquittal of Respondents No. 1 to 14. It is concluded that Criminal Appeal No. 492 of 2007 against acquittal of Respondents No. 1 to 14 has no merits and is dismissed in limine.

53.Before parting from this judgment, it is observed that Zubair Abbas alias Ghulam Muhammad, Anwar Haider alias Shah Jamal, Fawwad Shah alias Akmal Lahori alias Noor Shah and Manzar Abbas are the POs, their case shall be decided on its own merits by the trial court whenever they were arrested or surrendered without being influenced from this judgment.

(Abdul Sami Khan) (Sadaqat Ali Khan) Judge Judge

Approved for reporting

Irfan