Lahore High Court
Shabbir Ahmad etc. vs The State etc.
- Case
- 529-17
- Type
- Crl. Appeal-Against Conviction-ATA
- Judge
- Mr. Justice Sadiq Mahmud Khurram
- Length
- 67 pages
Full judgment
Official copyStereo. HC JD A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR.
JUDICIAL DEPARTMENT
Capital Sentence Reference No.4 of 2017 (The State Vs. 1. Shabbir Ahmad alias Shabru alias Asim 2. Muhammad Shakeel alias Abdullah 3.Sultan Shahab ud Din 4.Muhammad Usman)
Criminal Appeal No. 529-ATA of 2017 (Shabbir Ahmad alias Shabru alias Asim and another Vs. The State and another.)
Criminal Appeal No. 524-ATA of 2017 (Sultan Shahab ud Din Vs. The State and another.)
Criminal Appeal No. 526-ATA of 2017 (Muhammad Usman Vs. The State and another.)
Date of hearing: 20.12.2021.
Appellants by: Mr. Muhammad Mushtaq Warraich, Advocate. (for the appellants namely Shabbir Ahmad alias Shabru alias Asim and Muhammad Shakeel alias Abdullah in Criminal Appeal No. 529-ATA of 2017).
Mr. Muhammad Sharif Bhatti, Advocate. (for the appellant namely Sultan Shahab ud Din in Criminal Appeal 524-ATA of 2017).
Mr. Muhammad Naeem Bhatti, Advocate ( for the appellant namely Muhammad Usman in Criminal Appeal 526-J-ATA of 2017).
State by: Mr. Asghar Ali Gill, Deputy Prosecutor General. Complainant by: Syed Asim Ali Bukhari, Advocate.
SADIQ MAHMUD KHURRAM, J. – Shabbir Ahmad alias
Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan (convicts) were tried alongwith Master Muhammad Nawaz ,who died in custody on 06.08.2017, by the learned Judge, Anti-Terrorism Court ,Bahawalpur Division,Camp at New Central Jail Bahawalpur, in case FIR No. 22 of 2012 dated 15.01.2012 registered at Police Station City Khanpur District Rahim Yar Khan in respect of offences under sections 302, 324, 337 F (v) ,337-A(i), 337-F(i), 337-F(ii),
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
337-F(iii), 337-F(iv), 148 and 149 PPC. , under sections 7 (a) ,7(c) and 7(ff) of the Anti-Terrorism Act, 1997 and under section 3 of the Explosive Substances Act, 1908 for detonating a bomb resulting in the deaths of as many as sixteen persons (Ghulam Abbas, Abid Hussain, Zahid Abbas, Asad Abbas, Syed Mureed Hussain, Akhtar Hussain, Mohammad Ajmal alias Iqbal, Khizer Abbas, Amjid Hussain, Fahad Abbas, Atif, Adnan Abbas, Jam Qabil , Aun Raza,Fida Hussain and Ali Hassan) and injuries to twenty four persons (Riaz, Hussain Bakhsh, Farhan Abbas (PW-13), Mobeen, Umar Din, Kamran Hussain, Mst.Ruqia Bibi, Waheed-ul-Hassan, Akhtar Hussain, Umar Ejaz, Abida Hussain, Muzammil Hussain, Pervaiz Hussain (PW-7), Moti-ul Hassan (PW-9), Mohammad Jameel, Majid Hussain, Zakir Hussain, Mehboob Aalam, Jafar Hussain (PW-11) , Ghulam Sarwar, Nadir Hussain (PW-10) , Shehzad, Haider Ali and Iqbal Hussain). The learned trial court vide judgment dated 28.10.2017 convicted Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan (convicts) and sentenced them as under:
Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad:
i)Death on sixteen counts under sections 302(b)/149 PPC as Tazir for committing Qatl-i-Amd of Ghulam Abbas, Abid Hussain, Zahid Abbas, Asad Abbas, Syed Mureed Hussain, Akhtar Hussain, Mohammad Ajmal alias Iqbal, Khizer Abbas, Amjid Hussain, Fahad Abbas, Atif, Adnan Abbas, Jam Qabil, Aun Raza,Fida Hussain and Ali Hassan (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
Capital Sentence Reference No.4 of 2017. Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
ii)Death on sixteen counts under section sections 7 (a) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.100,000/- on sixteen counts and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
iii)Death on sixteen counts under sections 3 of the Explosive Substances Act, 1908/149 PPC.
The convict was ordered to be hanged by his neck till dead;
iv)Rigorous Imprisonment for three years under sections
148/149 PPC
v)Rigorous Imprisonment for ten years on twenty four counts under sections 324/149 PPC and directed to pay fine of Rs.50,000/- on each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vi)Rigorous Imprisonment for ten years on twenty four counts under sections 7 (c) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.50,000/- on each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vii)Imprisonment for life under sections 7 (ff) of the Anti- Terrorism Act, 1997;
viii)Rigorous Imprisonment for one year under sections 337 A(i) and 337-F(i)/149 PPC for the injuries caused to Waheed ul Hassan and directed to pay Daman of Rs.10,000/- to the injured Waheed ul Hassan and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
ix)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Riaz and directed to pay Daman of Rs.10,000/- to the injured Riaz and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
x)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Hussain Bakhsh and directed to pay Daman of Rs.20,000/- to the injured Hussain Bakhsh and in case of default thereof, the
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
convict was further directed to remain in jail till the payment of the Daman amount;
xi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(ii)/149 PPC for the injuries caused to Farhan Hussain and directed to pay Daman of Rs. 30,000/- to the injured Farhan Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mobeen and directed to pay Daman of Rs. 30,000/- to the injured Mobeen and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii) and 337-F(v) /149 PPC for the injuries caused to Umar Din and directed to pay Daman of Rs. 50,000/- to the injured Umar Din and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Kamran Hussain and directed to pay Daman of Rs. 10,000/- to the injured Kamran Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xv)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mst. Ruquia and directed to pay Daman of Rs. 10,000/- to the injured Mst. Ruquia and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xvi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(v) and 337-A(i)/149 PPC for the injuries caused to Akhtar Hussain and directed to pay Daman of Rs. 50,000/- to the injured Akhtar Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xvii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Umar Ijaz and directed to pay Daman of Rs. 10,000/- to the injured Umar Ijaz and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
xviii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii)/149 PPC for the injuries caused to Abid Hussain (PW-12) and directed to pay Daman of Rs. 50,000/- to the injured Abid Hussain (PW-12) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muzammil and directed to pay Daman of Rs. 20,000/- to the injured Muzammil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Pervaiz Hussain (PW-7) and directed to pay Daman of Rs. 50,000/- to the injured Pervaiz Hussain (PW-7) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Moti ul Hassan (PW-9) and directed to pay Daman of Rs. 30,000/- to the injured Moti ul Hassan (PW-9) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxii)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muhammad Jamil and directed to pay Daman of Rs. 30,000/- to the injured Muhammad Jamil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxiii)Rigorous Imprisonment for three years under sections 337-F(iii),337-F(iv)/149 PPC for the injuries caused to Majid Hussain and directed to pay Daman of Rs. 50,000/- to the injured Majid Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxiv)Rigorous Imprisonment for one year under sections 337- F(iii) and 337-A(i)/149 PPC for the injuries caused to Zakir Hussain and directed to pay Daman of Rs. 30,000/- to the injured Zakir Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Jafar Hussain
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
(PW-11) and directed to pay Daman of Rs. 10,000/- to the injured Jafar Hussain (PW-11) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Ghulam Sarwar and directed to pay Daman of Rs. 20,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvii)Rigorous Imprisonment for one year under sections 337- F(v) and 337-F(i)/149 PPC for the injuries caused to Nadir Hussain (PW-10) and directed to pay Daman of Rs. 50,000/- to the injured Nadir Hussain (PW-10) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxviii)Rigorous Imprisonment for three years under sections 337-F(iii) /149 PPC for the injuries caused to Shahzad and directed to pay Daman of Rs. 30,000/- to the injured Shahzad and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Haider Ali and directed to pay Daman of Rs. 30,000/- to the injured Haider Ali and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Iqbal Hussain and directed to pay Daman of Rs. 50,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxxi)Forfeiture of all moveable and immoveable properties of the convict under section 5-A of the Explosive Substances Act, 1908.
Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh:
i)Death on sixteen counts under sections 302(b)/149 PPC as Tazir for committing Qatl-i-Amd of Ghulam Abbas, Abid Hussain, Zahid Abbas, Asad Abbas, Syed Mureed Hussain, Akhtar Hussain, Mohammad Ajmal alias Iqbal, Khizer Abbas, Amjid Hussain, Fahad Abbas, Atif, Adnan
Capital Sentence Reference No.4 of 2017. Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
Abbas, Jam Qabil, Aun Raza, Fida Hussain and Ali Hassan (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
ii)Death on sixteen counts under section sections 7 (a) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.100,000/- on sixteen counts and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
iii)Death on sixteen counts under sections 3 of the Explosive Substances Act, 1908/149 PPC.
The convict was ordered to be hanged by his neck till dead;
iv)Rigorous Imprisonment for three years under sections
148/149 PPC
v)Rigorous Imprisonment for ten years on twenty four counts under sections 324/149 PPC and directed to pay fine of Rs.50,000/- on each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vi)Rigorous Imprisonment for ten years on twenty four counts under sections 7 (c) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.50,000/- on each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vii)Imprisonment for life under sections 7 (ff) of the Anti- Terrorism Act, 1997;
viii)Rigorous Imprisonment for one year under sections 337 A(i) and 337-F(i)/149 PPC for the injuries caused to Waheed ul Hassan and directed to pay Daman of Rs.10,000/- to the injured Waheed ul Hassan and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
ix)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Riaz and directed to pay Daman of Rs.10,000/- to the injured Riaz and in
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
x)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Hussain Bakhsh and directed to pay Daman of Rs.20,000/- to the injured Hussain Bakhsh and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(ii)/149 PPC for the injuries caused to Farhan Hussain and directed to pay Daman of Rs. 30,000/- to the injured Farhan Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mobeen and directed to pay Daman of Rs. 30,000/- to the injured Mobeen and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii) and 337-F(v) /149 PPC for the injuries caused to Umar Din and directed to pay Daman of Rs. 50,000/- to the injured Umar Din and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Kamran Hussain and directed to pay Daman of Rs. 10,000/- to the injured Kamran Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xv)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mst. Ruquia and directed to pay Daman of Rs. 10,000/- to the injured Mst. Ruquia and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xvi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(v) and 337-A(i)/149 PPC for the injuries caused to Akhtar Hussain and directed to pay Daman of Rs. 50,000/- to the injured Akhtar Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
xvii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Umar Ijaz and directed to pay Daman of Rs. 10,000/- to the injured Umar Ijaz and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xviii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii)/149 PPC for the injuries caused to Abid Hussain (PW-12) and directed to pay Daman of Rs. 50,000/- to the injured Abid Hussain (PW-12) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muzammil and directed to pay Daman of Rs. 20,000/- to the injured Muzammil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Pervaiz Hussain (PW-7) and directed to pay Daman of Rs. 50,000/- to the injured Pervaiz Hussain (PW-7) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Moti ul Hassan (PW-9) and directed to pay Daman of Rs. 30,000/- to the injured Moti ul Hassan (PW-9) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxii)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muhammad Jamil and directed to pay Daman of Rs. 30,000/- to the injured Muhammad Jamil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxiii)Rigorous Imprisonment for three years under sections 337-F(iii),337-F(iv)/149 PPC for the injuries caused to Majid Hussain and directed to pay Daman of Rs. 50,000/- to the injured Majid Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxiv)Rigorous Imprisonment for one year under sections 337- F(iii) and 337-A(i)/149 PPC for the injuries caused to
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
Zakir Hussain and directed to pay Daman of Rs. 30,000/- to the injured Zakir Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Jafar Hussain (PW-11) and directed to pay Daman of Rs. 10,000/- to the injured Jafar Hussain (PW-11) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Ghulam Sarwar and directed to pay Daman of Rs. 20,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvii)Rigorous Imprisonment for one year under sections 337- F(v) and 337-F(i)/149 PPC for the injuries caused to Nadir Hussain (PW-10) and directed to pay Daman of Rs. 50,000/- to the injured Nadir Hussain (PW-10) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxviii)Rigorous Imprisonment for three years under sections 337-F(iii) /149 PPC for the injuries caused to Shahzad and directed to pay Daman of Rs. 30,000/- to the injured Shahzad and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Haider Ali and directed to pay Daman of Rs. 30,000/- to the injured Haider Ali and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Iqbal Hussain and directed to pay Daman of Rs. 50,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxxi)Forfeiture of all moveable and immoveable properties of the convict under section 5-A of the Explosive Substances Act, 1908.
Capital Sentence Reference No.4 of 2017. Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
Sultan Shahab ud Din son of Bashir Ahmad:
i)Death on sixteen counts under sections 302(b)/149 PPC as Tazir for committing Qatl-i-Amd of Ghulam Abbas, Abid Hussain, Zahid Abbas, Asad Abbas, Syed Mureed Hussain, Akhtar Hussain, Mohammad Ajmal alias Iqbal, Khizer Abbas, Amjid Hussain, Fahad Abbas, Atif, Adnan Abbas, Jam Qabil , Aun Raza,Fida Hussain and Ali Hassan (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
ii)Death on sixteen counts under section sections 7 (a) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.100,000/- on sixteen counts and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
iii)Death on sixteen counts under sections 3 of the Explosive Substances Act, 1908/149 PPC.
The convict was ordered to be hanged by his neck till dead;
iv)Rigorous Imprisonment for three years under sections
148/149 PPC
v)Rigorous Imprisonment for ten years on twenty four counts under sections 324/149 PPC and directed to pay fine of Rs.50,000/- on each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vi)Rigorous Imprisonment for ten years on twenty four counts under sections 7 (c) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.50,000/- on each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vii)Imprisonment for life under sections 7 (ff) of the Anti- Terrorism Act, 1997;
viii)Rigorous Imprisonment for one year under sections 337 A(i) and 337-F(i)/149 PPC for the injuries caused to
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
Waheed ul Hassan and directed to pay Daman of Rs.10,000/- to the injured Waheed ul Hassan and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
ix)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Riaz and directed to pay Daman of Rs.10,000/- to the injured Riaz and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
x)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Hussain Bakhsh and directed to pay Daman of Rs.20,000/- to the injured Hussain Bakhsh and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(ii)/149 PPC for the injuries caused to Farhan Hussain and directed to pay Daman of Rs. 30,000/- to the injured Farhan Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mobeen and directed to pay Daman of Rs. 30,000/- to the injured Mobeen and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii) and 337-F(v) /149 PPC for the injuries caused to Umar Din and directed to pay Daman of Rs. 50,000/- to the injured Umar Din and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Kamran Hussain and directed to pay Daman of Rs. 10,000/- to the injured Kamran Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xv)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mst. Ruquia and directed to pay Daman of Rs. 10,000/- to the injured Mst. Ruquia and in case of default thereof, the convict was
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
further directed to remain in jail till the payment of the Daman amount;
xvi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(v) and 337-A(i)/149 PPC for the injuries caused to Akhtar Hussain and directed to pay Daman of Rs. 50,000/- to the injured Akhtar Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xvii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Umar Ijaz and directed to pay Daman of Rs. 10,000/- to the injured Umar Ijaz and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xviii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii)/149 PPC for the injuries caused to Abid Hussain (PW-12) and directed to pay Daman of Rs. 50,000/- to the injured Abid Hussain (PW-12) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muzammil and directed to pay Daman of Rs. 20,000/- to the injured Muzammil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Pervaiz Hussain (PW-7) and directed to pay Daman of Rs. 50,000/- to the injured Pervaiz Hussain (PW-7) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Moti ul Hassan (PW-9) and directed to pay Daman of Rs. 30,000/- to the injured Moti ul Hassan (PW-9) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxii)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muhammad Jamil and directed to pay Daman of Rs. 30,000/- to the injured Muhammad Jamil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
xxiii)Rigorous Imprisonment for three years under sections 337-F(iii),337-F(iv)/149 PPC for the injuries caused to Majid Hussain and directed to pay Daman of Rs. 50,000/- to the injured Majid Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxiv)Rigorous Imprisonment for one year under sections 337- F(iii) and 337-A(i)/149 PPC for the injuries caused to Zakir Hussain and directed to pay Daman of Rs. 30,000/- to the injured Zakir Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Jafar Hussain (PW-11) and directed to pay Daman of Rs. 10,000/- to the injured Jafar Hussain (PW-11) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Ghulam Sarwar and directed to pay Daman of Rs. 20,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvii)Rigorous Imprisonment for one year under sections 337- F(v) and 337-F(i)/149 PPC for the injuries caused to Nadir Hussain (PW-10) and directed to pay Daman of Rs. 50,000/- to the injured Nadir Hussain (PW-10) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxviii)Rigorous Imprisonment for three years under sections 337-F(iii) /149 PPC for the injuries caused to Shahzad and directed to pay Daman of Rs. 30,000/- to the injured Shahzad and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Haider Ali and directed to pay Daman of Rs. 30,000/- to the injured Haider Ali and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Iqbal Hussain and
Capital Sentence Reference No.4 of 2017. Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
directed to pay Daman of Rs. 50,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxxi)Forfeiture of all moveable and immoveable properties of the convict under section 5-A of the Explosive Substances Act, 1908.
Muhammad Usman son of Haji Rustam Khan:
i)Death on sixteen counts under sections 302(b)/149 PPC as Tazir for committing Qatl-i-Amd of Ghulam Abbas, Abid Hussain, Zahid Abbas, Asad Abbas, Syed Mureed Hussain, Akhtar Hussain, Mohammad Ajmal alias Iqbal, Khizer Abbas, Amjid Hussain, Fahad Abbas, Atif, Adnan Abbas, Jam Qabil , Aun Raza,Fida Hussain and Ali Hassan (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
ii)Death on sixteen counts under section sections 7 (a) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.100,000/- on sixteen counts and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default.
The convict was ordered to be hanged by his neck till dead;
iii)Death on sixteen counts under sections 3 of the Explosive Substances Act, 1908/149 PPC.
The convict was ordered to be hanged by his neck till dead;
iv)Rigorous Imprisonment for three years under sections
148/149 PPC
v)Rigorous Imprisonment for ten years on twenty four counts under sections 324/149 PPC and directed to pay fine of Rs.50,000/- on each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vi)Rigorous Imprisonment for ten years on twenty four counts under sections 7 (c) of the Anti-terrorism Act, 1997/149 PPC. and directed to pay fine of Rs.50,000/- on
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
each count and in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default;
vii)Imprisonment for life under sections 7 (ff) of the Anti- Terrorism Act, 1997;
viii)Rigorous Imprisonment for one year under sections 337 A(i) and 337-F(i)/149 PPC for the injuries caused to Waheed ul Hassan and directed to pay Daman of Rs.10,000/- to the injured Waheed ul Hassan and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
ix)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Riaz and directed to pay Daman of Rs.10,000/- to the injured Riaz and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
x)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Hussain Bakhsh and directed to pay Daman of Rs.20,000/- to the injured Hussain Bakhsh and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(ii)/149 PPC for the injuries caused to Farhan Hussain and directed to pay Daman of Rs. 30,000/- to the injured Farhan Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mobeen and directed to pay Daman of Rs. 30,000/- to the injured Mobeen and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii) and 337-F(v) /149 PPC for the injuries caused to Umar Din and directed to pay Daman of Rs. 50,000/- to the injured Umar Din and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xiv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Kamran Hussain and directed to pay Daman of Rs. 10,000/- to the injured Kamran Hussain and in case of default thereof, the
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
convict was further directed to remain in jail till the payment of the Daman amount;
xv)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Mst. Ruquia and directed to pay Daman of Rs. 10,000/- to the injured Mst. Ruquia and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xvi)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(v) and 337-A(i)/149 PPC for the injuries caused to Akhtar Hussain and directed to pay Daman of Rs. 50,000/- to the injured Akhtar Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xvii)Rigorous Imprisonment for one year under sections 337- F(i) /149 PPC for the injuries caused to Umar Ijaz and directed to pay Daman of Rs. 10,000/- to the injured Umar Ijaz and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xviii)Rigorous Imprisonment for one year under sections 337- F(i), 337-F(iii)/149 PPC for the injuries caused to Abid Hussain (PW-12) and directed to pay Daman of Rs. 50,000/- to the injured Abid Hussain (PW-12) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muzammil and directed to pay Daman of Rs. 20,000/- to the injured Muzammil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Pervaiz Hussain (PW-7) and directed to pay Daman of Rs. 50,000/- to the injured Pervaiz Hussain (PW-7) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Moti ul Hassan (PW-9) and directed to pay Daman of Rs. 30,000/- to the injured Moti ul Hassan (PW-9) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
xxii)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Muhammad Jamil and directed to pay Daman of Rs. 30,000/- to the injured Muhammad Jamil and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxiii)Rigorous Imprisonment for three years under sections 337-F(iii),337-F(iv)/149 PPC for the injuries caused to Majid Hussain and directed to pay Daman of Rs. 50,000/- to the injured Majid Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxiv)Rigorous Imprisonment for one year under sections 337- F(iii) and 337-A(i)/149 PPC for the injuries caused to Zakir Hussain and directed to pay Daman of Rs. 30,000/- to the injured Zakir Hussain and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxv)Rigorous Imprisonment for one year under sections 337- F(i)/149 PPC for the injuries caused to Jafar Hussain (PW-11) and directed to pay Daman of Rs. 10,000/- to the injured Jafar Hussain (PW-11) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvi)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Ghulam Sarwar and directed to pay Daman of Rs. 20,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxvii)Rigorous Imprisonment for one year under sections 337- F(v) and 337-F(i)/149 PPC for the injuries caused to Nadir Hussain (PW-10) and directed to pay Daman of Rs. 50,000/- to the injured Nadir Hussain (PW-10) and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxviii)Rigorous Imprisonment for three years under sections 337-F(iii) /149 PPC for the injuries caused to Shahzad and directed to pay Daman of Rs. 30,000/- to the injured Shahzad and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxix)Rigorous Imprisonment for three years under sections 337-F(iii)/149 PPC for the injuries caused to Haider Ali
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
and directed to pay Daman of Rs. 30,000/- to the injured Haider Ali and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxx)Rigorous Imprisonment for five years under sections 337- F(v)/149 PPC for the injuries caused to Iqbal Hussain and directed to pay Daman of Rs. 50,000/- to the injured Ghulam Sarwar and in case of default thereof, the convict was further directed to remain in jail till the payment of the Daman amount;
xxxi)Forfeiture of all moveable and immoveable properties of the convict under section 5-A of the Explosive Substances Act, 1908.
The convicts were extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 .All the sentences awarded to the convicts were ordered to run concurrently by the learned trial court .
Wajid Rasheed son of Abdul Rasheed, the other co-accused of the convicts was tried separately under the Juvenile Justice System Ordinance, 2000, being under the age of eighteen years at the time of occurrence and hence “child” within the definition of Juvenile Justice System Ordinance, 2000. Wajid Rasheed son of Abdul Rasheed was also convicted and sentenced similarly, however, Wajid Rasheed son of Abdul Rasheed, being under the age of eighteen years at the time of occurrence and hence “child” within the definition of Juvenile Justice System Ordinance, 2000, was not awarded the death sentences.
2.Feeling aggrieved, Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, (convicts) lodged Criminal Appeal No. 529-ATA of 2017 assailing their convictions and sentences. Sultan Shahab ud Din son of Bashir Ahmad (convict) lodged Criminal Appeal No. 524-ATA of 2017 assailing his conviction and sentences. Muhammad Usman son of Haji Rustam Khan
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
(convict) lodged Criminal Appeal 526-ATA of 2017 assailing his conviction and sentences. The learned trial court submitted Reference under section 374 Cr.P.C. read with section 30(2) of Anti-Terrorism Act, 1997, which has been numbered as Capital Sentence Reference No. 04 of 2017, for confirmation or otherwise of the death sentences awarded to Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan (appellants). We intend to dispose of the Criminal Appeal No. 529-ATA of 2017, Criminal Appeal No. 524-ATA of 2017, Criminal Appeal 526-ATA of 2017 and the Capital Sentence Reference No.04 of 2017 through this single judgment.
3.Precisely the facts necessary, as stated by Imdad Hussain (PW-17) , the complainant of the case, are as under: -
“Stated that on 15.01.2012 I participated in ‘Chehlum' Hazrat Imam Hussain R.A at Derbar Hussain Khanpur when procession came out from Derbar Hussain Khanpur and reached at road, a Bomb blasted which was installed near a electric poll, hue and cry arosed ultimately in result of Bomb Blast 14/15 persons died at the spot while 60/70 persons injured. The injured were Riaz, Mohammad Din, Abid Hussain, Muzammil Hussain, Moti-ul- Hassan etc, alongwith many other persons while Aun Raza, Jam Qabel, Ali Hassan, Adnan Abbas, Atif Hussain, Mulazim Hussain, Amjad Hussain, Khizer Abbas, Mohammad Ajmal, Akhtar Hussain, Asad Abbas, Zahid Abbas, Abid Hussain, Ghulam Abbas and Mureed Hussain were martyred. Prior to occurrence we saw 10/12 suspected persons around the Derbar Sharif, they were talking with each other and saying that 'shias are kafer! any shia is found, he be killed and in the meantime the occurrence took place. The suspected persons were about 25 to 30 years old while one of them was 50/60 years old. Their height was normal. Police came at the place of occurrence. I submitted application Exh.PZZ for registration of case to the police upon which formal F.1.R was chalked out.
On 07.4.2012 I joined identification parade alongwit (sic) Mulazim Hussain, Pervaiz Hussain, Fayyaz Hussain, Moti-ul-Hassan in Central Jail Bahawalpur. The learned Magistrate was present in the Central Jail. The accused persons were mixed with dummy persons. I placed my hand at the head of a who was sitting at 5th number. Then I placed my hand at the head of person who was sitting at 14th number. We had seen these persons 07/08 days prior to the occurrence around the Derbar Sharif. They were standing near electric poll. I and Mulazim Hussain were on checking duty at Derbar Sharif, We inquired from above said two persons that who were they and they told us that they are WAPDA employees and they had come to
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
maintain electric wires. We had well-identified these persons as we had already seen them at the place of occurrence in the disguise of WAPDA employees.
On 15.5.2012 again identification parade held in the New Central Jail Bahawalpur and I joined identification proceedings alongwith Ghulam Raza, Mulazim Hussain, Pervaiz Hussain, Fayyaz Hussain, Moti-ul- Hassan. I identified the accused who was sitting at 6th number in the first row and the other person was identified by me who was sitting at 19th number in the second row. These are real culprits.
On 02.6.2012 I also joined identification proceedings in the New Central Jail Bahawalpur alongwith Ghulam Raza, Fayyaz Hussain, Mulazim Hussain, Moti-ul-Hassan, Pervaiz Hussain. The learned Magistrate asked us to identify the accused persons who were sitting in lines. I identified the person who was sitting at No.10 in first row and the person who was sitting at 2nd number in the second row. These persons were also among the accused persons which we had seen on the day of occurrence. All the accused persons are present in the Court (in Central Jail Bahawalpur) at this time. Investigating Officer recorded my statement in this regard.”
4.After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan along with their co-accused namely Master Muhammad Nawaz ,who died in custody on 06.08.2017, were sent to face trial. The learned trial court framed the charge against the accused on 17.12.2014 to which the accused pleaded not guilty and claimed trial.
5.The prosecution in order to prove its case got statements of as many as thirty witnesses recorded. The ocular account of the case was furnished by Fayyaz Hussain (PW-6), Pervaiz Hussain (PW-7), Ghulam Raza (PW-8), Moti ul Hassan (PW-9) Mulazim Hussain (PW-14) , Imdad Hussain (PW-17), Nadir Hussain (PW-10), Jafar Hussain (PW-11), Abid Hussain (PW-12) ,Farhan Abbas (PW-13) and Khadim Hussain (PW-15). Syed Javed Hussain Shah (PW-16) stated that on 19.09.2013 the post mortem examination of the
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
dead body of the deceased namely Fida Hussain was conducted and the Medical Officer handed over the last worn clothes of the deceased to the police officials. Shahid Naveed 315/C (PW-18) stated that on 15.01.2012 he escorted the dead bodies of the deceased to the hospital and in his and in the presence of Shabbir Ahmad (PW-25), Liaquat Ali, SI (PW-22), the Investigating Officer of the case , took into possession a strip of electricity meter with its parts (P-2) , burnt wallet (P-3) iron strip (P-4), 12 ball bearings (P-5/1-12), four nuts (P-6/1-4) and one bolt (P-7) from the place of occurrence. Asim Mahmood 345-C (PW-19) stated that on 15.01.2012 he recorded the formal F.I.R (Exh.PCCC) and on 19.09.2013 escorted the dead body of the deceased namely Fida Hussain to the hospital for post mortem examination. Muhammad Yar Gul, ASI (PW-20) stated that on 15.01.2012 Liaquat Ali, SI (PW-22) took into possession various articles from the place of occurrence. Syed Tahir Hussain, Land Officer, Municipal Committee Khanpur (PW-24) prepared the scaled site plan of the place of occurrence (Exh.PGGG). Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) got conducted the test identification parade proceedings on 15.05.2012 and prepared his report (Exh.PJJJ). Muhammad Amjad Hafeez, Magistrate (PW-
28), got conducted the test identification parade proceedings on 02.06.2012 and prepared his report (Exh.PRRR). Ch. Muhammad Nawaz, Civil Judge (PW-29) got conducted the test identification parade proceedings on 07.04.2012 and prepared his report (Exh.PSSS). Liaquat Ali, SI (PW-22) investigated the case from 15.01.2012 till 16.01.2012 and detailed the facts of his investigation in his statement before the learned trial court. Zahoor ud Din David, Inspector(PW-30) investigated the case from 17.01.2012 till
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Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
19.06.2012, arrested the appellants namely Shabbir Ahmad alias Shabru alias Asim and Muhammad Shakeel alias Abdullah on 04.05.2012 in this case, arrested the appellants namely Muhammad Usman and Sultan Shahab ud Din on 17.05.2012 in this case and detailed the facts of his investigation in his statement before the learned trial court.
6.The prosecution also got Dr. Mehwish Abbasi, (PW-1) , Dr. Tariq Aziz (PW-2) , Dr. Ishtiaq Bhatti (PW-3) , Dr. Noshab (PW-4) , Dr. Imran (PW-5) and Dr. Khurram Saleem (PW-27) examined. Dr. Mehwish Abbasi, (PW-1) examined the injured namely Mst. Ruquia Bibi on 15.01.2012. On 15.01.2012 Dr. Tariq Aziz (PW-2) examined the injured Jafar Hussain (PW-11), Kamran Hussain, Abid Hussain (PW-12), Syed Waheed ul Hassan, Muhammad Ijaz, Nadir Hussain (PW-10), Mobeen, Syed Akhtar Hussain, Umar Din and on the same day also conducted the post mortem examinations of the dead bodies of the deceased namely Syed Moreed Hussain, Akhtar Hussain, Muhammad Ajmal alias Iqbal and Khizar Abbas. On 19.09.2013 , Dr. Ishtiaq Bhatti (PW-
3)conducted the post mortem examination of the dead body of the deceased namely Fida Hussain. On 15.01.2012 , Dr. Noshab (PW-4) conducted the post mortem examinations of the dead bodies of the deceased namely Ghulam Abbas, Zahid Abbas, Asad Abbas and Jam Qabil. On 15.01.2012 Dr. Imran (PW-5) examined the injured namely Majid Hussain, Zakir Hussain, Mehboob Alam, Ghulam Sarwar , Fida Hussain (then injured later deceased), Pervaiz Hussain (PW-7), Moti ul Hassan (PW-9), Mozammil Hussain and also conducted the post mortem examinations of the dead bodies of the deceased namely Abid Hussain, Fahad Abbas, Atif and Aoun Muhammad. On 25.01.2012 Dr. Khurram Saleem, (PW-27) examined the injured namely
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
Shehzad Hussain, Haider Ali, Farhan Abbas (PW-13) , Riaz Ahmad, Hussain Bakhsh and Syed Iqbal Hussain Shah.
7.On 14.01.2015, the learned Deputy Prosecutor General gave up the prosecution witness namely Muhammad Tariq ASI as being unnecessary. On 06.07.2017,the learned Deputy Prosecutor General gave up the prosecution witnesses namely Hussain Bakhsh son of Mohammad Bakhsh, Riaz Ahmad son of Abdul Aziz, Mohammad Mobeen son of Bagh Ali, Umar Din son of Wall Mohammad, Kamran Hussain son of Fida Hussain, Ruqia Bibi daughter of Mumtaz, Waheed-ul-Hassan son of Mohammad Ibrahim, Syed Akhtar Hussain, Mohammad Ejaz son of Mohammad Ramzan, Muzammil Hussain son of Bagh Ali, Mohammad Jameel son of Atta Mohammad, Majid Hussain son of Altaf Hussain, Mehboob Aalam son of Mukhtar Hussain, Ghulam Sarwar son of Mohammad Siddique, Shakir Hussain son of Shabbir Hussain as being un-necessary and gave up the prosecution witness namely Fida Hussain son of Shamla as being dead. On 12.07.2017,the learned Deputy Prosecutor General gave up the prosecution witnesses namely Nadeem Abbas 18/HC and Pervaiz 967/C as being unnecessary. On 17.10.2017,the learned Deputy Prosecutor General closed the prosecution evidence after tendering in evidence the report of the Punjab Forensic Science Agency, Lahore (Exh.PTTT).
8.After the closure of prosecution evidence, the learned trial court examined the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan under section 342 Cr.P.C. and in answer to question
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
why this case against you and why the PWs have deposed against you, the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan replied that they were innocent and had been falsely involved in the case due to suspicion. The appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan further stated that they had not committed any offence and were not involved in the occurrence in any manner. The appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan opted not to get themselves examined under section 340(2) Cr.P.C. however, the appellant namely Sultan Shahab ud Din produced the certified copies of judgment of this court dated 02.02.2015 (Exh.PG) and certified copy of a suit (Exh.DH) as evidence in his defence.
9.On the conclusion of the trial, the learned Judge, Anti-Terrorism Court, Bahawalpur Division,Camp at New Central Jail Bahawalpur, convicted and sentenced the appellants as referred to above.
10.The contention of the learned counsels for the appellants precisely is that the whole case is fabricated and false. The learned counsels for the appellants submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels for the appellants further contended that the
Capital Sentence Reference No.4 of 2017.
Criminal Appeal No. 529-ATA of 2017.
Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
statements of prosecution witnesses were not worthy of any reliance. The learned counsels for the appellants also submitted that the appellants had no connection with the occurrence. The learned counsels for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsels for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt.
11.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that the prosecution has proved its case beyond the shadow of any uncertainty by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the appellants were responsible for the deaths of sixteen innocent people and for causing injuries to as many as twenty four other persons. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the recoveries from the appellants also corroborated the prosecution account. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case prayed for the rejection of appeals.
12.We have heard the learned counsels for the appellants, the learned Deputy Prosecutor General , the learned counsel appearing on behalf of the
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complainant of the case and with their assistance perused the record and evidence recorded during the trial.
13.It was indeed an unfortunate incident spiked by sectarian hatred which resulted in the deaths of as many as sixteen innocent persons namely Ghulam Abbas, Abid Hussain, Zahid Abbas, Asad Abbas, Syed Mureed Hussain, Akhtar Hussain, Mohammad Ajmal alias Iqbal, Khizer Abbas, Amjid Hussain, Fahad Abbas, Atif, Adnan Abbas, Jam Qabil , Aun Raza,Fida Hussain and Ali Hassan and twenty four persons namely Riaz, Hussain Bakhsh, Farhan Abbas (PW-13), Mobeen, Umar Din, Kamran Hussain, Mst.Ruqia Bibi, Waheed-ul-Hassan, Akhtar Hussain, Umar Ejaz, Abid Hussain, Muzammil Hussain, Pervaiz Hussain (PW-7), Moti-ul Hassan (PW- 9), Mohammad Jameel, Majid Hussain, Zakir Hussain, Mehboob Aalam, Jafar Hussain (PW-11) , Ghulam Sarwar, Nadir Hussain (PW-10) , Shehzad, Haider Ali and Iqbal Hussain suffered from serious injuries , however, the fact remains that the names of the assailants were not mentioned in the written application (Exh.PZZ) as submitted by Imdad Hussain (PW-17) and the formal F.I.R (Exh.PCC) was lodged against unknown accused persons. The prosecution, in order to prove the identities of the appellants as being the accused involved in the occurrence, got Fayyaz Hussain (PW-6) , Pervaiz Hussain (PW-7) , Ghulam Raza (PW-8) , Moti ul Hassan (PW-9) Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) examined, who all stated that they had identified the appellants during the test identification parade proceedings. Facts which establish the identity of any person whose identity is relevant are, by virtue of Article 22 of the Qanun-e-Shahadat , 1984 , always relevant. The term 'identification' means proving that a person before the
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Court is the very same that he is alleged, charged or reputed to be.
Identification is almost always a matter of opinion or belief. With regard to a criminal offence identification has a two-fold object: first, to satisfy the investigating authorities, before sending a case for trial to Court, that the person arrested, but not previously known to the witnesses, was the one or those who committed the crime,; second, to satisfy the Court that the accused was the real offender concerned with the crime. Identification proceedings are therefore as much in the interest of the prosecution as in the interest of the accused. An identification parade is held in the course of investigation of an offence for the purpose of enabling the witnesses to identify the persons who are concerned with the offence; they are not held merely for the purpose of identifying persons irrespective of their connection with the offence; the witnesses are explained the purpose of holding these parades and are asked to identify the persons which are concerned in the offence. But it is obvious that if before the Court a witness pointed to a stranger and stated that he was the offender, there would be no guarantee of the truth of his assertion.
Consequently in order to have some assurance of the truth, a test identification is held that is to say, the witness at an earlier stage is confronted with the alleged offender, not standing alone but mixed with a number of innocent persons of the same age-group and of similar build and features. That is to say, it is to give credence to the evidence of a witness who does not know the accused from before, subsequent to the commission of the offence, that a test identification is held, since, without it, the evidence of the witness concerned would have little value. Of course, the substantive evidence, i.e., evidence on which alone the Court can base its order of conviction or acquittal, is that
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given by the witness before the Court, but the value of his deposition there of having identified the accused in the act of the crime is of little consequence.
Before the Court can accept such identification as sufficient to establish the identity of the accused, it is very necessary that there be reliable corroborative evidence, and the corroborative evidence which the Court is entitled to accept in such cases is that of a test identification parade conducted with due precautions. In short, a test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the Court. But of all evidence of fact, evidence about the identification of a stranger is perhaps the most elusive, and the Courts are generally agreed that the evidence of identification of a stranger based on a personal impression, even if the veracity of the witness is above board, should be approached with considerable caution, because a variety of conditions must be fulfilled before evidence based on the impression can become worthy of credence. We have noticed that the test identification parade proceedings were not conducted as per the law and in violation of the Police Rules, 1934. The august Supreme Court of Pakistan in the case of “Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018” reported as PLJ 2019 SC (Cr.C) 153 has mentioned the requirements and safeguards which are to be meticulously followed and observed in all the test identification parades held in connection with criminal cases as under:-
“3.Before parting with this order we would like to point out that the matter of taking of different steps in holding of a proper test identification parade in connection with a criminal case has developed over many decades and the requirements of such a parade as well as the safeguards to be ensured during such a parade so as to make it a meaningful exercise and providing material in a criminal case to be considered in a trial have elaborately been detailed in the landmark judgment
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passed by a learned Division Bench of the Lahore High Court, Lahore in the case of Muhammd Yaqoob and anotherv The State(1989 P.Cr.L.J. 2227) and in the said judgment Mr. Justice Khalil-ur-Rehman Ramday(as his lordship then was a Judge of the Lahore High Court, Lahore) had observed as follows:
“16. But before we undertake a deeper analysis of the evidentiary value of the test identification proceedings held in the present case, it would be of advantage to first appreciate the object and the value of such an evidence as also to recapitulate the standards required to be met before such like identification parades could be credited with reliance.
17.The evidence offered through identification' proceedings is not a substantive piece of evidence but is only corroborative of the evidence given by the witnesses at the trial Muhammad Bashir v. The State P L D 1958 SC (Pak.) 1. It has no independent value of its own Muhammad Afzal and another v. The State 1982 S C M R 129 and cannot as a rule, form a sufficient basis for conviction though the same may add some weight to the other evidence available on record Sudhindranath v. The State A I R 1952 Cal. 423
18.The identification parades (as they are normally called) are necessary only where the offender was a complete stranger to the witnesses Ismail and another v. The State 1974 S C M R 175. And the whole object of the identification proceedings is to find out whether the suspect was or was not the real offender Satya Narain v. The State A I R 1953 All. 385 and Kind v. Christle 1914 AC 545.
19.Such like identification proceedings are not the testimony of a witness but the testimony of the senses of the witness. It is essentially a test of his power of observation and perception, a test of his power to recognize strangers and a test of his memory. These gifts of God may vary from man to man. A witness may be honest, independent and truthful but then his memory may be faulty. And then the tricks of memory and its conscious and unconscious activity could also wrap the vision of a man. When mistakes are possible in the recognition of a man known from before, then the possibility of such mistakes in identifying strangers is definitely greater. And more so when the witnesses have seen the offender for the first time during the occurrence and that also briefly and not with a calm but in an excited, confused and terrorised state of mind.
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20.It was primarily for these reasons that Dorab Patel, J. (as his Lordship then was) cautioned the Courts to beware of the dangers inherent in the identification of strangers and quoting from the Criminal Law Revision Committee Report (1972), observe in Lal Pasand's case P L D 1981 SC 142 that mistaken identifications were:‐
"........by far the greatest cause of actual or possible wrong convictions...."
A similar note of caution was given by Monir in his Evidence Act Pak. Edition, Vol. 1 where the advice is that:-
" .... the evidence as to identification ought in each case, to be subjected to a close and careful scrutiny."
21.What then are the standards required to be satisfied by such an evidence before the same could be accepted by a Court of law?
22.The answer is that the vital factor determinative of the worth and value of identification proceedings is the effectiveness of the precautions taken, before and during the course of such proceedings which are designed to eliminate the possibility of unjustified convictions.
23.Although there is no law, which prescribes any such precautions yet the necessary guidelines are available in the form of executive instructions and judicial pronouncements. Some of them are summarised as under:-
(a)Memories fade and visions get blurred with passage of time. Thus, an identification test, where an unexplained and unreasonably long period has intervened between the occurrence and the identification proceedings, should be viewed with suspicion. Therefore, an' identification parade, to inspire confidence, must be held at the earliest possible opportunity after the occurrence;
(b)a test identification, where the possibility of the witness having seen the accused persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore, imperative to eliminate all such possibilities. It should be ensured that, after their arrest, the suspects are put to identification tests as early as possible. Such suspects should preferably, not be remanded to police custody in the first instance and should be kept in judicial custody till the identification proceedings are held. This is to avoid the possibility of overzealous I.Os. showing the suspects to the witnesses while they are in police custody. Even when these accused persons are, of necessity, to be taken to Courts for remand
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etc. they must be warned to cover their faces if they so choose so that no witness could see them;
(c)identification parades should never be held at police stations;
(d)the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;
(e)in order to guard .against the possibility of a witness identifying an accused person by chance, the number of persons (dummies) to be intermingled with the accused persons should be as much as possible But then there is also the need to ensure that the number of such persons is not increased to an extent which could have the effect of confusing the identifying witness. The superior Courts have, through their wisdom and long experience, prescribed that ordinarily the ratio between the accused persons and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are some special justifiable circumstances warranting a deviation from it;
(f)if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person;
(g)it must be ensured that before a witness has participated in the identification proceedings, he is stationed at a place from where he cannot observe the proceedings and that after his participation he is lodged at a place from where it is not possible for him to communicate with those who have yet to take their turn. It also has to be ensured that no one who is witnessing the proceedings, such as the members of the jail staff etc., is able to communicate with the identifying witnesses;
(h)the Magistrate conducting the proceedings must take an intelligent interest in the proceedings and not be just a silent spectator of the same bearing in mind at all times that the life and liberty of some one depends only upon his vigilance and caution;
(i)the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line‐up at the parade alongwith their parentage, occupation and addresses;
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(j)the Magistrate must faithfully record all the objections and statements, if any, made either by the accused persons or by the identifying witnesses before, during or after the proceedings;
(k)where a witness correctly identifies an accused person, the Magistrate must ask the witness about the connection in which the witness has identified that person i.e. as a friend, as a foe or as a culprit of an offence h etc. and then incorporate this statement in his report;
(l)and where a witness identifies a person wrongly, the Magistrate must so record in his report and should also state the number of persons wrongly picked by the witness;
(m)the Magistrate is required to record in his report all the precautions taken by him for a fair conduct of the proceedings and
(n)the Magistrate has to give a certificate at the end of his report in the form prescribed by. C.H.II.C. of Vol. III of Lahore High Court Rules and Orders.
24.The measures above listed should, however, not be taken as exhaustive of the steps which are required to be taken before, during and after the identification proceedings. All these requirements are no doubt mandatory but at the same time they are only illustrative of the precautions, which the Courts of law demand before some respect can be shown to the evidence offered through the test identification proceedings.
25.In enunciating the above principles governing the proceedings in question and in enumerating the above measures and requirements, we have sought guidance from the following:‐
(i)Rules and Orders of the Lahore High Court, Chapter 11‐C of Vol. III; (ii) Punjab Government Circular Letter No. 6091‐J‐36/39829 (H‐Judl.) dated 19-12‐1936; (iii) Punjab Government Circular Letter No. 6546‐J‐43/83844 (H‐Judl.), dated 17‐12‐1943; (iv) Punjab Government Circular Letter No. Judl. I‐(13)/61, dated 26‐7‐1961, (v) Monir's Evidence Act (Pak. Edition) Vol. I, (vi) Lal Pasand v. The State P L D 1981 SC 142, (vii) Muhammad Afzal v. The State 1982 S C M R 129, (viii) Ismail v. The State 1974 S C M R 175, (ix) Khadim Hussain v. The State 1985 S C M R 721, (x) Muhammad Bashir Aslam v. The State P L D 1958 SC (Pak.), (xi) Gul Baig v. The State P L D 1964 Kar. 275, (xii) Musharrif Hussain v. The State P L D 1970 Dacca 686, (xiii) Sadu v. The State 1972 P Cr. L J 10, (xiv) Qabil Shah v. The State P L D 1960 Kar.
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697, (xv) Wahid Bakhsh v. The State 1969 P Cr. L J 137, (xvi) Karim v. The State P L D 1961 Kar. 728, (xvii) Kameshwar Singh v. The State A I R 1972 SC 1M (xviii) Parbhu v. Emp. A I R 1943 Lah. 946, (xix) Emp. v. Debi Charan A I R 1942 All. 339, (xx) Sataya Naryan v. The State A I R 1953 All. 385, (xxi)‐ Gajadher v. Emp. A I R 1932 Oudh. 99 and (xxii) Ramzan v. Emp. A I R 1929 Sindh 149.”
We have failed to find a more elaborate illustration of the requirements and the safeguards necessary for holding a test identification parade than found in the above mentioned portion of the judgment passed in the said precedent case. We wholeheartedly approve the said requirements and safeguards which are to be meticulously followed and observed in all the test identification parades held in connection with criminal cases.”
14.Keeping in our minds the requirements and the safeguards necessary for holding a test identification parade as determined by the august Supreme Court of Pakistan, we have proceeded to examine the prosecution evidence .
Not only it is an admitted fact that the assailants were not named in the written application (Exh.PZZ) as submitted by Imdad Hussain (PW-17) but it is also an admitted fact that no detailed features of the accused were mentioned in the written application (Exh.PZZ) as submitted by Imdad Hussain (PW-17) or in the statements recorded under section 161 of the Code of Criminal Procedure, 1898 of the witnesses. We ourselves have perused the written application (Exh.PZZ) as submitted by Imdad Hussain (PW-17) and it is apparent from the perusal of the same that it is bereft of description of any of the suspects who were allegedly seen and heard by the witnesses prior to the occurrence. Matching the description in the first information report of the accused is the starting point towards identification of the unknown accused.
In this case no such information was made available prior to the holding of the two test identification parade proceedings held with regard to the
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appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad ,Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan. Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) got conducted the test identification parade proceedings on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and prepared his report (Exh.PJJJ) whereas Muhammad Amjad Hafeez, Magistrate (PW-28) got conducted the test identification parade proceedings on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan and prepared his report (Exh.PRRR). Ch.
Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26),who got conducted the test identification parade proceedings on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and prepared his report (Exh.PJJJ) did not mention any features of the dummies which were being used during the test identification parade proceedings. Similarly, Muhammad Amjad Hafeez, Magistrate (PW-28), who got conducted the test identification parade proceedings on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan and prepared his report (Exh.PRRR) also did not mention any features of the dummies which were being used during the test identification parade proceedings. It is, therefore, uncertain how the appellants were hauled and lined-up for the identification
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parade without Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) and Muhammad Amjad Hafeez, Magistrate (PW-28) first matching the description of the accused given by the witnesses with the appellants and the dummies to be used. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. Both Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) and Muhammad Amjad Hafeez, Magistrate (PW-28) stated in their statements before the learned trial court that the dummies used during the two test identification parade proceedings, held on 15.05.2012 and 02.06.2012, had already been selected and placed in the rows by the jail authorities and had not been selected by Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) and Muhammad Amjad Hafeez, Magistrate (PW-28). Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) admitted during cross-examination as under :- “It is correct that the dummies of identification parade proceedings of case F.I.R No.23/2012 are the same which are of this case (22/2012), Volunteered it is job of the Jail Authorities to provide dummies from the prisoners from the Jail. It is correct that the position of Mohammad Shakeel accused is same at sr.No.06 in both identification parades however the position of accused Shabbir is different, Volunteered moreover the accused persons and dummies asked to change their positions but they did not change the positions. It is correct that I have shown accused Shabbir Ahmad alongwith dummy Aqeel-ur Rehman in both identification parades, Volunteered the serial number of Shabbir Ahmad is different in both identification parades. It is correct that in both the identification parades, Mohammad Usman Koreja Assistant
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Superintendent Jail arranged the test of identification parade, Volunteered it is internal arrangement of Jail Authorities and I have no concern with it.”(emphasis supplied)
Similarly, Muhammad Amjad Hafeez, Magistrate (PW-28) admitted during cross-examination as under :-
“The A.S.Jail had already arranged for test of identification parade and he had brought the accused persons and dummies however I fell in line of the accused persons and dummies. I directed the A.S. Jail Abdul Wadood inside the jail to arrange the line of accused persons Mohammad Usman, Sultan Shahab-ud-Din and dummies.”(emphasis supplied) As such the test identification parades held on 15.05.2012 and 02.06.2012 lose their authenticity and have no value in the eye of law. Reliance is placed upon a binding judgment of the august Supreme Court of Pakistan in the case titled Muhammad Afzal alias Abdullah v. The State and others (2009 SCMR 436) wherein it has been held as under:
“. Absence of such details in the report/F.I.R. militates against bona fides of the prosecution and greatly mars evidentiary value of the test identification parade. It is well-settled that when description by appearance of the accused is not given in the report/F.I.R. and specific role is not attributed to him, his identification in Court for the first time, in the absence of strong corroboratory evidence, is not safe to be relied upon because by the passage of time memory fades and possibility that an accused might not have been mistakenly picked out is augmented..”
The august Supreme Court of Pakistan in case of SABIR ALI alias FAUJI v. The State (2011 SCMR 563) has held as under:-
“It is also settled principle of law that when witnesses giving no description of the accused previous to identification, such type of identification cannot be reliable. See Maula Dad's case (AIR 1925 Lah. 426).”
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15.Furthermore, Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW- 26), who got conducted the test identification parade proceedings on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and prepared his report (Exh.PJJJ) and Muhammad Amjad Hafeez, Magistrate (PW-28), who got conducted the test identification parade proceedings on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan and prepared his report (Exh.PRRR), while holding the test identification parade proceedings , failed to observe and mention the ages, heights, complexions of skin, weight and occupation of the dummies being used during the test identification parade and of the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad, Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan who were to be identified, which observations were necessary to rule out any possibility of collusion and helping out the witnesses by making the appellants stand out during the test identification parade proceedings. As mentioned above, the august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 reported as PLJ 2019 SC (Cr.C) 153 has mentioned the requirements and safeguards which are to be meticulously followed while holding the test identification parade proceedings and one of the requirement is as under:-
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“(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form part of the line up at the parade alongwith their parentage, occupation and addresses;”
We ourselves have examined the report (Exh.PJJJ) as prepared by Ch.
Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26), who got conducted the test identification parade proceedings on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the report (Exh.PRRR) as prepared by Muhammad Amjad Hafeez, Magistrate (PW-28), who got conducted the test identification parade proceedings on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan and find that both, Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) and Muhammad Amjad Hafeez, Magistrate (PW-28) , did not mention the age, height, complexion , weight , occupation of the participants of the test identification parade proceedings or the fact whether they had facial hair or otherwise. Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) during cross-examination admitted as under:- “It is correct that I have not mentioned the features (height, colour, face, colour of eyes etc) of dummies in my report.”
Such test identification parade proceedings , as held in this case, offer no clue towards the identity of the assailants. Reliance is placed on the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) wherein it has been held as under:-
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“The Test Identification Parade ("TIP") (Ex/PN) which was conducted by the Special Judicial Magistrate (PW-13) on 13.6.2006 is fraught with several infirmities diminishing its probative and evidentiary value. Brief description of the two unknown persons (later on identified as the appellants) in the first information report mentions their height, bodily size and colour of the skin. TIP proceedings are silent regarding the description of the unknown accused given by the complainant in the report. TIP can only commence, once suspects matching the description in the crime report or in the statements of the witnesses under section 161, Cr.P.C. have been arrested. Matching the description in the first information report is the starting point towards identification of the unknown accused. It is, therefore, uncertain how the appellants were hurled and lined-up for the identification parade without the Magistrate first matching the description given by the complainant. Selection of the suspects, without any correlation with description of the accused in the first information report, raises doubts and makes the identification proceedings unsafe and doubtful rendering the identification evidence inconsequential. This is just a shade apart from cases where there is no description of the accused in the FIR, the effect being the same, casting doubts on the credibility of the test identification parade. See State/Government of Sindh v. Sobharo (1993 SCMR 585), Muhammad Afzal alias Abdullah v. State (2009 SCMR 436), Sabir Ali alias Foji v. State (2011 SCMR 563) and Muhammad Abdul Hafeez v. State of A.P. (AIR 1983 SC 367)”.
16.We have also noted with grave concern that the test identification parade proceedings held on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the test identification parade proceedings held on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan, the accused were identified in the same test identification parade proceedings without there being held separate test identification parade proceedings with regard to establishing the identity of each accused. We ourselves have examined the report (Exh.PJJJ) as prepared by Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26), who got conducted the test identification parade proceedings on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of
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Hazoor Bakhsh and find that both the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh were made to sit in the same row along with the dummies . Similarly, a perusal of the report (Exh.PRRR) as prepared by Muhammad Amjad Hafeez, Magistrate (PW-28), who got conducted the test identification parade proceedings on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan, reveals that the appellants Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan were made to sit together in two different rows along with the dummies at different serial numbers, however no separate test identification parade proceedings were conducted with regard to each of the appellants. As mentioned above, the august Supreme Court of Pakistan in the case of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No. 259 of 2018 reported as PLJ 2019 SC (Cr.C) 153 has mentioned the requirements and safeguards which are to be meticulously followed while holding the test identification parade proceedings and one of the requirement is as under:- “(f) if there are more accused persons than one who have to be subjected to test identification, then the rule of prudence laid down by the superior Courts is that separate identification parades should ordinarily be held in respect of each accused person;”
The august Supreme Court of Pakistan has issued guidelines in conducting the identification parade and has clearly held that if there are more accused persons than one, separate identification parade should ordinarily be held in respect of each accused person. The august Supreme Court of Pakistan in case of Hakeem and other Vs. The State (2017 SCMR 1546) at page 1550 while
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enunciating the principles of law relating to the identification parade has held as under:-
“The proper course is to have separate identification parades for each accused”
The august Supreme Court of Pakistan in case of Kamal Din alias Kamala Vs. The State (2018 SCMR 577) at page 580 held as under:- “Apart from that the test identification parade held in this case was a joint parade wherein two accused persons had been made to stand with dummies in two lines and their identification had taken place simultaneously in one go. This Court has also clarified in the cases of Lal Pasand v. The State (PLD 1981 SC 142), Ziaullah alias Jaji v. The State (2008 SCMR 1210), Bacha Zab v. The State (2010 SCMR 1189), Sahfqat Mahmud and others v. The State (2011 SCMR 537) and Gulfam and another v. The State (2017 SCMR 1189) that the identification of many accused in one go is not proper besides being unsafe.”
17.We have also noted with grave concern that the witnesses who joined the test identification parade proceedings (Exh.PJJJ) held on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the test identification parade proceedings (Exh.PRRR) held on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan, did not mention any role of any of the appellants during the occurrence.
During the test identification parade proceedings (Exh.PJJJ) held on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the test identification parade proceedings (Exh.PRRR) held on 02.06.2012 with regard to the appellants namely Sultan
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Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan the witnesses namely Fayyaz Hussain (PW-6), Pervaiz Hussain (PW-7) , Ghulam Raza (PW-8), Moti ul Hassan (PW-9) Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) simply put their hands on the heads of the appellants without disclosing anything regarding their role in the occurrence. Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) during cross-examination admitted as under:-
“ It is correct that no witness attributed the role to any accused.”
Similarly, Zahoor ud Din David, Inspector (PW-30), the Investigating Officer of the case , also admitted during cross-examination as under:- “It is correct that on 15.5.2012 after identification parade, recorded the statements of PWs in which they did not describe the role of any accused.”
The mere fact that witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It merely means that the witness happens to know that accused person. . The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. Such kind of test identification proceedings where the part played by the accused is not given have no legal value. Reliance is placed upon a binding judgment of the august Supreme Court of Pakistan in the case
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titled “MAJEED alias MAJEEDI and others v. The State and others” (2019 S C M R 301) wherein it has been held as under:
“At any rate, in the test identification parade the complainant and two other eye-witnesses had maintained that the appellant had only searched the complainant and some others during the alleged occurrence and they had not attributed any role to the appellant regarding causing of murder of the deceased or causing injuries to others but another eye-witness belonging to the complainant party had maintained that the appellant had also fired at the said witness causing an injury on his lip. Such a conflict between the stands of the eye-witnesses produced by the prosecution vis- a-vis the appellant's role by itself was sufficient to create serious doubts about veracity of the said witnesses.”
The august Supreme Court of Pakistan in the case of Azhar Mehmood and others v. The State (2017 SCMR 135) has held at page 138 as infra:- “.....have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently being held by this Court that such a test identification parade is legally laconic and is of no evidentiary value.”
The august Supreme Court of Pakistan in case of Kamal Din alias Kamala v. The State (supra) held as under:- “It is also pertinent to mention here that the proceedings of the test identification parade brought on the record of this case clearly show that the appellant had not been picked up by the eye witnesses in that parade with reference to any role played by him during the occurrence in issue.”
The august Supreme Court of Pakistan in case of HAKEEM and others v. The State (2017 S C M R 1546) has held as under:-
“This Court in the case of Azhar Mehmood v. State (2017 SCMR 135) has held that in an identification parade, if the accused were identified without reference to any role played by them in the incident, the same is of no evidentiary value. A quote from the judgment of Azhar Mehmood's case is as follows:-
"We have gone through the statements made by the supervising Magistrates, i.e. PW5 and PW10 as well as the proceedings of the test identification parades and have straightaway noticed that in the said parades the present appellants had not been identified with reference to any role played by them in the incident in issue. It has consistently been held by this Court that such a test identification parade is legally laconic and is of no evidentiary value and a reference in this respect may be made to the cases of Khadim Hussain v. The State (1985 SCMR
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721), Ghulam Rasul and 3 others v. The State (1988 SCMR 557), Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Siraj-ul-Haq and another v. The State (2008 SCMR 302), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Shafqat Mehmood and others v. The State (2011 SCMR 537), Sabir Ali alias Fauji v. The State (2011 SCMR 563) and Muhammad Fayyaz v. The State (2012 SCMR 522)"
The august Supreme Court of Pakistan in case of MUHAMMAD PERVEZ and others v. The State and others (2007 S C M R 670) has held as under:- “It is also an admitted fact that role of accused not described by witnesses at the identification parade. Such type of identification lost its value and not relied upon as law laid down by this Court in Ghulam Rasool's case 1988 SCMR 557 and Mehmood Ahmad's case 1995 SCMR 127. It is also an admitted fact that prosecution witnesses had seen the accused persons before the identification parade as mentioned hereinabove, therefore, both the Courts below were not justified to rely such piece of evidence of identification parade.”
The august Supreme Court of Pakistan in case of SABIR ALI alias FAUJI v. The State (2011 SCMR 563) has held as under:-
“It is also settled principle of law that role of the accused was not described by the witnesses at the time of identification parade which is always considered inherent defect, therefore, such identification parade lost its value and cannot be relied upon. See Ghulam Rasul's case (1988 SCMR 557), Mahmood Ahmed's case (1995 SCMR 127) and Khadim Hussain's case (1985 SCMR 721).”
18.Another matter of concern for us is that while holding the test identification parade proceedings, both Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) and Muhammad Amjad Hafeez, Magistrate (PW-28) did not mention the date since when the accused had been arrested and sent to the judicial lock up for the purpose of holding of test identification parade proceedings. As mentioned above, the august Supreme Court of Pakistan in the case of “Criminal Miscellaneous Application No.183 of 2019
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in Criminal Appeal No. 259 of 2018” reported as PLJ 2019 SC (Cr.C) 153 has mentioned the necessities and precautions which are to be punctiliously followed while holding the test identification parade proceedings and one of the necessity is as under:-
“(d) the Magistrate, supervising the identification proceedings, must verify the period, if any, for which the accused persons have remained in police custody after their arrest and before the test identification and must incorporate this fact in his report about the proceedings;”
Muhammad Amjad Hafeez, Magistrate (PW-28) admitted during cross- examination as under:-
“I did not see the warrants (Jadwals) of accused persons to know on which date they were sent to Jail for the purpose of identification parade.”
We ourselves have examined the report (Exh.PJJJ) as prepared by Ch.
Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26), who got conducted the test identification parade proceedings on 15.05.2012 with regard to the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the report (Exh.PRRR) as prepared by Muhammad Amjad Hafeez, Magistrate (PW-28), who got conducted the test identification parade proceedings on 02.06.2012 with regard to the appellants namely Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan and find that both Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26) and Muhammad Amjad Hafeez, Magistrate (PW-28) did not mention the date since when the accused had been sent to the Jail for the purpose of test identification parade proceedings. As mentioned above, Zahoor ud Din David, Inspector (PW-30), the Investigating Officer of the
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case, stated that he had arrested the appellants namely Shabbir Ahmad alias Shabru alias Asim and Muhammad Shakeel alias Abdullah on 04.05.2012 in this case, and arrested the appellants namely Muhammad Usman and Sultan Shahab ud Din on 17.05.2012 in this case as the appellants namely Shabbir Ahmad alias Shabru alias Asim , Muhammad Shakeel alias Abdullah, Muhammad Usman and Sultan Shahab ud Din were already in police custody in other cases and had not been sent to the jail till their arrest in this case.
Zahoor ud Din David, Inspector (PW-30), the Investigating Officer of the case, during cross-examination stated as under:-
“On 02.6.2012 identification parade of accused persons Sultan Shahab-ud-Din and Usman was conducted while on 15.5.2012 the identification parade of accused persons Shakeel and Shabbir was held.
It is correct that on 17.5.2012 accused Sultan Shahab-ud-Din and Usman were arrested in case F.I.R No.294/2012 and F.I.R No.295/2012 respectively and were confined in Police Station Lock-up of City Khanpur.
It is correct that accused persons Shakeel and Shabbir were confined in Police Station Lock-up City Khanpur and I arrested them from Police Station City Khanpur and I produced them before the court for judicial remand for the purpose of identification parade. It is correct that all the PWS of identification parade of case F.I.R No.22/2012 (instant case) except Ghulam Raza are residents of same village. The PWs of identification parade are residents of Basti Galkala which is at a distance of about 04/05 kms from Police Station City
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Khanpur. Almost 15/20 minutes would be consumed to fetch some person from Basti Galkala to Police Station City Khanpur.”(emphasis supplied)
All these facts open up the possibility that the accused were exposed to be viewed by the witnesses prior to the holding of the test identification parade proceedings, rendering the whole proceedings irrelevant with regard to establishing the identities of the appellants.
19.We have also noted that on 15.05.2012 not only one but two test identification parade proceedings had taken place with regard to confirming the identities of the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, however, when confronted , Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26), was found to have deposed during the trial of the case F.I.R No. 23 of 2012 that he had conducted test identification parade proceedings with regard to that case only on 15.05.2012 and had not conducted any test identification parade proceedings with regard to the instant case. Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26), was questioned and the learned trial court observed as under:- “ It is correct that I have already given evidence in case F.I.R No.23/2012 Police Station City Khanpur against the same accused persons regarding identification parade.I did not remember that I stated on 16.3.2015 as PW5 in case F.I.R No.23/2012 that "I conducted only one identification parade on 15.5.2012 and did not conduct identification parade in case F.I.R No.22/2012 on the same day". (At this stage the learned counsel for the accused persons submitted attested photo copy of statement of witness as PW5 in which it is mentioned that "I conducted one identification parade proceedings of this case and did not conduct identification parade proceedings
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in case F.I.R No.22/2012 Police Station City Khanpur on the same day".).”(emphasis supplied)
The above mentioned portion of the statement of Ch. Muhammad Shahzad Anwar, Senior Civil Judge, (PW-26), is in itself sufficient to denude the sham nature of test identification parade proceedings held on 15.05.2012.
20.We have also noted that while appearing before the learned trial court , the prosecution witnesses namely Fayyaz Hussain (PW-6) , Pervaiz Hussain (PW-7), Ghulam Raza (PW-8), Moti ul Hassan (PW-9) Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) did not state that who were the accused they had identified during the different test identification parade proceedings in their statements recorded by the learned trial court. It will be the advantageous to reproduce the relevant portion of the examination in-chief of the prosecution witnesses namely Fayyaz Hussain (PW-6), Pervaiz Hussain (PW-7), Ghulam Raza (PW-8), Moti ul Hassan (PW-9), Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) as recorded by the learned trial court . Fayyaz Hussain (PW-6) stated as under:- “On 06.4.2012 police summoned us to join Identification Parade which was to be held at New Central Jail Bahawalpur on 07.4.2012 and I came at New Central Jail Bahawalpur but could not participate in Identification Parade Proceedings as my ID card was not with me. On 14.5.2012 police again summoned me to participate in Identification. Parade Proceedings scheduled to be held on 15.5.2012 at New Central Jail Bahawalpur. On 15.5.2012 I alongwith Imdad Hussain, Mulazim Hussain, Pervaiz Hussain, Moti-ul-Hassan and Ghulam Raza came to New Central Jail Bahawalpur to participate Identification Parade Proceedings of two accused persons. Magistrate called me inside the Jail for identification of accused persons who were sitting in two rows of dummies comprising 20/22 persons. I identified an accused sitting at position no.6 and other accused sitting at position no.19 who were among the said suspicious persons/accused persons of the occurrence of
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this case who were witnessed by us in suspicious conditions prior to the bomb-blast and were talking with one another. Investigation Officer recorded my statement in this regard.
On 01.6.2012 police summoned us to join Identification Parade. to be held at New Central Jail Bahawalpur on 02.6.2012 and I alongwith Imdad Hussain, Mulazim Hussain, Pervaiz Hussain, Moti-ul Hassan and Ghulam Raza came to New Central Jail Bahawalpur to participate in Identification Parade Proceedings of two accused persons. Magistrate called me inside the Jail for identification of accused persons who were sitting in two rows of dummies comprising 20/22 persons. I identified an accused sitting at position no.6 in row no.1 and another accused sitting at position no.4 in row no.2 among said suspicious 10/12 persons who were witnessed by us in suspicious conditions prior to the bomb- blast and the person sitting at sr.no.4 in row no.2 was the person who was saying prior to the occurrence that 'Aaj in Kafroon ko sabaq miljaiga'. Investigation Officer recorded my statement in this regard.”
Pervaiz Hussain (PW-7) stated as under:-
“On 06.4.2012 police summoned us to join Identification Parade which was to be held at New Central Jail Bahawalpur on 07.4.2012 and I came at New Central Jail Bahawalpur and identified accused sitting at sr.no.8 in first row and accused sitting at sr.no.17 in second row as real culprits of this occurrence, accused of old age is present in court. today. IO recorded my statement in this regard.
On 14.5.2012 police again summoned me to participate in Identification Parade Proceedings scheduled to be held on 15.5.2012 at New Central Jail Bahawalpur. On 15.5.2012 I alongwith Imdad Hussain, Mulazim Hussain, Moti-ul-Hassan, Fayyaz Hussain and Ghulam Raza came to New Central Jail Bahawalpur to participate Identification Parade Proceedings of two accused persons. Magistrate called me Inside the Jail for identification of accused persons who were sitting in two rows of dummies comprising 20/22 persons. I identified an accused sitting at position no.6 and other accused sitting at position no.19 who were
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among the said suspicious persons/accused persons of the occurrence of this case who were witnessed by us in suspicious conditions prior to the bomb-blast and both these accused are present in court today who were talking with one another. Investigation Officer recorded my statement in this regard.
On 01.6.2012 police summoned us to join Identification Parade to be held at New Central Jail Bahawalpur on 02.6.2012 and I alongwith Imdad Hussain, Mulazim Hussain, Fayyaz, Moti-ul-Hassan and Ghulam Raza came to New Central Jail Bahawalpur to participate in Identification Parade Proceedings of two accused persons. Magistrate called me inside the Jail for identification of accused persons who were sitting in two rows of dummies comprising 20/22 persons. I identified an accused sitting at position no.9 in row no.1 and another accused sitting at position no.5 in row no.2 among said suspicious 10/12 persons who were witnessed by us in suspicious conditions prior to the bomb- blast. Investigation Officer recorded my statement in this regard”.
(emphasis supplied)
Ghulam Raza (PW-8) stated as under :-
“On 07.4.2012 I joined identification parade alongwith Imdad Hussain, Mulazim Hussain, Pervaiz Hussain, Fayyaz Hussain, Moti-ul Hassan in Central Jail Bahawalpur. The learned Magistrate was present in the Central Jail. The accused persons were mixed with dummy persons. I placed my hand at the head of a person who was sitting at 8th number. Then I placed my hand at the head of person who was sitting at 17th number. We had seen these persons 07/08 days prior to the occurrence around the Derbar Sharif. They were standing near electric poll. I and Mulazim Hussain were on checking duty at Derbar Sharif. We inquired from above said two persons that who were they
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and they told us that they are WAPDA employees and they had come to maintain electric wires. We had well-identified these persons as we had already seen them at the place of occurrence in the disguise of WAPDA employees.
On 15.5.2012 again identification parade held in the New Central Jail Bahawalpur and I joined identification proceedings alongwith Imdad Hussain, Mulazim Hussain, Pervaiz Hussain, Fayyaz Hussain, Moti-ul- Hassan. I identified the accused who was sitting at 6th number in the first row and the other person was identified by me who was sitting at 19th number in the second row. These are real culprits.
On 02.6.2012 I also joined identification proceedings in the New Central Jail Bahawalpur alongwith Imdad Hussain, Fayyaz Hussain, Mulazim Hussain, Moti-ul-Hassan, Pervaiz Hussain. The learned Magistrate asked us to identify the accused persons who were sitting in lines. I identified the person who was sitting at No.2 in first row and the person who was sitting at 10th number in the second row. These persons were also among the accused persons which we had seen on the day of occurrence. All the accused persons are present in the Court (in Central Jail Bahawalpur) at this time.’(emphasis supplied) Moti ul Hassan (PW-9) stated as under:-
On 07.4.2012 I joined identification parade in the New Central Jail Bahawalpur. The learned Magistrate asked me to identify the accused persons. The accused persons were sitting in lines among the dummy persons. I identified the person who was sitting at 8th number in first row and the person who was sitting at 17th number in the second row.
These persons were real culprits. The 10 recorded my statement u/s 161 Cr.P.C.
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On 15.5.2012 I again came in the Central Jail Bahawalpur to participate in the identification proceedings alongwith Imdad Hussain, Mulazim Hussain, Pervaiz Hussain, Fayyaz Hussain and Ghulam Raza. I identified the person who was sitting at 6th number in first row and the other accused was identified by me who was sitting at 19th number in the second row. I had seen these persons prior to occurrence at the place of occurrence therefore I correctly identified these persons. The IO recorded my statement u/s 161 Cr.P.C.
On 02.6.2012 I also came in the Central Jail Bahawalpur for the purpose of identification parade of accused persons alongwith Imdad Hussain, Fayyaz Hussain, Pervaiz and Ghulam Raza PWS. The learned Magistrate asked me to identify the accused persons who were sitting among the dummies. I identified accused who was sitting at 9th number in first row and the person who was sitting 5th number in second row correctly. These are real culprits, all the accused persons are present in the Court room (in the Central Jail Bahawalpur)
Mulazim Hussain (PW-14) stated as under:-
On 07.4.2012 I joined identification parade alongwith Imdad Hussain, Ghulam Raza, Pervaiz Hussain, Fayyaz Hussain, Moti-ul Hassan in Central Jail Bahawalpur. The learned Magistrate was present in the Central Jail. The accused persons were mixed with dummy persons. I placed my hand at the head of a person who was sitting at 8th number.
Then I placed my hand at the head of person who was sitting at 17th number in second row. We had seen these persons 07/08 days prior to the occurrence around the Derbar Sharif. They were standing near electric poll. I and Mulazim Hussain were on checking duty at Derbar Sharif. We inquired from above said two persons that who were they and they told us that they are WAPDA employees and they had come to
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maintain electric wires. We had well identified these persons as we had already seen them at the place of occurrence in the disguise of WAPDA employees.
On 15.5.2012 again identification parade held in the New Central Jail Bahawalpur and I joined identification proceedings alongwith Imdad Hussain, Ghulam Raza, Pervaiz Hussain, Fayyaz Hussain, Moti ul- Hassan. I identified the accused who was sitting at 6th number in the first row and the other person was identified by me who was sitting at 19th number in the second row. These are real culprits.
On 02.6.2012 I also joined identification proceedings in the New Central Jail Bahawalpur alongwith Imdad Hussain, Fayyaz Hussain, Ghulam Raza, Moti-ul-Hassan, Pervalz Hussain. The learned Magistrate asked us to identify the accused persons who were sitting in lines. I identified the person who was sitting at No.5 in first row and the person who was sitting at 9th number in the second row. These persons were also among the accused persons which we had seen on the day of occurrence. All the accused persons are present in the Court (in Central Jail Bahawalpur) at this time.”(emphasis supplied)
The statement of Imdad Hussain (PW-17) has already been reproduced by us in Paragraph 3 of the judgment. This utter failure of the prosecution witnesses namely Fayyaz Hussain (PW-6) , Pervaiz Hussain (PW-7) , Ghulam Raza (PW-8) , Moti ul Hassan (PW-9) Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) to identify the appellants, present in the same courtroom as the witnesses, during their statements before the learned trial court, with any clarity that which was the accused they had identified in which of the three test identification parade proceedings held in the case, clearly establishes that had the prosecution witnesses namely Fayyaz Hussain (PW-6), Pervaiz
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Hussain (PW-7), Ghulam Raza (PW-8), Moti ul Hassan (PW-9) Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) identified the appellants during the test identification parade proceedings, then the said witnesses would have certainly got their statements recorded with clarity, detailing therein as to which of the accused they had identified during which of the three test identification parade proceedings held in this case. This failure of the prosecution witnesses namely Fayyaz Hussain (PW-6), Pervaiz Hussain (PW-7), Ghulam Raza (PW-8), Moti ul Hassan (PW-9) Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) militates against the whole prosecution case against the appellants. The said prosecution witnesses namely Fayyaz Hussain (PW-6), Pervaiz Hussain (PW-7), Ghulam Raza (PW-8), Moti ul Hassan (PW-9), Mulazim Hussain (PW-14) and Imdad Hussain (PW-17) even did not realize that Wajid Rasheed son of Abdul Rasheed, the other co- accused of the appellants was being tried separately under the Juvenile Justice System Ordinance, 2000, being under the age of eighteen years at the time of occurrence and hence “child” within the definition of Juvenile Justice System Ordinance, 2000 and was not even present at the time of recording of the evidence, still the said witnesses proceeded to state that the accused present in the court room were the real culprits. This aspect of the prosecution case completely denudes the bereft nature of the prosecution evidence against the appellants.
21.The prosecution also got Nadir Hussain (PW-10), Jafar Hussain (PW-11), Abid Hussain (PW-12) and Farhan Abbas (PW-13) examined during the course of trial. The prosecution witnesses namely Nadir Hussain (PW-10), Jafar Hussain (PW-11), Abid Hussain (PW-12) and Farhan Abbas
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(PW-13) stated that they were injured during the occurrence, however, none of these witnesses namely Nadir Hussain (PW-10), Jafar Hussain (PW-11), Abid Hussain (PW-12) and Farhan Abbas (PW-13) either joined the test identification parade proceedings held to establish the identities of the accused nor in their statements recorded by the learned trial court identified the appellants present in the Court as being those whom they had seen near the place of occurrence in a suspicious condition. There was no reason for the said witnesses namely Nadir Hussain (PW-10), Jafar Hussain (PW-11), Abid Hussain (PW-12) and Farhan Abbas (PW-13) of not having named and identified the appellants during their statements recorded by the learned trial court and their failure to do so does raise substantial doubt with regard to the involvement of the appellants in the occurrence. Before us the entire case depends on the identification of the appellants and this identification is founded solely on test identification parades. The learned trial court does not seem to have correctly appreciated the evidentiary value of these parades though they were considered to be the primary evidence in support of the prosecution case. The learned trial court seems to have proceeded on the erroneous legal assumption that it is a substantive piece of evidence and that on the basis of that evidence alone the conviction can be sustained. And then the learned trial court also ignored important evidence on the record in regard to the manner in which the test identification parades were held, and other connected circumstances suggesting that they were held more or less in a mechanical way without the necessary precautions being taken to eliminate unfairness. This is clearly an erroneous way of' dealing with the test identification parades and has caused failure of justice. The learned Deputy
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Prosecutor General laid great emphasis on the fact that there is no enmity shown between the witnesses and the appellants. In our opinion, though this factor is relevant it cannot serve as a substitute for reliable admissible evidence required to establish the guilt of the accused beyond reasonable doubt. The evidence in regard to identification having been discarded by us as legally infirm and which does not connect the appellants with the alleged offences, it cannot by itself sustain the conviction of the appellants.
22.We have also scrutinized the statement of Khadim Hussain (PW-15) who stated that on 24.05.2012, Majid Rasheed and Sami Ullah (both since declared proclaimed offender), the co-accused of the appellants came to visit him and told him that the appellants had committed the occurrence.
Obviously, the said statement allegedly made by Majid Rasheed and Sami Ullah (both since declared proclaimed offender), the co-accused of the appellants, has all the trappings of being a joint extra-judicial confession, which is neither admissible nor relevant. Moreover, Khadim Hussain (PW-
15)claimed to have been present during the occurrence , however, in his statement recorded by the learned trial court, did not state that he had seen any of the appellants present at the place of occurrence. To the contrary Khadim Hussain (PW-15) stated that he had seen 10 /12 suspect persons present at the place of occurrence , however, failed to identify any of the appellants present before the court as being one of those persons. Khadim Hussain (PW-
15)in his statement before the learned trial court stated as under:- “Prior to occurrence we saw 10/12 suspected persons around the Derbar Sharif, they were talking with each other and saying that 'shias are kafer
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if any shia is found, he be killed and in the meantime the occurrence took place. The suspected persons were about 25 to 30 years old while one of them was 50/60 years old. Their height was normal. Police came at the place of occurrence and recorded my statement u/s 161 Cr.P.C..”
There is no explanation as to why the prosecution witness namely Khadim Hussain (PW-15) failed to identify any of the appellants before the learned trial court rather in his statement before the learned trial court stated that some unknown persons had been seen by him at the place of occurrence, when all the appellants were present in the learned trial court at the time of recording of the said statement of Khadim Hussain (PW-15) . Therefore, the evidence of the prosecution witness namely Khadim Hussain (PW-15) has no value and does not prove any fact in issue.
23.The learned Deputy Prosecutor General has laid great stress on the fact that the prosecution witnesses namely Pervaiz Hussain (PW-7), Moti ul Hassan (PW-9), Nadir Hussain (PW-10), Jafar Hussain (PW-11), Abid Hussain (PW-12) and Farhan Abbas (PW-13) were injured during the occurrence and therefore their evidence could not be rejected. We have already enumerated the reasons for which the statements of the prosecution witnesses namely Pervaiz Hussain (PW-7), Moti ul Hassan (PW-9), Nadir Hussain (PW-10), Jafar Hussain (PW-11), Abid Hussain (PW-12) and Farhan Abbas (PW-13) cannot be used to establish the involvement of the appellants in the occurrence. The august Supreme Court of Pakistan has repeatedly held that the stamp of injuries on the person of a witness can be a proof of their presence at the place of occurrence , however, it can never be held that they also will tell truth .It has been held that the facts which an injured witness narrates are not to be implicitly accepted rather they are to be attested and
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appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under:
“ It is settled law that injuries of P.W are only indication of his presence at the spot but are not affirmative proof of his credibility and truth”.
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that presence of injuries does not stamp a witness to be a truthful one.
24.The learned Deputy Prosecutor General has also relied upon the recovery of the Remote Control (P-1) from the appellant namely Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the recovery of the explosive substances from the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh. Admittedly, Zahoor ud Din David, Inspector (PW-30), the Investigating Officer of the case, did not ask any of the residents of the locality from where the said recoveries were made to witness the same.
As the Investigating Officer of the case, did not join any witness of the locality during the recovery of the Remote Control (P-1) from the appellant namely Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the recovery of the explosive substances from the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, which was in clear violation of section 103
Capital Sentence Reference No.4 of 2017.
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Criminal Appeal No. 524-ATA of 2017.
Criminal Appeal No. 526-ATA of 2017.
Cr.PC , therefore the same cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:-
“For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”
Moreover, Zahoor ud Din David, Inspector (PW-30), the Investigating Officer of the case, admitted during cross-examination that the Remote Control (P-1) allegedly got recovered by the appellant namely Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh was neither secured through a sealed parcel nor the same was sent to the Punjab Forensic Science Agency, Lahore to determine as to whether it was in working condition or otherwise. Zahoor ud Din David, Inspector (PW-30) , the Investigating Officer of the case, admitted during cross-examination, as under:-
“It is correct that remote P1 allegedly recovered from Shakeel accused was not secured through a sealed parcel. It is correct that P1 is wrapped with white coloured paper and solution tape. I did not get checked workability of Pl.”
With regard to the recovery of the explosive substances from the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh we find that the same could also not be proved. The prosecution got Khadim Hussain (PW-
15)examined as witness of the recovery of the explosive substances from the appellant namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam
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Muhammad , however Khadim Hussain (PW-15) did not state anything that on 28.05.2012, the appellant namely Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh also led to recovery of any explosive substance, through Zahoor ud Din David, Inspector (PW-30) , the Investigating Officer of the case, had claimed so. Furthermore, during the course of cross-examination it was proved on record that there did not exist any statement of Khadim Hussain (PW-15) with regard to the recovery of the explosive substances from the appellant namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad. Khadim Hussain (PW-15) was questioned in this regard and the learned trial court observed as under:-
“I joined Investigation on 28.5.2012 and gave statement to police. It is incorrect that I did not join investigation on 28.5.2012. It is also incorrect that I did not give any statement to police on 28.5.2012. (At this stage the learned counsel for the accused persons submitted that the witness did not join investigation on 28.5.2012. As the statement of witness dated 28.5.2012 was not delivered to accused persons. The learned DPG and the learned counsel for the complainant were asked to show the statement of witness dated 28.5.2012 bit (sic) they both failed to produce the statement of witness dated 28.5.2012 and stated that the statement of witness dated 28.5.2012 is not on the police file)” (emphasis supplied) .
Zahoor ud Din David, Inspector (PW-30) , the Investigating Officer of the case, also admitted during cross-examination that Khadim Hussain (PW-15) had not joined the recovery proceedings undertaken by him with regard to the recovery of explosive substances from the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel
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alias Abdullah son of Hazoor Bakhsh. Zahoor ud Din David, Inspector (PW-
30), the Investigating Officer of the case, admitted during cross-examination as under:-
“It is correct that on 28.5.2012 I did not associate Khadim Hussain and Mohammad Imran in investigation and therefore, I also did not record their statements.”
Therefore, the recovery of the Remote Control (P-1) from the appellant namely Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh and the recovery of the explosive substances from the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, do not further the case of the prosecution in any manner and the same cannot be used as a circumstance against the appellants.
25.The only other piece of evidence left to be considered by us is the medical evidence but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution in this case have been disbelieved and discarded by us, therefore, the appellants’ conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled “Hashim Qasim and another Vs. The State” (2017 SCMR 986) has enunciated the following principle of law:
“The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit.”
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The august Supreme Court of Pakistan in its binding judgment titled “Naveed Asghar and two others Vs. The State” (P L D 2021 Supreme Court 600) has enunciated the following principle of law:
“31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners.”
26.The plea of the learned Deputy Prosecutor General that because the complainant party was having no enmity to falsely implicate the appellants in such a heinous crime thus, the evidence adduced should be believed, is entirely a misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this
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regard may be placed on the case of “Waqar Zaheer vs. The State” (1991 PSC 281). It is a known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without a shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw a conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges, so imputed against the accused, have not been proved beyond a reasonable doubt, then the accused becomes entitled to acquittal. In such a situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused is entitled to the benefit of the doubt the Court can conclude on considering the agglomerated effect of the evidence available on record as held in the cases of “Safdar Ali v. The Crown” (PLD 1953 FC 93) and “Muhammad Luqman v. The State” (PLD 1970 SC 10). In the instant case we have scanned the prosecution evidence in-depth and we are persuaded to hold that the prosecution has failed to produce trustworthy, confidence-inspiring and consistent evidence against the appellants. Conversely, the evidence so brought on record appears to have been fabricated to prove the prosecution case. Even otherwise the prosecution evidence suffers from material discrepancies, contradictions and omissions and for such reasons it has not proved the case against the accused persons intrinsically and if the evidence of such defective quality is accepted it would produce an illusory judgment which apparently would not be sustainable in the eyes of the law in view of the principles laid down by the august Supreme Court of Pakistan in the judgments referred to hereinabove. Even otherwise the prosecution evidence is inconsistent and flawed, thus, on basis of the same,
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appellants cannot further be immured because they have every right to claim guarantee of the Constitution which provides that every citizen of the country shall be dealt with in accordance with the law.
27.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad, Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan in the present case.
It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” ( 2018 SCMR 772) has enunciated the following principle:
“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right.”
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muhammad Akram Vs. the State (2009 SCMR 230) in which it has been observed in paragraph No.13 of page 236 as infra:
“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.”
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28.For what has been discussed above, Criminal Appeal No. 529-ATA of 2017 lodged by the appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad and Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh is allowed. The Criminal Appeal No. 524-ATA of 2017 lodged by the appellant namely Sultan Shahab ud Din son of Bashir Ahmad is also allowed. The Criminal Appeal No. 526-ATA of 2017 lodged by the appellant namely Muhammad Usman son of Haji Rustam Khan is likewise allowed. The conviction and sentences of Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan (appellants) awarded by the learned trial court through the impugned judgment dated 28.10.2017 are hereby set-aside.
Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad , Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan (appellants) are ordered to be acquitted by extending them the benefit of doubt. The appellants namely Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad, Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan are in custody and they are directed to be released forthwith if not required in any other case.
29.It is made clear that the observations made in this judgment shall not be relevant during the trial of the absconding co-accused namely Majid Rasheed and Sami Ullah (since declared proclaimed offenders) and their case
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shall be decided on the basis of the evidence adduced during the trial by the parties (prosecution and defence), strictly in accordance with the law.
30.Capital Sentence Reference No.04 of 2017 is answered in Negative and the sentences of death awarded to Shabbir Ahmad alias Shabru alias Asim son of Ghulam Muhammad, Muhammad Shakeel alias Abdullah son of Hazoor Bakhsh, Sultan Shahab ud Din son of Bashir Ahmad and Muhammad Usman son of Haji Rustam Khan, are Not Confirmed.
(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)
JUDGE JUDGE
APPROVED FOR REPORTING
JUDGE JUDGE
Raheel/*
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