Muhammad Shabbir vs State

CJDA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

Criminal Appeal No. 534 of 2007 (Muhammad Shabbir etc. Vs. The State etc.)

(C.S.R NO. 34-T of 2007) Date of hearing: 23.10.2014 Appellants by: Ch. Muhammad Anayat Ullah Cheema and Malik Muhammad Suleman Awan, Advocate

Complainant by: Syed Imdad Hussain Hamdani, Advocated

State by: Mr. Khurram Khan, DPG

Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No. 534 of 2007 filed by Mohammad Shabbir, Mohammad Ameer (since died), Mohammad Imran, Mohammad Munir and Mohammad Hussain present appellants (against their convictions) and C.S.R No.34-T of 2007 sent by the learned trial court i.e. Special Judge Anti-Terrorism Court, Sargodha for confirmation of the death sentences of appellants stated above or otherwise as both the matters have arisen out of the same judgment dated 29.03.2007 passed by learned Special Judge, Anti- Terrorism Court, Sargodha according to which all the present appellants were convicted:-

(i)“under section 302/149 PPC and sentenced to death each for committing the murder of Naeem Ullah deceased along with compensation Rs.1,00,000/- each payable to the legal heirs of the deceased and in default thereof further undergo six months

S.I.

(ii)under sections 302/149 PPC and sentenced to death each for committing the murder of Hafeezullah deceased along with compensation Rs.1,00,000/- each payable to the legal heirs of the deceased Hafeezullah and in default thereof further undergo Six months S.I.

(iii)under sections 302/149 PPC and sentenced to death each for committing the murder of Hameedullah deceased along with compensation Rs.1,00,000/- each payable to the legal heirs of the deceased Hameedullah and in default thereof further undergo Six months S.I.

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(iv)they were also convicted under sections 324/149 PPC and sentenced to ten years R.I each for attempting to commit the Qatl-i-Amd of Said Rasool along with fine Rs.50,000/- each and in default thereof further undergo three months S.I.

(v)under sections 337-A(i)/149 PPC and to pay Rs. 25,000/- each as ‘Daman’ for causing Shajjah-e-Khafifah to Said Rasool and in default thereof further undergo two years

R.I.

(vi)under sections 337-A(ii)/149 PPC and to pay Rs. 15,000/- each for causing Shajjah-e- Mudiah to Said Rasool as five percent of ‘Arsh’ and also undergo five years R.I as Tazir.

(vii)under sections 337-F(i)/149 PPC and to pay Rs.25,000/- each as ‘Daman’ for causing Ghayr-Jaifah Damiyah to Said Rasool and also undergo one year R.I as Tazir.

(viii)under sections 337-F(iii)/149 PPC and to pay Rs. 25,000/- each as ‘Daman’ for causing Ghayr-Jaifah Mutalamimah to Said Rasool and also undergo three years R.I as Tazir.

(ix)under sections 337-F(vi)/149 PPC and to pay Rs. 25,000/- as ‘Daman’ for causing Ghayr-Jaifah Munaqqillah to Said Rasool and also undergo seven years R.I each as Tazir.

(x)under sections 148/149 PPC and sentenced to undergo three years R.I each.

(xi)under sections 7 (a) of the Anti-Terrorism Act 1997 and sentenced to death each for committing the act of terrorism and causing death of three persons along with fine Rs.50,000/- each and in default thereof further under three years S.I.

(xii)under sections 7 (c) of the Anti-Terrorism Act 1997 read with section 149 PPC and sentenced to life imprisonment each for committing an act of terrorism by causing serious injuries to Said Rasool along with fine Rs.50,000/- each and in default thereof further under three years S.I.

in case FIR No. 72 dated 16.2.2005 under sections 302/324, 148/149/395 PPC read with section 7 ATA 1997 police station Jauharabad District Khushab.

2.The facts of the case have been stated by Mazhar Anwaar/PW-20 real brother of Naeemullah deceased in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts: - “Naeemullah (deceased) was my younger brother whereas Hafeezullah (deceased) was his driver. Hameedullah (deceased) was also from my village. Said Rasool (pw) was “Kardar” (Manager) of Naeemullah (deceased). I know all accused of this case. Muhammad Shabbir, Ameer accused present in court and Khuda Bakhsh (PO) are real brothers. Imran Qureshi and

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Muhammad Hussain accused present in court are their friends whereas Muhammad Muneer accused present in court is brother- in-law (Sala) of Muhammad Shabbir accused.

On 16.02.2005 at about 01:00 pm when I alongwith Gul Hayat Bali and Gul Hayat Kandan (PWs) while moving towards Lorry Adda reached near the house of Mahboob Mastial, there came Jeep No.B- 4302/NWFP in which Naeemullah, Hafeezullah (both deceased) and Said Rasool (PW) were sitting and they were moving towards from Adda. Hafeezullah (deceased) was driving it whereas Naeemullah (deceased) was sitting on front seat. Said Rasool (PW) was on the back seat. (Jeep is parked outside the court today). When Jeep arrived near the shop of Muhammad Iqbal Lohar, it became slow due to speed breaker there and at that occasion from the shop of Muhammad Iqbal Lohar there emerged Khuda Bakhsh (PO), Muneer, Imran Qureshi, Ameer accused all armed with Kalashnikovs, Shabbir armed with G-III rifle and Muhammad Hussain @ Imran Abbas in possession of 12 bore repeater. They came in front of the Jeep. Shabbir accused by raising lalkara fired with G-III rifle a burst that hit on the head of Naeemullah (deceased). Imran Qureshi accused fired a burst of Kalashnikov that hit on the chest of Naeemullah deceased. Mohammad Ameer caused fired a burst that hit on the face of Hafeezullah deceased. Mohammad Hussain accused fire with repeater that hit on left flank of Said Rasool PW. Muneer accused fired a burst that hit on the fact of Naeemullah (deceased) Khuda Bakhsh PO also fired a burst that hit on the chest of Hafeezulalh deceased. There after all accused started indiscriminate firing on the jeep and fires hits on different parts of the bodies of both deceased and Said Rasool PW. At the time of escape from there towards Adda Shabbir accused had removed a Kalashinkove, its license and magazine bag of Naeemullah deceased form the Jeep. While escaping and on the way Hameedullah deceased met the accused who stated the accused had committed cruelty and he met them at a distance of about 30 feet from place of occurrence. On this the accused Shabbir, Ameer and Khuda Bakhsh PO made indiscriminate firing on Hameedullah and those hit on different parts of body of Hameedullah who died at the spot. Accused then by firing had escaped

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towards Adda. All of us had witnessed this occurrence”.

3.After registration of the case, investigation started and on completion of the same 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 charge on 20.03.2007 against the present appellants/convicts Mohammad Shabbir, Mohammad Ameer (since died), Mohammad Imran, Mohammad Munir and Mohammad Hussain under sections 302, 324, 337-A(i), (ii), 337-F(i) (iii) (vi), 382, 395, 404, 412, 148/149 PPC read with section 7 (a) & (c) of ATA 1997 to which they pleaded not guilty and prosecution evidence was summoned.

5.Prosecution produced Dr. Ajmal Nadeem Khan Niazi, PW-1, Ch. Muhammad Azam Ghumman PW-2, Saifullah PW-3, Muhammad Nawaz-ul-Haq PW-4, Ahmad Iqbal PW-5, Muhammad Shakkirullah PW-6, Muhammad Ibrahim PW-7, Adalat Khan ASI PW-8, Iftikhar ul Hassan constable PW-9, Muhammad Iqbal Constable PW-10, Ghulam Shabbir ASI PW-11, Ali Nawaz ASI PW-12, Atta Muhammad Constable PW-13, Muhammad Khalil H.C PW-14, Liaqat Hayat Constable PW-15, Muhammad Iqbal Constable PW-16, Mukhtar Haider ASI PW-17, Ghulam Jaffar PW-18, Allah Bakhsh PW-19, Mazhar Anwaar complainant PW-20, Said Rasool PW-21, Sultan Ahmed Inspector PW-22 whereas PWs namely Mahmood Akhtar ASI (since died) and Muhammad Iqbal, Azhar Naeem, Mohammad Habib Nawaz, Mohammad Khan, Mansabdar, Abid Hussain Constable, Ameer Abdullah SI, Sultan Mahmood, Mohammad Bakhsh, Shahadat, Mukhtar Aghjad, Mohammad Hayat SI, Mohammad Feroze, Atta Mohammad and Dr. Abdul Qaddus were given up by the prosecution being unnecessary and tendered in FIR Ex.PBB, postmortem reports Ex.PC to Ex.PE, copies of application from police to Doctor and Reports Ex.PF/1 to Ex.PF/7, site plan Ex.PG, recovery memo of blood stained earth Ex.PH, recovery memo of cartridges Ex.PI

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to Ex.PQ, copy of FIR dated 4.12.1994 Ex.PR, recovery memo of blood stained clothes Ex.PS, recovery memo of driving license Ex.PT, recovery memo of Car No. 4949/LRZ Ex.PU, recovery memo of Kalashnikov Ex.PV to Ex.PX, recovery memo of gun 12 bore Ex.PY, recovery memo of Kalashnikov Ex.PZ, recovery memo of Rifle G- III Ex.PAA, recovery memo of blood stained clothes Ex.PCC, copy of death reports Ex.PEE to Ex.II, recovery memo of blood stained earth Ex.PJJ to Ex.PLL, recovery memo of Jeep No. B-4303/NWFP Ex.PMM, copy of application for warrant of arrest and orders Ex.PPP/1, copy of application for proclamation and order Ex.PQQ, report of Chemical Examiners Ex.PRR, Ex.PSS, Ex.PTT, Ex.PUU, reports of Serologist Ex.PVV, Ex.PWW, Ex.PXX, Ex.PYY, report of FSL Lahore Ex.PZZ, copy of non bailable warrants of arrest Mark-A, copy of proclamation and report Mark-B and closed the prosecution evidence.

6.Medical evidence was furnished by Dr. Ajmal Nadeem Khan Niazi, Medical Officer, DHQ Hospital Jauharabad PW-1 who stated that 16.2.2005 he conducted the postmortem examination on the dead bodies of Malik Naeemullah, Hafeezullah and Hameedullah, and also medically examined Said Rasool injured PW-21 detail of which is as under: - “I have medically examined Said Rasool injured on 16.2.2005 at 2:10 pm and observed following injuries on his person:-

1.An entrance wound of firearm projectile 1 x 3⁄4 cm on left side of forehead.

2.An exit on center of forehead.

3.Two entrance wounds side by side each measuring 1⁄2 x 3⁄4 cm on right temporal region of skull.

4.An exit wound 3x11⁄2 cm elliptical on back of right ear (exit of injury No.3).

5.A firearm grooved wound 4 x 3⁄4 cm on back of right ear in front of injury No4.

6.A grooved wound of firearm projectile just in front of right ear.

7.An entrance wound of firearm projectile 3⁄4 x 1⁄2 cm on back of left shoulder.

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8.An exit wound of firearm 10x8 cm on front and outer side of left shoulder (exit of injury No.7).

9.An entrance wound 3⁄4 x 1⁄2 cm on back of left scapular region.

10.An exit wound 3x2 cm elliptical in mid axillary line at 6th ICS left side.

11.A group of pellets each measuring 1⁄4 x 1/3 cm in an area of 6x5 inches on left loin.

12.A grooved firearm wound 3 x 1⁄2 cm on front of left elbow.

13.A grooved wound 3 x 1⁄2 cm on outer side of left loin.

14.An entrance wound 1⁄2 1⁄2 cm on outer side of left buttock.

15.An exit wound 1⁄2 x 1⁄2 cm on inner side of left buttock. It was exit of injury No.14.

16.A grooved wound 12x3 cm on front of left thigh.

17.An entrance wound 1⁄2 x 3⁄4 cm on front of left thigh below to injury No.6.

18.An entrance wound 1⁄2 x 3⁄4 cm on front of left knee.

19.An entrance 1 x 1⁄2 cm on inner side of left knee.

All injuries were kept under observation, which were caused by firearm having the duration of an hour to 1 1⁄2 hours.

“On 16.02.2005 at about 04:00 pm I had conducted postmortem examination on the dead body of Malik Naeemullah son of Saifullah caste Tiwana who was brought by Police identified by Mansabdar alongwith Saifullah.

It was a dead body of a middle aged man lying spine on table wearing Qameez, Dhoti, Bunian and brown colour Sweeter, Khaki Clothes. Postmortem staining not present. Rigor mortis not present. Face was damaged and only one right eye hanging from orbit. On examination I found following injuries on the body of deceased:-

1.An entrance wound 1 x3⁄4 cm on right side of fact at lower margin of right mandible.

2.An enterance wound 1 x3⁄4 cm on right side of neck below to injury No.1 3. Whole of the face missing with multiple grooves on edges of remaining skin of firearm. All the face except right eye ball faces bones and brain matter missing due to firearm injuries. Scalp in upper region was missing.

4.An entrance wound 1x1⁄2 x 1 cm on right side of neck.

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5.An exit wound of firearm projectile 10x4 cm on left supera clavicular fossa.

6.An entrance wound 1x3⁄4 cm on front of upper chest left side.

7.An entrance wound 1x3⁄4 cm on front of left chest, 1 cm below to injury No.6.

8.An entrance wound 1x3⁄4 cm on front of left chest, 2 cm below to injury No.7.

9.A large exit wound 12x4 cm on outer side of left shoulder.

10.An entrance wound x3⁄4 cm on front of right shoulder.

11.An exit wound 11⁄2 cm x 1 cm on back of right shoulder.

12.An entrance wound of firearm projectile on front of right loin measuring 1x3⁄4 cm.

13.(Note no injury has been mentioned against serial No.13 as after serial No.12 the witness had written serial No.14. Correction has been avoided because in subsequent statement references of all injuries will contradict the statement and postmortem report).

14.An exit wound of injury No.12 in mid axillary line on right side in 8th ICS.

15.An entrance wound 1x3⁄4 cm on front of left lower chest.

16.An exit wound 5x2 cm elliptical at sternum. (Exit of injury No.14).

17.An entrance wound 1x3⁄4 cm left side of upper abdomen.

18.An exit wound 3x2 cm on lower part of sternum. It was exit of injury No.16.

19.An entrance wound 1⁄2x3⁄4 cm below umbilicus.

20.Exit of injury No.18 it was 2 cm away from injury No.18 measuring 1 x3⁄4cm.

21.A burning touch 13 x 1⁄2 cm on back of left loin left side of abdomen.

22.An entrance wound 1 x3⁄4cm on front of left inguinal region.

23.An exit wound 6x3 cm on back of left. It was exit of injury No.21.

24.An entrance wound 1 1⁄2 x 1 cm on back of right chest in upper half.

25.An entrance wound 1 x 3⁄4 cm on left side of back of chest in posterior axillary line in 7th ICS.

26.An exit of injury No.24 on back of left chest in 8th ICS. It was close to mid line.

27.An entrance wound of firearm projectile 11⁄2 x 1 cm on back of right chest in 8th

ICS.

28.An entrance wound of firearm projectile 11⁄2 x 2 cm on back of right lower chest. On examination of thorax right and left pleurae cavity were having blood. Two bullets were found in right chest, which were sealed and handed over to the police. Lungs, pericardium and heart were punctured through and through at many

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points. Blood vessels were ruptured. Remaining organs of thorax were healthy.

On abdominal examination walls, mouth, diaphraghm, stomach, small intestines and left kidney were punctured.

In my opinion all injuries were ante-mortem and caused by firearm projectile. Injuries No.1 to 4, 6 to 8, 12, 15, 17, 22, 24, 25, 27 & 28 were sufficient enough to cause death by damaging vital organs and bleeding shock and death collectively as well as separately. It was sufficient enough to cause death in ordinary course of life. Time between injuries and death was immediate whereas between death and postmortem examination it was three hours. After postmortem examination the stitched dead body, postmortem report, police papers and sealed phial containing bullets were handed over to the Police. Carbon copies of postmortem report Ex.PC and sketch of injuries Ex.PC/1 and PC/2 are in my handwriting, which bear my signatures.

On the same day at about 05:00 pm I had also conducted the postmortem examination on the dead body of Hafeezullah son of Noor Muhammad aged 30 years brought by police and identified by same witnesses as earlier.

It was dead body of young man lying spine on table wearing shalwar, qameez (Slati chadar), Banyan and Jercy (dark brown). Eyes were close. Mouth was injured. Rigour mortis started to develop. Postmortem staining present. On examination I found following injuries on deceased:-

1.An entrance wound of forearm projectile about 4x3cm (group of projectiles) on upper lip and below nose.

2.An entrance wound of firearm projectile 1x1cm on center of forehead.

3.An entrance wound 1x 3⁄4 cm on left side of forehead.

4.An exit wound of injury No.3 measuring 11⁄2 x 1 cm on center of upper forehead.

5.A large exit wound 16x11 cm on right side of skull. It was exit of injury No.1.

6.An exit wound 3x2 cm on back of lower skull. It was exit of Injury No.2.

7.An entrance wound 11⁄2 x 1 cm on front of left shoulder. (Bullet removed on dissection on back of shoulder).

8.A firearm grooved wound on lower left shoulder.

9.An entrance wound of firearm projectile on left side of chest on mid axillary line.

10.An entrance wound 1 x 3⁄4 cm on front of left lower crest.

11.An entrance wound of firearm projectile 1 x 1⁄2 cm on front of left lower chest. It was 2 cm outer to injury No.10.

12.An entrance wound skin deep on right lower chest.

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13.Firearm injury to left thumb base cutting apart whole of thumb.

14.Firearm injury to left finger cutting its base but attached.

15.An exit wound 2 x 11⁄2 cm on back of right chest. It was exit of injury No.10.

16.An entrance wound 1 x3⁄4 cm on back of right shoulder.

17.An exit of injury No.16 in front of right shoulder 11⁄2 x 1 cm.

18.An entrance wound on outer side of right shoulder 1⁄2 x 2/3 cm.

19.An exit of injury No.18 measuring 11⁄2 xd 1 cm on front of injury No.18.

20.An entrance wound 1 x 3⁄4 cm on outer side of left lower shoulder.

21.An exit wound of in front of injury No.20 measuring 11⁄2 x 1 cm.

22.An entrance wound on outer side of middle of arm measuring 1 x 2/3 cm.

23.An exit 4x2 cm on front of middle of right forearm.

24.A grooved firearm wound on front of right arm in middle 4 x 1⁄2 cm.

25.A grooved firearm wound on front of below middle of right arm 5 x 1cm.

26.An exit wound 1 x 1⁄2 cm on outer side of lower right arm.

27.An exit of injury No.26 in front of lower right arm.

28.An entrance wound on back of right elbow.

29.An exit wound of injury No.28 on front of right elbow.

30.A grooved firearm injury to right forearm 5 x 1 cm.

31.An entrance wound of firearm projectile on back of left buttock 1 x 11⁄2 cm.

32.An exit wound 9x5 cm on right iliac fossa. Intestines were coming out. It was an exit of injury No.11.

33.A firearm grooved wound 12x3 cm on back of left lower buttock.

34.An exit wound on right buttock 4 x 3 cm. It was exit of injury No.31.

On internal examination of thorax left pleurae was full of blood and left lung was punctured through and through. All remaining organs were healthy.

On abdominal examination walls, diaphragm stomach, small and large intestines were punctured and remaining organs were healthy.

In my opinion all injuries were ante- mortem and caused by firearm projectile. Injuries Nos.1, 2, 9 to 11 and 31 were sufficient enough to cause death separately as well as collectively whereas other injuries associated them in causing immediate death. These injuries by

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causing bleeding, shock, to vital organs damaged and sufficient to cause death in ordinary course of nature. Time between injuries and death was immediate whereas between death and postmortem examination it was 4 hours. After postmortem examination the stitched dead body, postmortem report, police papers and sealed phial containing two bullets were handed over to police, Carbon copies of postmortem report Ex.PD and sketch of injuries Ex.PD/1 and PD/2 are in my handwriting and bear my signatures. On the same day at about 06:30 pm I had also conducted the postmortem examination on the dead body of Hameedullah son of Fazal-e-Haq who was brought by police and identified by same witnesses.

It was dead body of middle aged person wearing Qameez Boski, Shalwar white, Banyan and Jercy dark brown. Eyes and mouth were close. Rigor mortis about to develop. Postmortem staining was present. On examination I had noted following injuries:-

1.An entrance wound of firearm projectile 1 x 3⁄4 cm on front of right side of chest close to nipple.

2.An exit wound of injury No.1 measuring 11⁄2 x 1 cm on right and axillary line 8th

ICS.

3.An entrance wound on inner side of right arm. It was containing of injury No.1.

4.An entrance wound 1 x 3⁄4 cm on right side of chest on mid axillary line.

5.An entrance wound 1 x 3⁄4 cm on right exile.

6.A large exit wound 12x4cm on back of left upper chest. It was an exit of injuries No.4 & 5.

7.An entrance wound on right side of lumber region (back measuring 1x 3⁄4 cm).

8.An exit wound 6x3 cm on left lower chest and upper abdomen. It was exit of injury No.7.

9.An entrance wound on mid axillary line in 8th ICS of left side measuring 1 x 1⁄2 cm on left side.

10.An exit wound 4x2 cm on back of upper right chest.

11.An entrance wound 1 x 3⁄4 cm on base of left thumb.

12.An exit wound of injury No.11 on outer side of left wrist measuring 5 x 2 cm.

On internal examination of skull two pieces of bullets were found under injury No.5.

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On thorax examination walls, ribs, cartilages, pleurae and both lungs were punctured. Remaining organs were healthy.

On abdominal examination walls, peritoneum, diaphragm, stomach, small and large intestines were punctured and remaining organs were healthy.

In my opinion all injuries were ante- mortem and caused by firearm projectiles. Injuries No.1, 4, 5, 7 & 9 were sufficient to cause death separately as well as collectively whereas other injuries associated them in causing death by causing bleeding, shock and death and sufficient enough to cause death in ordinary course of life. Time between injuries and death was immediate whereas between death and postmortem it was 51⁄2 hours”

7.On the other hand, statements of present appellants Mohammad Shabbir, Mohammad Ameer (since died), Mohammad Imran, Mohammad Munir and Mohammad Hussain were recorded under section 342 Cr.P.C who refuted the allegations so leveled against them and have not opted to appear as a witness under section 340(2) Cr.P.C and produced in defence documentary evidence Ex.DA to Ex.DD and in reply to question “why this case against you and why the PWs deposed against you?” the appellant Mohammad Shabbir replied as under:- “Naeemullah deceased was having blood shed enmity with Mastial family. Both parties were having criminal cases against each other. In the case of motive, it was compromised and on the basis of compromise all accused were acquitted as witnesses had resiled. Naeemullah deceased who was financially strong had purchased major portion of lahnd of the village whereas his brother Mazhar Anwaar complainant remained owner of land measuring only 5/6 acres. Mazhar Anwaar complainant demanded the hand of the daughter of Naeemullah deceased for his son so the property of Naeemullah deceased may also come under his control. However, this proposal was refused by Naeemulalh deceased. On this refusal Mazhar Anwaar complainant approached Mastial family. Both of them then made connivance with each other and then committed this crime at the same place where in 1984 Naeemullah deceased was attached by Mastial family and in this regard FIR No. 53 dated 18.4.1984 under sections 307/34 PPC at police station Mitha Tiwana was recorded on the statement of Naeemullah deceased. Immediately after this occurrence complainant party had demolished our houses and they also usurped the entire house hold articles lying there. More than 90%

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population of Hadali is Tiwana by caste or the tenants or supports of Tiwanas. Only Mastia family was the opponent of Tiwanas. As Mastial family had also joined hand with Mazhar Anwaar so no one came forward in support of us. A shelter was taken by referring the case of motive of 1995. I am innocent in this case”.

Likewise, in reply to question “why this case against you and why the PWs deposed against you?” the appellant Muhammad Imran replied as under:- “On the day of occurrence in the evening I, Mohammad Muneer and Mohammad Hussain my co-accused were sitting in the house of Mohammad Muneer situated in village Tangowali district Sargodha in connection with a marriage ceremony. Police came there and arrested us form that 0lace without any justification. I never remained as an accomplice of Mohammad Shabbir etc. so there was no question for me to associate them in the alleged occurrence. I do not know that why I have been involved any why witnesses had deposed against me. I am quite innocent”.

Likewise, in reply to question “why this case against you and why the PWs deposed against you?” the appellant Muhammad Munir replied as under:- “I am Kalyar by caste. As Mohammad Shabbir my co-accused is also Kalyar by caste, so on this reason I have been involved falsely in this case. I am innocent”.

Likewise, in reply to question “why this case against you and why the PWs deposed against you?” the appellant Muhammad Hussain replied as under:- “My version is the same as of my co-accused Mohammad Imran. I am innocent in this case”.

8.After conclusion of the trial, learned trial court convicted the present all appellants Mohammad Shabbir, Mohammad Ameer (since died), Mohammad Imran, Mohammad Munir and Mohammad Hussain with above stated sentences through judgment dated 29.03.2007. Hence this appeal.

9.Learned counsel for the appellants contended that:-

(i)the judgment of the trial court dated 29.03.2007 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 present appellants as there are many major discrepancies in the

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statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial 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 in presence of previous enmity conviction under offences of section 7 ATA is not maintainable;

(v)It is contended that collective firing is attributed to all the appellants and their co- accused Khuda Bakhsh (P.O);

(vi)lastly submitted that appeal may be accepted and the judgement of the trial court dated 29.03.2007 may kindly be set aside and appellants may be acquitted.

10.On the other hand, learned DPG 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.

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

12.At the very outset, it is observed that during the perusal of the record, it is revealed that on 15.6.2009 verbal direction by this court was issued to Supdt. District Jail, Sargodha through Deputy Registrar (Judicial) to verify the fact whether Muhammad Ameer appellant is alive or not and the Supdt. District Jail, Sargodha vide letter No. 9586 dated 15.6.2009 had informed Deputy Registrar (Judicial) of this Court that Muhammad Ameer appellant had died in DHQ Hospital Sargodha on 6.6.2009 and had also sent report in this regard through Fax. Report of Deputy Registrar (Judicial) is Mark-A, whereas copy of report of Supdt. District Jail, Sargodha dated 15.6.1999 is Mark-B.

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Learned counsel for the complainant today also has confirmed the fact of the death of Muhammad Ameer appellant during the pendency of this appeal on 6.6.2009.

13.In view of the above, the instant appeal to the extent of Muhammad Ameer appellant is abated and resultantly the instant CSR to his extent remained unanswered and the same has become defunct.

14.The detail of prosecution case as given by Mazhar Anwaar complainant/PW-20 real brother of Naeemulalh deceased has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same.

15.Firstly, we would like to take the case of Muhammad Hussain appellant. He is not nominated in the FIR.

16.PW-20 Mazhar Anwaar complainant had mentioned the name of accused in the FIR, Imran Abbas accused with parentage, caste and complete address instead of Muhammad Hussain present appellant as under:-

17.Further has given him role in the FIR as under:-

18.Mazhar Anwaar complainant PW-20 stated in his examination-in-chief that he had produced last worn clothes (blood stained) of Said Rasool injured PW-21 comprising of shirt P-57, Shalwar P-58 and Banyan P-59 before the Investigating Officer Sultan Ahmed Inspector PW-22 which were taken into possession vide recovery memo Ex.PCC attested by him. We have perused the police file and found that in this regard his supplementary was recorded under section 161 Cr.P.C by the I.O Sultan Ahmed Inspector PW-22 on 16.2.2005 who also stated this fact. On perusal of this supplementary statement of the complainant Mazhar Anwaar PW-20, it is revealed that he has not stated that name of Imran Abbas with parentage, cast and address was wrongly mentioned by him in FIR Ex.PBB and the correct name is Muhammad Hussain with

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different parentage, caste and address. Further the complainant Mazhar Anwaar PW-20 stated in his examination in chief in this regard as under: - “On 18.2.2005 I had also given my supplementary statement in regard to original name of Imran Abbas accused as Mohammad Hussain”.

19.We have perused second supplementary statement of Mazhar Anwaar dated 18.2.2005 in which he has replaced name of accused from Imran Abbas son of Ghulam Rasool caste Kharal resident of Chak No. 47 (North) Sargodha to Muhammad Hussain son of Ghulam Hussain cast Pawali resident of Machhar Khadi, Sargodha but did not state in his statement recorded under section 161 Cr.P.C on 18.2.2005 as well as in his statement before the trial court that from which source he came to know that Imran Abbas son of Ghulam Rasool cast Kharal resident of Chak No. 47, (North), Sargodha accused mentioned in the FIR was not an accused and Muhammad Hussain son of Ghulam Hussain cast Pawali resident of Machhar Khadi present appellant is an accused.

20.Statement of Said Rasool injured PW-21 was recorded on 7.3.2005 considering his medical condition due to the firearm injuries sustained by him during the occurrence with the permission of concerned medical officer in which he has given name of accused Muhammad Hussain son of Ghulam Rasool cast Pawali resident of Machhar Khadi, Sargodha but stated in his cross-examination that different persons from Hadali, the names of whom he does not know had told him that his actual name was Muhammad Hussain. Further, he mentioned the name of Muhammad Hussain in his statement before the trial court as under: - “Muhammad Hussain alias Imran Abbas”

Which was confronted to him with his statement recorded under section 161 Cr.P.C dated 7.3.2005 Ex.DC where only Muhammad Hussain is mentioned. Likewise, Mazhar Anwaar PW-20 stated in his examination in chief name of the accused Muhammad Hussain as under: -

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“Muhammad Hussain alias Imran Abbas”

Whereas, he did not state in the FIR the name of accused as Muhammad Hussain alias Imran Abbas and stated in the FIR the particulars of Imran Abbas accused as Imran Abbas son of Ghulam Rasool cast Kharal resident of Chak No. 47 (North) Sargodha and further stated in cross-examination that Muhammad Hussain was challaned in this case with different name, different parentage, different cast and different address and further stated in cross-examination that in his supplementary statement he had stated that at the time of the registration of the case instead of Muhammad Hussain son of Ghulam Hussain cast Pawali resident of village Machhar Khadi, he had given name of accused Imran Abbas son of Ghulam Rasool caste Kharal resident of Chak No. 47 (North), Sargodha.

21.We have also perused the application made by Sultan Ahmed Inspector I.O of this case PW-22 for obtaining physical remand of the accused and found that on 17.2.2005, Muhammad Shabbir, Muhammad Ameer (since died), Muhammad Munir, Muhammad Imran son of Atta Muhammad and Imran Abbas son of Ghulam Rasool were arrested and they were mentioned as accused and name of Muhammad Hussain son of Ghulam Hussain cast Pawali resident of Machhar Khadi Tehsil Sahiwal District Sargodha present appellant is not mentioned and this application was moved on 18.2.2005.

22.On perusal of the second application dated 21.2.2005 moved by PW-22, Sultan Ahmed Inspector/I.O of this case for physical remand of the accused. It is revealed that at this time name of accused Imran Abbas son of Ghulam Rasool caste Kharal resident of Chak No. 47 (North) District Sargodha was missing and instead of that name of Muhammad Hussain son of Ghulam Hussain caste Pawali resident of Machhar Khadi district Sargodha is mentioned without any explanation. Further, we have perused recovery memo Ex.PT according to which Imran Abbas

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accused was arrested on 17.2.2005 and during his personal search his NIC computerized copy P-31, his driving license P-32 and Photostat of NIC of his father P- 33 were recovered by the I.O Sultan Ahmed PW-22.

23.On perusal of the statement of Muhammad Hussain present appellant recorded under section 342 Cr.P.C on 29.3.2007, it is revealed that in question No.1- above stated articles i.e. NIC (computerized) copy etc. and Photostat of NIC of his father P-33 put to him and in reply he stated that these were the result of fabrication and further in question No.11 it was put to him whether NIC, driving license P-32 belong to you or not, in answer, he stated that these are not belonging to him and were fabricated.

24.It is not understandable on one side complainant Mazhar Anwaar PW-20 himself replaced the name of accused in his second supplementary statement dated 18.2.2005 from Imran Abbas son of Ghulam Rasool caste Kharal resident of Chak No. 47 (North) Sargodha to Muhammad Hussain son of Ghulam Hussain caste Pawali resident of village Machhar Khadi and also this PW Mazhar Anwaar complainant and Said Rasool PW- 21 stated in their statements before the trial court that name of the accused was Muhammad Hussain son of Ghulam Hussain caste Pawali resident of village Machhar Khadi and not Imran Abbas son of Ghulam Rasool caste Kharal resident of Chak No. 47 (North), Sargodha but on the other hand prosecution itself had put computerized copy of NIC P-31 and driving license P-32 with the name of Imran Abbas son of Ghulam Rasool to Muhammad Hussain in his statement recorded under section 342 Cr.P.C.

25.Admittedly, no identification parade was held for the identification of the present appellant Muhammad Hussain. Identification in the trial court after long time by the witnesses is not acceptable. Prosecution is not certain about the identity of Muhammad Hussain appellant, benefit of which goes to him.

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26.Motive of the occurrence mentioned by the complainant Mazhar Anwaar PW-20 in his statement as under: - “Motive behind the occurrence was that in 1995 Ahmad Khan father of Shabbir, Ameer accused and Khuda Bakhsh (PO) was murdered in reference to which a case was registered against Naeemullah (deceased), Mansabdar (PW) and one Khayat Din. During investigation of that case all the three were found innocent by police whereas Sohbat Khan and others were challaned. Due to this reason all accused committed this crime”.

27.In view of the above, motive is not attributed to Muhammad Hussain present appellant rather the same is attributed to Shabbir appellant, Ameer (since died) and Khuda Bakhsh (P.O).

28.We entertain serious doubt in our mind regarding participation of Muhammad Hussain present appellant in the instant occurrence who was not nominated in the

FIR.

29.In view of the above, it is concluded that case of the prosecution is not free from doubt and for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled for the same not as a matter of grace and concession but as a matter of right. Reliance is placed on case titled Muhammad Akram V. The State (2009 SCMR 230) in which Hon’ble Supreme Court of Pakistan has observed at page 235 as under: - “the nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right”.

30.We also perused recovery memo Ex.PM regarding recovery of 4 empties of 12-bore P-11/1-4 from the place of Imran Abbas where name of Muhammad Hussain

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present appellant is not mentioned. Further, Muhammad Shakir Ullah PW-6 stated in cross- examination that in recovery memo Ex.PM name of Muhammad Hussain accused is not recorded whereas Imran Abbas has recorded. In this way, recovery is also doubtful and is disbelieved, even otherwise, recovery of 12-bore repeater P-48 with positive report of FSL Ex.PZZ is a corroboratory piece of evidence and it cannot be considered a conclusive circumstance to base conviction thereon, if the prosecution case against him, otherwise, stands disproved.

31.For the foregoing reasons, the instant appeal to the extent of appellant Muhammad Hussain is accepted and his convictions and sentences awarded by the learned trial court through impugned judgment dated 29.03.2007 are set-aside and he is ordered to be acquitted of the charge in case FIR No. 72 dated 16.2.2005 under sections 302/324, 148/149/395 PPC read with section 7 ATA 1997 police station Jauharabad District Khushab. Appellant Muhammad Hussain is directed to be released forthwith if not required in any other case.

32.Now, we would like to see the applicability of section 7(a) & (c) of ATA 1997 in the instant case.

33.Mazhar Anwaar complainant PW-10 stated in his FIR Ex.PBB regarding motive of the occurrence as under:-

34.Likewise, above stated motive was put to all the appellant in their statements under section 342 Cr.P.C in question No.4 which is hereby reproduced as under: - “it is in evidence that motive behind the occurrence was that in 1995 Ahmad Khan father of you Mohammad Shabbir, Mohammad Ameer and Khuda Bakhsh (PO) was murdered in reference to which a case was registered against Naeemullah (deceased), Mansabdar (PW) and one Khayat Din. During investigation of that case all rthese three were found innocent by police whereas Sohbat Khan and others were challend. Dur to this reason you and you co-

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accused committed this crime. What do you say about it?

Ans. It is in-correct”.

35.Said Rasool PW-21 (eye witness) Kardar/Manager of Naeemullah deceased stated in his examination in chief as under: - “at the time of escape toward Adda accused Shabbir had removed from Jeep the Kalashnikov, its license and bag belonging to Naeemullah deceased”

36.This show that there was previous enmity between the parties and Naeemullah deceased used to keep the Kalashnikov for his security.

37.Mazhar Anwaar PW-20 and Said Rasool PW-21 (eye witnesses) stated that on 16.2.2005 at about 01:00 p.m when he along-with Gul Hayat Bali and Gul Hayat Kundan (given up PWs) while moving towards Lari Adda reached near the house of Mehboob Mastial, Jeep No. B-4303/NWFP came there in which Naeemullah deceased his brother Hafeezullah deceased driver of the Jeep of Naeemullah deceased and Said Rasool injured PW-21 (Kardar/Manager of Kaleemullah deceased) were sitting and they were moving from Adda. Hafeezullah deceased was driving the Jeep whereas Naeemullah deceased was sitting on front side. Said Rasool injured PW-21 was sitting on the back seat. When Jeep arrived near the shop of Muhammad Iqbal Lohar it became slow due to speed breaker there and at that occasion, from the shop of Muhammad Iqbal Lohar appellants (Muhammad Shabbir, Muhammad Ameer (since died), Muhammad Imran and Muhammad Munir with his co-accused Khuda Bakhsh (PO) emerged there. Muhammad Iqbal admittedly did not appear to support this version of the prosecution and he was not made an accused in this case by the prosecution. Non- appearance of above stated Muhammad Iqbal as a prosecution witness or non- making him as an accused by the prosecution shows that accused were not come at the place of occurrence from the shop of Muhammad Iqbal Lohar rather both the parties when faced each other on the place of occurrence which is a passage, present occurrence took place due to the motive stated

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above and it was held that intention of the accused was not at all to create sense of fear or insecurity or to destabilize public at large or to advance any sectarian cause and design or purpose of offence as contemplated by provisions of section 6 of Anti-Terrorism Act 1997 was not attracted and instant occurrence was took place due to previous enmity and private vendetta. 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 534 and 535 as under:- “Though learned counsel for the appellants has not specifically challenged convictions of the appellants under section 7 of the Anti-Terrorism Act, 1997 and occurrence in the case allegedly took place in Samoote Bazaar, opposite UBL Branch, wherein three persons were done to death and another sustained grievous injuries yet, in the absence of any stipulation in the FIR to the effect that the incident had struck terror or panic in the public and in the absence of any evidence to the effect that the incident had created sense of fear or insecurity in the public or any section of public or community or any sect, it could not have been contended that section 7 of the Anti-Terrorism Act, 1997 was attracted in the instant case. It would be pertinent to mention here that in order to bring a particular act within the ambit of section 7, it is to be seen as to whether the said act had created sense of fear or insecurity in public or in any section of public or community or any sect, or the occurrence was simply the result of previous enmity or personal vendetta.

Since in the instant case it has been established that motive behind the incident was previously strained relations between the parties and an iota of evidence has not been brought on record to show that object was not to kill the deceased but also to strike terror or create sense of fear or insecurity in the general public or community or any sect therefore, therefore, in our view section 7 of the Anti-Terrorism Act was not attracted. In the case of Tariq Mahmood v. The State 2008 S C M R 1631, the occurrence had allegedly taken place in a Bazaar which was heavily populated and it was claimed that due to firing there was stamped in the traversers yet, since it was found that there was no evidence that the act of respondents/accused struck terror amongst the masses and the place of occurrence was not a busy populated area rather it took place on a service road, therefore, the provisions of Anti-Terrorism Act were not attracted. In the case of Muhammad Idrees and others v. The State 2008 S C M R 1544, occurrence took place on the bank of canal. It was not established on record that the act done by the accused persons had created sense of fear or insecurity in public, therefore, it was held that section 7 of the Anti- Terrorism Act was not attracted. In the case of Mohabbat Ali v. the State 2007 S C M R 142, the alleged incident took place because of previous enmity and private vendetta inside the fields of sugarcane and banana, about 14/15 miles away

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from main road, it was held that intention of the accused was not at all to create sense of fear or insecurity or to destabilize public at large or to advance any sectarian cause and design or purpose of offence as contemplated by provisions of section 6 of Anti-Terrorism Act, 1997 was not attracted. In the case of Fazal Dad v. Colk. (Retd.) Ghulam Muhammad Malik PLD 2007 SC 571, since nothing was brought on record to show that the occurrence created terror, panic or sense of insecurity among people by securing possession land in question by the accused persons, therefore, the case did not qualify to be a terrorist act within the contemplation of section 6 of the Anti-Terrorism Act or its schedule. Convictions and sentences recorded against the appellants under section 7 of the Anti-Terrorism Act, are, therefore, set aside.”

37.In view of the above, convictions and sentences recorded against the appellants under section 7(a) & 7(c) of ATA Act are therefore set-aside.

38.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 Mazhar Anwaar complainant PW-20 and Said Rasool injured PW-21 (eye witnesses) could not be said to have been shattered due to the above stated acquittal of Muhammad Hussain appellant. Reliance is placed on case 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 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”.

39.Mazhar Anwaar complainant PW-20 is real brother of Naeemullah deceased, Hafeez Ullah deceased was driver of Naeemullah deceased whereas Said Rasool injured PW-21 is Kardar/manager of Naeemullah deceased.

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40.Mazhar Anwaar PW-20 stated that on 16.2.2005 at 01:00 pm he along with Gul Hayat Bali and Gul Hayat Kandan (given up PW) while moving towards Lari Ada reached near the house of Mehboob Mastial, there, came Jeep No. B-4303/NWFP in which Naeemullah, Hafeezullah (both deceased) and Said Rasool injured PW-21 were sitting and when Jeep arrived near the shop of Muhammad Iqbal Lohar it became slow due to speed breaker there meanwhile, appellants Shabbir, Muneer, Imran, Ameer (since died) and their co-accused Khuda Bakhsh (PO) emerged there from the shop of Muhammad Iqbal and committed instant occurrence and he saw the occurrence.

41.Said Rasool injured PW-21 received firearm injuries in the occurrence while sitting in the Jeep and saw the occurrence.

42.The presence of above mentioned eye witnesses at the spot at the relevant time therefore cannot be considered as unnatural or improbable. Both the above mentioned 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 present appellants except Muhammad Hussain.

43.The medical evidence of the prosecution was furnished by Doctor Ajmal Nadeem Khan Niazi PW-1 detail of which is mentioned in para No.6 of this judgment according to his opinion all the injuries were ante-mortem caused by firearm weapons and were sufficient to cause the death of Naeemullah, Hafeezullah and Hameedullah deceased in ordinary course of nature. Probable time between injuries and death of Naeemullah deceased was immediate whereas between death and postmortem examination, it was three hours, probable time between injuries and death of Hafeezullah deceased was immediate whereas between death and postmortem examination was four hours. Likewise, probable time between injury and death of Hameedullah deceased was immediate

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whereas between death and postmortem examination was 5-1/2 hours which is in line with the time of occurrence i.e. 01:00 pm given by the prosecution.

44.Further, Dr. Ajmal Nadeem Khan Niazi PW-1 observed multiple firearm entry wounds on the person of Said Rasool Khan injured PW-21, detail of which is mentioned in para No.6 of this judgment.

45.We are, therefore, of the view that medical evidence furnished by Dr. Ajmal Nadeem Khan Niazi PW-1 has fully supported the above mentioned ocular account furnished by Mazhar Anwaar complainant PW- 20 and Said Rasool Khan PW-21.

46.Motive of the occurrence given by the complainant Mazhar Anwaar PW-20 in the FIR Ex.PBB was that in 1995 Ahmad Khan father of Muhammad Shabbir, Ameer (since died) appellants and their co-accused Khuda Bakhsh (PO) was murdered and in reference to that a case was registered against Naeemullah deceased, Mansabdar PW and one Khayal Din. During investigation of that case these three were found innocent by the police whereas Sohbat Khan and others were challaned. Appellants Mohammad Shabbir, Mohammad Ameer (since died), Mohammad Imran and Mohammad Munir could not rebut that Ahmad Khan had murdered and in this regard case was not registered against Naeem Ullah deceased in which he was found innocent. So motive set-up by the prosecution is believed.

47.Muhammad Shakir Ullah PW-6 stated that on 16.2.2005 he along with Muhammad Habib (given up PW) joined the investigation of this case at the place of occurrence and in his presence during the spot inspection Sultan Ahmed Inspector/I.O of this case PW- 22 secured empties of G-III P-7/1-10 from the place of presence of Muhammad Shabbir present appellant which was made into sealed parcel and secured vide recovery memo Ex.PI. Police also secured 10 empties of Kalashnikov P-10 (1-10) from place of presence of Muhammad Muneer by way of sealed parcel through recovery memo Ex.PJ. Police also recovered 13 empties

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of Kalashnikov P-9/1-13 from place of presence of Khuda Bakhsh (PO) by way of sealed parcel through recovery memo Ex.PK. Police also secured 09 empties of Kalashnikov P-10/1-9 from the place of presence of Imran Qureshi present appellant by way of sealed parcel through recovery memo Ex.PL. He further stated that above stated I.O also took into possession four empties of 12 bore P-11/1-4 from the place of presence of Imran Abbas by way of sealed parcel through recovery memo Ex.PM. I.O also secured 12 empties of Kalashnikov P-12/1-12 from the place of presence of Muhammad Ameer (since died). This witness Muhammad Shakirullah stated in cross-examination that he was not present at the scene of crime and he was also told by Mazhar Anwaar complainant PW-20 in this regard.

48.The evidence of this witness to the extent of pointing out of the places of the accused before the I.O is hearsay and is inadmissible evidence. Mazhar Anwaar complainant PW-20 himself appeared before the trial court and did not state that he had told Muhammad Shakirullah PW-6 regarding places of all the accused to Mohammad Shakirullah PW-6.

49.Muhammad Shakirullah PW-6 further stated in cross-examination that the moment, he arrived at the place of occurrence, the police had started to collect the empties from their respective positions.

50.In view of the above, recovery of the empties from the places after pointing the places of the accused is doubtful and is discarded.

51.Muhammad Khalil H.C PW-14 stated that on 26.2.2005 Muhammad Munir appellant during interrogation disclosed and led to the recovery of Kalashnikov P-40 with three Magazine P-41/1-3, Magazines Bag P-42 and 20 Bullets P-43/1-20 lying at an untended brick-kiln of one Shabbir Shah situated in Rangpur Kadhe. Kalashnikov was made into sealed parcel and took into possession through recovery memo Ex.PW attested by him. Likewise, Liaqat Hayat constable PW-15 stated that on 26.2.2005 Muhammad

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Shabbir present appellant disclosed and led to the recovery of Kalashnikov P-44, three Magazine P-45/1-3, license P-46 and 50 bullets P-47/1-50 lying at a unattended brick-kiln of one Shabbir Shah in the area of Rangpur Kadhi. Kalashnikov was made into sealed parcel and was taken into possession through recovery memo Ex.PX attested by him.

52.PW-13 Atta Muhammad constable 182 stated that on 26.2.2005 he joined the investigation of this case and in his presence Muhammad Shabbir during interrogation disclosed and led to the recovery of Kalashnikov P-36, three magazine P-37/1-3, 20 bullets P-38/1-20 and a Bag of Magazine P-39 lying at an unattended brick-kiln (Bhatta) situated in the area of Rangpur Kadhi. Kalashnikov was made into sealed parcel and was taken into possession through recovery memo Ex.PV attested by him.

53.Ghulam Jaffar PW-18 stated that on 26.5.2005 he joined the investigation of this case and in his presence Muhammad Shabbir appellant disclosed and led to the recovery of Rifle G-III P-54, 2 Magazine P- 55/1-2 and 20 bullets P-56/1-20 lying at an unattended brick-kiln belonging of Shabbir Shah in the area of Rangpur Kadhi. Rifle was made into sealed parcel and was taken into possession through recovery memo Ex.PAA attested by him.

54.We have perused the recovery memo of Kalashnikov Ex.PV regarding the statement of Atta Muhammad PW-13 but could not trace the same whereas on perusal of recovery memo Ex.PAA, it is revealed that recovery was effected on pointing out of Muhammad Shabbir present appellant on 26.2.2005 and all the above stated recoveries were made from unattended brick-kiln which was not in exclusive possession of Muhammad Shabbir and Muhammad Munir present appellants and that place of recovery was accessible to everyone, so, recoveries are doubtful and evidence of recovery is disbelieved.

55.Mukhtar Haider ASI PW-17 stated that on 23.2.2005 Imran present appellant disclosed and led to

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the recovery of Kalashnikov P-50, three Magazine P-51, 60 bullets P-52/1-60 and Magazine P-53 from the room of his house situated in Tiba Qaim Din. Kalashnikov was made into sealed parcel and was taken into possession through recovery memo Ex.PZ attested by him.

56.Muhammad Bakhsh son of Muhammad Ameer was private witness of this recovery as mentioned in recovery memo Ex.PZ who has not been produced by the prosecution and has been given up by the prosecution being unnecessary. Evidence of this witness was withheld for the reasons best known to the prosecution. So, presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order 1984 can fairly be drawn that had this witness of recovery Muhammad Bakhsh been examined in the court he would have been deposed against the prosecution. Reliance is placed on case Riaz Ahmed Vs. State (PLJ 2010 SC 877) in which Hon’ble Supreme Court of Pakistan has observed at page 879 as under: - “One of the eye witnesses Manzoor Hussain was available in the Court on 29.7.2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under illustration (g) of Article 129 of Qanum-e-Shahadat Order, 1984 can fairly be drawn that had the eye witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution”

57.Further no other private person from the locality of the place of recovery has been joined in the recovery proceedings despite the fact that the place of recovery/house of Muhammad Imran present appellant is situated in the Abadi of the village depicted from the rough site plan Ex.PZ/1 of the place of recovery. So, this recovery is doubtful and the same is hereby disbelieved.

58.We have disbelieved the prosecution evidence qua the above stated recoveries but if the prosecution evidence qua the recoveries is excluded from

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consideration, even then, there is sufficient incriminating evidence available on record to prove the prosecution case against the appellants Mohammad Imran, Mohammad Shabbir and Muhammad Munir which has been discussed earlier in the preceding paras of this judgment.

59.Adverting to defence plea of Muhammad Shabbir appellant/convicts, he 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?” the appellant Mohammad Shabbir replied as under:- “Naeemullah deceased was having blood shed enmity with Mastial family. Both parties were having criminal cases against each other. In the case of motive, it was compromised and on the basis of compromise all accused were acquitted as witnesses had resiled. Naeemullah deceased who was financially strong had purchased major portion of land of the village whereas his brother Mazhar Anwaar complainant remained owner of land measuring only 5/6 acres. Mazhar Anwaar complainant demanded the hand of the daughter of Naeemullah deceased for his son so the property of Naeemullah deceased may also come under his control. However, this proposal was refused by Naeemulalh deceased. On this refusal Mazhar Anwaar complainant approached Mastial family. Both of them then made connivance with each other and then committed this crime at the same place where in 1984 Naeemullah deceased was attached by Mastial family and in this regard FIR No. 53 dated 18.4.1984 under sections 307/34 PPC at police station Mitha Tiwana was recorded on the statement of Naeemullah deceased. Immediately after this occurrence complainant party had demolished our houses and they also usurped the entire house hold articles lying there. More than 90% population of Hadali is Tiwana by caste or the tenants or supports of Tiwanas. Only Mastia family was the opponent of Tiwanas. As Mastial family had also joined hand with Mazhar Anwaar so no one came forward in support of us. A shelter was taken by referring the case of motive of 1995. I am innocent in this case”.

But he did not appear under section 340 (2) Cr.P.C and produced in defence documentary evidence Ex.DD to support his plea.

60.Likewise, Muhammad Imran 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:- “On the day of occurrence in the evening I, Mohammad Muneer and Mohammad Hussain my co-accused were sitting in the house of Mohammad Muneer situated in village Tangowali district Sargodha in connection with a marriage ceremony.

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Police came there and arrested us form that 0lace without any justification. I never remained as an accomplice of Mohammad Shabbir etc. so there was no question for me to associate them in the alleged occurrence. I do not know that why I have been involved any why witnesses had deposed against me. I am quite innocent”.

But he did not appear under section 340 (2) Cr.PC and also did not produce any defence evidence to establish his defence plea and his defence plea is nothing except denial.

62.Muhammad Munir 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:- “I am Kalyar by caste. As Mohammad Shabbir my co-accused is also Kalyar by caste, so on this reason I have been involved falsely in this case. I am innocent”.

But he did not appear under section 340 (2) Cr.PC and also did not produce any defence to establish his defence plea and his defence plea is nothing except denial.

63.Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of appellants Mohammad Shabbir, Mohammad Imran and Mohammad Munir. Firstly, we have disbelieved recoveries of Kalashnikov and G-III Rifle detail of which is mentioned in preceding paras of this judgment Secondly, Mazhar Anwaar complainant and Said Rasool PWs (eye witnesses) stated that all the accused made indiscriminate firing upon Hafeezullah and Naeemullah deceased and injured Said Rasool and further stated that Khuda Bakhsh (P.O) Muhammad Shabbir present appellant and Muhammad Ameer (since died) also made firing upon Hameedullah deceased and it is not ascertainable that which accused made fatal shot and further during indiscriminate firing made by different accused, no one can give the detail of the shots made by the accused Mohammad Shabbir, Mohammad Imran and Mohammad Munir and seat of injuries. In our considered view, injuries caused by the accused persons collectively culminated in death of the deceased persons. Reliance is placed on case

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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. Upshot of the above discussion is that Criminal Appeal No. 103 of 2003 is partly allowed. Convictions and sentences recorded against appellants Muhammad Yaqoob and Abdul Qayyum under section 7 of the Anti-Terrorism Act, 1997 are set aside and they are acquitted of the charges thereunder. However, rest of the convictions and sentences recorded against them under sections 302(b)/34, 324/34 and 337-A(i) PPC by the learned trial court are maintained and the sentences recorded thereunder shall run consecutively as ordered by the learned trial court. Benefit of section 382-B Cr.P.C is however, extended to the appellants. Sequel to above, Criminal appeal No. 104 of 2003 filed by the complainant for enhancement of sentences and against acquittal is dismissed”.

64.Further reliance is placed on Shera Masih and another v. The State (PLD 2002 SC 643) in which Hon’ble Supreme Court of Pakistan has observed at page 654 as under: - “From the scrutiny of evidence, we are convinced that no exception can be taken to the findings of guilt of the appellants arrived at the trial Court and upheld by the High Court but we find similarity in the case of Shera Masih and Arshad Masih in the matter of sentence which escaped the notice of the trial Court and also of the High Court. The injury attributed to Shera Masih was not individually found fatal to the life of deceased by the doctor who conducted postmortem upon the dead body. The

Criminal Appeal No. 534 of 2007

Appeal No. 393-2010

prosecution case is that all the three accused namely Akbar and Asghar Masih (acquitted accused) and Shera Masih appellant caused injuries to the deceased and according to the medical evidence death was cause of collective result of injuries Nos.2 and 3 but Asghar Masih was acquitted and his acquittal was not challenged either by the State or the complainant. Shera Masih in the light of the role assigned to him in the occurrence would stand at par to Asghar Masih and thus would not be alone responsible for causing death of Mansha Masih, therefore, the imposition of extreme penalty of death upon him in the given circumstances would not be proper and justified. We having examined the evidence in detail, have found that no exception can be taken to the conclusion of the guilt of appellants drawn by the learned Judges in the High Court except that Shera appellant would also be entitled to lesser penalty. For the foregoing reasons, we hold that conviction awarded to the appellants under section 302(a)(b)/34, 324/34 and 337-F(iii)/34, PPC was not interferable and we while maintaining the same reduce the sentence of Shera Masih, appellant No.1, from death to life imprisonment with further direction that he will also be entitled to the benefit of section 382-B, of Cr.PC. The remaining sentences of both the appellants, which were upheld by the High Court, are maintained with no alteration”.

65.Further Muhammad Shabbir, Munir and Imran appellants were arrested on 17.2.2005 and since then they are behind the bars and have faced the agony of the criminal proceedings. Therefore, in our mind death sentence of Mohammad Imran, Mohammad Shabbir and Mohammad Munir awarded by the trial court is quite harsh. Due to the above mentioned reasons, the convictions of Mohammad Imran, Mohammad Shabbir and Mohammad Munir under section 302(b) PPC awarded by the trial court on three counts each is maintained but their sentences are altered from death each to imprisonment for life each. The compensation awarded by the trial court and sentence in default thereof is maintained. The benefit of section 382-B Cr.P.C is also given to the appellants. Convictions and sentences under section 148/149, 324, 337-A(i), (ii), 337-F(i) (iii), (vi) PPC are maintained. All the sentences shall run concurrently. Consequently, with the above said modification in the sentences of Mohammad Imran, Mohammad Shabbir and Mohammad Munir present appellants, Criminal Appeal No. 534 of 2007 filed by the present appellants Muhammad Shabbir, Munir and Imran is hereby dismissed. C.S.R No.34-T of 2007 is

Criminal Appeal No. 534 of 2007

Appeal No. 393-2010

answered in NEGATIVE and death sentences of Mohammad Imran, Muhammad Shabbir and Mohammad Munir present appellants on all counts are

NOT CONFIRMED.

66.Before parting from this judgment, it is observed that Khuda Bakhsh accused is (P.O) whenever he was arrested his case shall be decided on its own merits without being influenced form this judgment.

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

Approved for reporting

Irfan