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Petitioner: MUHAMMAD ISHAQ and anothers VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, Muhammad Farrukh Mehmood Title: MUHAMMAD ISHAQ and anothers vs THE STATE Case No.: Criminal Appeals. Nos.15 and 17 of 1999 Date of Judgment:2001-09-19 Reported As: 2002 P Cr. L J 416 Result: Order accordingly
JUDGMENT
JUDGMENT ' ASIF SAEED KHAN KHOSA, J.--- Terrorism is a marble-hearted fiend which more often than not preys on innocent lives rather than targetted individuals. In the present case as well the victims were people who had caused no personal injury, insult or offence to their assailants and the bodily safety of these innocent victims had been sacrificed at nothing but the alter of heartless sectarianism. The brutal, gruesome and macabre fashion in which a blood bath of innocent persons took place in this case is detailed in the following paragraph. 2. At about 3-00 p.m. On 20-9-1998 an annual Majlis was in progress at Imam Bargah Haideria in Basti Serai, Mauza Bhambhar Mustaqil, Tehsil Kot Addu, District Muzaffargarh when suddenly four persons armed with Kalashnikovs riding on two motorcycles emerged there and opened fire at the participants of the Majlis and soon thereafter decamped therefrom after achieving their objective. As a result of that firing two persons namely Zulfiqar Hussain and Manzoor Hussain lost their lives at the spot whereas nine other persons namely Khuda Bakhsh, Allah Dewaya, Elahi Bakhsh, Ghulam Raza, Allah Dewaya, Sabir Hussain, Ahmad Bakhsh, Fida Hussain and Muhammad Qasim received serious bullet injuries on various parts of their bodies. Two of the four assailants were identified at the spot as Muhammad Ishaq and Riaz Hussain, the appellants herein, whereas the other assailants could not be recognized. It was suspected by the complainant party that the said assailants had perpetrated the said gruesome offences at the behest of Qari Farooq Ahmad and Hafiz Ghulam Shabbir accused. Leaving the dead bodies at the spot and after arranging for dispatch of the injured persons to the hospital Fazal Hussain complainant left for reporting the matter to the police.
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3. F.I.R. No,538 (Exh.P.R.) was lodged by Fazal Hussain complainant (P.W.5) at Police Station Kot Addu, District Muzaffargarh at 3-30 p.m. On the same day, i,e, 20-9-1998 for offences under sections 302/34/109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997. That F.I.R. Was recorded by Muhammad Ramzan, S.-I. (P.W.13). 4. After recording the F.I.R. Muhammad Ramzan, S.-1. (P.W.13) took up the investigation of this case and proceeded to the place of occurrence, prepared injury statements and inquest reports in respect of the two deceased and sent the dead bodies to the mortuary for autopsy. Later on he received the medico-legal reports in respect of the injured persons after their medical examination at the hospital. He also prepared a rough site plan of the place of occurrence, collected blood- stained earth from various places, collected the crime-empties available at the spot and then subsequently got a former site plan prepared by a Patwari. 5. At 4-00 p.m. On 20-9-1998 Dr. Masood Malik (P.W.1) medically examined Allah Dewaya (P.W.11), Ghulam Raza (P.W.10), Khuda Bakhsh deceased before he died, Sabir Hussain (P.W.19), Muhammad Qasim (D.W.2), Ahmad Bakhsh (P.W.20), Elahi Bakhsh deceased before he died, Fida Hussain P.W. And Allah Dewaya deceased before he died. The doctor had found various injuries on different parts of the bodies of the said injured persons all of which had been caused by fire-arm within a duration of about 2 to 3 hours. The same doctor had also conducted post-mortem examinations on the dead bodies of Zulfiqar and Manzoor Hussain at 10-30 p.m. And 11-30 p.m. Respectively on 20-9-1998 finding various fire-arm injuries on the dead bodies having been caused within a duration of 8 to 12 hours and 9 to 12 hours respectively. Three of the injured persons namely Khuda Bakhsh, Elahi Bakhsh and Allah Dewaya subsequently died. Post-mortem examinations of the dead bodies of Khuda Bakhsh and Allah Dewaya were conducted by Dr. Nasir Javed (P.W.15) on 20-9- 1998 and 4-10-1998 respectively. The doctor had found various fire-arm injuries on the said dead bodies. No post-mortem examination was, however, conducted vis-a-vis Elahi Bakhsh deceased. 6. After the post-mortem examination of different deceased Muhammad Ramzan, S.-I. (P.W.13), the Investigating Officer, received their last-worn clothes and the relevant documents pertaining to the postmortem examinations. 7. The investigation of this case was subsequently taken over by Abbas Haider, S.-I. (P.W.14) who then received the formal site plan from the Patwari, got a post-mortem examination conducted on the dead body of Allah Dewaya , received the relevant documents pertaining to that post-mortem examination and the last-worn clothes of the deceased' and recorded the statements of witnesses under section 161, Cr.P.C. On 26-10-1998 he arrested Muhammad Ishaq, Riaz Hussain, Qari Farooq Ahmad and Hafiz Ghulam Shabbir accused and then submitted an incomplete challan before the Court on 28-10-1998 in respect of Qari Farooq Ahmad and Hafiz Ghulam Shabbir accused whereas another incomplete challan in respect of Muhammad Ishaq and Riaz Hussain accused was submitted by him before the Court on 12-11-1998. 8. During the investigation of this case Abdur Rehman, Ashiq Hussain and Abdul Latif were also found to be involved in the alleged offences but upon failure of the police to arrest them they were declared to be proclaimed offenders and they were tried by the learned trial Court in absentia after appointing a learned counsel to defend them at State expense. 9. At the commencement of the trial the learned trial Court framed a charge with nine heads against all the seven accused persons under sections 148/149, 302/149, 302/149, 302/149, 302/149, 302/149, 324/149, 302/109 and 324/109, P.P.C. Read 'with section 7(i) and (ii) of the Anti-Terrorism Act, 1997. All the accused persons pleaded not guilty to the charge and claimed a trial. 10. During the trial the prosecution produced as many as 21 witnesses in support of its case. The ocular account of the incident in question was furnished by Fazal Hussain complainant (P.W.5), Khadim Hussain (P.W.6), Ijaz Ahmad Shah (P.W.7), Ali Raza alias Ghulam Raza (P.W.10), Allah Dewaya (P.W.11), Sabir Hussain (P.W.19) and Ahmad Bakhsh (P.W.20). The last four of these seven
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eye-witnesses produced by the prosecution were injured witnesses who had received injuries during the occurrence in question. Ghulam Abbas (P.W.8) and Ashiq Hussain (P.W.9) had stated about the alleged abetment provided by Qari Farooq Ahmad accused. The medical evidence was provided by Dr. Masood Malik (P.W.1) and Dr. Nasir Javed (P.W.15). Khadim Hussain (P.W.6) and Ijaz Ahmad Shah (P.W.7) had also deposed about the recoveries affected by the Investigating Officer from the place of occurrence including the blood-stained earth and the crime-empties. Muhammad Ramzan, S.-I. (P.W.13) and Abbas Haider, S.-I. (P.W.14) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature. 11. In their statements recorded under section 342, Cr.P.C. All the accused persons denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While answering a question as to why he had been implicated in this case Muhammad Ishaq accused had stated as follows:-- "I am cldsely related, to Ghulam Shabbir co-accused, who contested recent elections of Distpct Council, in the constituency of complainant party against Rai Ghulam Abbas. During the election a' quarrel took place between me, Fazal and Khadim P.Ws. Due to political and religious differences and due to closely related with the Shabbir co-accused, the P.Ws. Deposed against me. I was not present at the place and time of occurrence. No injured persons and no relatives of the deceased except Ijaz P.W. Deposed against me. There was allegedly crowd of spectators who were present at the place and time of occurrence but none of them except two P.Ws. Deposed against me. I was present at the time of occurrence on my shop situated in the Basti Pirhar. A large number of people from my Basti and from the attendants of Majlis deposed in my defence before the police in this case." ' While answering another question as to why the prosecution witnesses had deposed against him Muhammad Ishaq accused had responded as follows:-- "Due to close relationship, they deposed against me." ' While answering a question as to why he had been implicated in this case Riaz Hussain accused had maintained as follows:-- "My agricultural land is adjacent to the complainant, there was dispute which was admitted by the complainant in the cross-examination and Sipper is also pending in the Honourable High Court between my relatives and Sarai Brathery. I was present at the time of alleged occurrence with the. Tableegbi Jamat ({{URDU TEXT}}). I was not present at the place and time of occurrence. No incriminating articles were recovered from me, while police detained me with them for a long time and obtained full opportunity of physical remand." ' While responding to the question as to why the prosecution witnesses had deposed against him Riaz Hussain accused had stated as follows:-- "The P.Ws. Are close relatives of the complainant, due to this reason they deposed against me." ' All the accused persons had opted not to make any statement on oath under section 340(2), Cr.P.C. However, five witnesses were produced by them in their defence. Muhammad Iqbal (D.W.1) deposed that Ijaz Ahmad Shah (P.W.7) was not present at the spot at the relevant time as he was present elsewhere at that time. Muhammad Qasim (D.W.2) stated about his getting injured during the incident in question but stated that the culprits had not been identified by anybody at the spot. Saeed Ahmad (D.W.3) had also maintained that he was present at the spot while attending the Majlis and the culprits who had perpetrated the offences in question had not been identified by anybody during the occurrence. Muhammad Usman (D.W.4) stated about an alibi of Riaz Hussain accused whereas Abdur Rashid (D.W.5) stated about an alibi of Muhammad Ishaq accused. 12. Upon conclusion of the trial the learned Judge, Special Court constituted under the Anti- Terrorism Act, 1997, Dera Ghazi Khan Division, Dera Ghazi Khan convicted Muhammad Ishaq and
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Riaz Hussain accused on five counts each of an offence under section 302, P.P.C. Read with section 7 of the Anti-Terrorism 'Act, 1997 and sentenced both of them to death each on five counts. They were also ordered to pay a sum of Rs,2,00,000 each on every count to the heirs of each deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to suffer simple imprisonment for six months each on each count. Both Muhammad Ishaq and Riaz Hussain accused were also convicted on six counts each of an offence under section 324, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 and were sentenced to rigorous imprisonment for ten years each on six counts and to pay a fine of Rs,1,00,000 each on each count or in default of payment thereof to undergo simple imprisonment for six months each on each count. Through the same judgment the learned trial Court acquitted Qari Farooq Ahmad, Hafiz Ghulam Shabbir, Abdur Rehman, Ashiq Hussain and Abdul Latif accused. Muhammad Ishaq and Riaz Hussain convicts have challenged their convictions and sentences before this Court through Criminal Appeal No,15 of 1999. The State has also filed Criminal Appeal No,17 of 1999 before this Court seeking setting aside of the acquittal of the abovementioned five accused persons. We have heard both these appeals together and we propose to decide both these appeals through the present consolidated judgment. 13. We have heard the learned counsel for Muhammad Ishaq and Riaz Hussain appellants as well as the learned counsel for the State who has been assisted by a learned Assistant Advocate- General. The record of this case has also been minutely examined by us with the help of the learned counsel for the parties. 14. In support of the appeal filed by Muhammad Ishaq and Riaz Hussain appellants it has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. For the sake of keeping the record straight it is hereby recorded that the following arguments, and no other argument, have been advanced by the learned counsel for the appellants in Criminal Appeal No,15 of 1999; (i) the appellants do not contest the time and place of occurrence fixed by the prosecution but the appellants were not the ones who had perpetrated the offences in question; (ii) both the appellants were residents of the same vicinity and were very well-known to the complainant party of this case and, therefore, it was inconceivable that they would not have made any attempt to conceal their identities by muffling their faces if they were to commit the said offences; (iii) all the four injured eye-witnesses produced by the prosecution had admittedly not identified the assailants and even before the learned trial Court they had not named the appellants to be the culprits; (iv) the other three eye- witnesses produced by the prosecution, including the complainant, were inimically disposed towards the appellants and thus, they could not be safely relied upon for the purposes of recording or maintaining the appellants' convictions, especially when admittedly thousands of other disinterested persons were available at the spot at the relevant time but none of them had come forward to implicate the appellants; (v) the ocular account furnished by the prosecution had not received any independent corroboration either from recovery of weapons or from the alleged abetment provided to the appellants by their co-accused; (vi) some of the injuries found on the dead bodies of Zulfiqar and Manzoor Hussain deceased had burning on them which showed that they had received their injuries from a very close range but as against that the non-injured eye- witnesses, according to the site plan (Exh.P.Q.), were available at a distance of more than 200 Karams which had made it impossible for them to witness the causing of the injuries to Zulfiqar and Manzoor Hussain deceased; (vii) Ijaz Ahmad Shah (P.W.7) had maintained that his brother Zulfiqar deceased had been hit at a place which was situated 18 Karams away towards the East of the place of presence of the said witness but according to the site plan (Exh.P.Q.) the distance between the place of presence of P.W.7 and the place of death of Zulfiqar deceased is- about 200 Karams and the latter place is situated towards the North of the former place; and (viii) the
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prosecution had failed to prove its case against the appellants beyond reasonable doubt and, therefore, the appellants ought to be acquitted of the charge. It is also pertinent to mention here that the learned counsel for the appellants has categorically stated before us that he does not press the plea of alibi taken by the appellants before the learned trial Court. As against the arguments of the learned counsel for the appellants the learned counsel for the State in Criminal Appeal No,15 of 1999 has maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt through cogent and reliable evidence and, therefore, the appellants' convictions and sentences may be maintained by this Court. While advancing arguments in support of Criminal Appeal No,17 of 1999 filed by the State against the acquittal of Qari Farooq Ahmad, Hafiz Ghulam Shabbir, Abdur Rehman, Ashiq Hussain and Abdul Latif accused it has half- heartedly been argued by the learned counsel for the appellant/State that the learned trial Court was not justified in recording the said accused persons' acquittal. 15. After hearing the learned counsel for the parties and going through the record we have arrived at a confident conclusion that the prosecution had indeed succeeded in proving its case against Muhammad Ishaq and Riaz Hussain appellants beyond reasonable doubt. As already observed above the time and place of the occurrence have not been challenged by the appellants. It has also not been questioned that the injuries had been caused in this case by the assailants with the weapons which were alleged in the F.I.R. And in the statements made by the eye-witnesses. The occurrence in this case had taken place in broad daylight and the F.I.R. In respect of the incident in question had been lodged with sufficient promptitude wherein the names of both Muhammad Ishaq and Riaz Hussain appellants had been duly mentioned with all the necessary details vis-a- vis the role played by them during the occurrence. Fazal Hussain complainant (P.W.5) is admittedly not related either to the deceased or to the injured persons in this case. His presence at the place of occurrence was quite natural inasmuch as his status of being the Mutwalli of the Imam Bargah in question had never been contested by the defence in this case. It would be nothing but natural and in accord with the normal course of things that the Mutwalli would be present at an annual Majlis at the said Imam Bargah. A Mutwalli of a religious institution is generally considered to be a pious person in whose truthfulness and strength of character relevant community has reposed confidence. The said confidence of the relevant community in Fazal Hussain complainant's integrity and truthfulness has been found by us to be well-founded inasmuch as he had only nominated the two appellants as the actual perpetrators of the offences in question whereas any other person having lesser regard for truth could have nominated a larger bunch of culprits for sharing the responsibility of an occurrence wherein five persons had lost their lives and six others had received injuries. Even to the extent of the alleged abettors' role Fazal Hussain complainant was quite candid in his statement made before the learned trial Court by maintaining that he did not himself see or hear the said abettors conspiring but that he was told about the same by others. This showed that Fazal Hussain complainant was not interested in spreading the net wide so as to satisfy any private or other vendetta and that he was God-fearing enough not to implicate anybody positively against whom he was not sure himself. The site plan (Exh.P.Q.) produced in evidence by the prosecution, and not contested as incorrect by the defence, clearly showed that the Dera of Fazal Hussain complainant was situated quite close to the Imam Bargah in question and the same was situated on the southern side of the Imam Bargah on a Pacca road. The prosecution's case that the assailants had approached the place of occurrence from the southern side of the Imam Bargah while riding on motorcycles and travelling on the abovementioned Pacca road has not been disputed by the defence. Thus, the opening of the fire by the culprits just outside the Dera of Fazal Hussain complainant stands established and it is, therefore, believable that the complainant stood attracted to the said development immediately upon approaching of the culprits to the scene of the crime. The culprits had then indiscriminately sprayed bullets at the
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assemblage of the congregation while speeding on their motorcycles on that Pacca road towards the North. A glance at the site plan (Exh.P.Q.) shows that after having been attracted by the initial fire-shots Fazal Hussain complainant could conveniently see the culprits throughout their route and throughout the firing being made by the assailants. After having witnessed the entire occurrence from its inception to culmination Fazal Hussain complainant had promptly reported the matter to the police wherein he had nominated the present appellants and none else for the firing that he had witnessed. The arguments advanced by the learned counsel for the appellants before this Court unmincingly acknowledge that Fazal Hussain complainant knew both the appellants personally. Even the assertion regarding animosity between Fazal Hussain complainant and the present appellants goes a long way in suggesting that the appellants could not seriously maintain that Fazal Hussain complainant did not know them personally. 16. The learned counsel for the appellants has laid great emphasis on the fact that Abbas Haider, S.-I. (P.W.14), one of the Investigating Officers, had stated in so many words that Fazal Hussain complainant and the appellants were on inimical terms due to an agricultural dispute between them and a political rivalry as well as on account of a dispute over a Sipper. In this context it has been noticed by us that while suggesting a landed dispute as well as a dispute over a Sipper between the complainant and Riaz Hussain appellant the defence had never established as to how old those disputes were and whether the said issues were still live issues or not. It had also been suggested by the defence that there was a dispute between Muhammad Ishaq appellant and Fazal Hussain complainant over an election rivalry but once again the defence had failed to establish as to how recent or remote the said dispute was so as to show that there was any live interest for the complainant to falsely implicate the said appellants in a case of this nature. It is critically important to observe in this context that all these suggestions had been denied by the complainant and except for generalized suggestions made by the defence in that regard the said factual aspects had never been established by the defence through any independent evidence. It may also not be out of place to observe that Fazal Hussain complainant, as already mentioned above, was the Mutwalli of the Imam Bargah in question and by virtue of that status he was a trusted person of his community. The massacre taking place during the annual Majlis at that Imam Bargah could hardly allowed by the said community to be used by Fazal Hussain complainant for settling his personal scores with the present appellants. In this view of the matter it is not readily believable that the complainant would falsely implicate the present appellants wizen the appellants had not actually been seen at the spot to be the firing assailants. 17. Fazal Hussain complainant had made a straightforward statement before the learned trial Court and the defence had remained unable to shake his credibility during cross-examination. 18. Khadim Hussain (P.W.6) had also provided the ocular account of the occurrence in this case. He is also not related to any of the deceased or to the injured persons. He had also categorically and emphatically named the present appellants to be the actual perpetractors of the said offences. Khadim Hussain (P.W.6) is a public servant and no direct motive had been attributed to him so as to falsely implicate the appellants in a case of this nature. He too had made a forthright statement before the learned trial Court which had not been shaken during his cross-examination. 19. Although Ijaz Ahmad Shah (P.W.7) is a real brother of Zulfiqar deceased but he too had not been suggested any direct motive for false implication of the appellants in this case. It may be true that Ijaz Ahmad Shah (P.W.7) lived and worked at/a place situated at some distance from the place of occurrence but he had explained the circumstances of his presence at the place of occurrence at the relevant time and his explanation in/that regard had not been seriously questioned by the defence. The ocular account of the incident provided by this witness was also straightforward and he too had stood the test of cross-examination as nothing materially favourable to the defence could be elicited from him The only criticism of this witness advanced by the learned counsel for
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the appellants before us was that this witness is a Shia by sect and, thus, he was motivated to falsely involve the appellants in this case as the appellants belong to the Sunni sect. This argument, we are constrained to observe, is too generalized and flimsy to be accepted so as to discard the statement of an eye-witness of a tragedy of such a magnitude. 20. The learned counsel for the appellants is quite right in maintaining that all the injured witnesses produced by the prosecution, i,e, Ali Raza alias Ghulam Raza (P.W.10), Allah Dewaya (P.W.11), Sabir - Hussain (P.W.19) and Ahmad Bakhsh (P.W.20) had not nominated the present appellants to be perpetrators of the alleged offences. However, while advancing the said argument the learned counsel for the appellants has overlooked the stark fact that all the…
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