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Petitioner: HASSAN RAZA and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khawaja Muhammad Sharif, Riaz Kayani Title: HASSAN RAZA and others vs THE STATE Case No.: Criminal Appeal No,65 of 1998 Date of Judgment:1999-02-25 Reported As: 1999 P Cr. L J 1281 Result: Order accordingly
JUDGMENT
JUDGMENT ' RIAZ KAYANI, J.--- Hassan Raza son of Nazar Hussain, Ijaz Hussain son of Tasawar Hussain, Malik Ijaz Hussain alias Heavy alias Panda son of Malik Khadim Hussain; Falak Sher alias Falki alias Doctor son of Ghulam Mustafa, Asad Raza alias Haider Ali Langra son of Haider Raza and Agha Muhammad. Ali alias Shabbar Hussain son of Mazhar Hussain, all the appellants have called in question the judgment of Special Court, Anti-Terrorism, Multan-I, dated 16-12-1998 whereby all of them were convicted on twenty-two counts under section 302/149, P.P.C. And each one of them was sentenced to death. They were also fined to pay Rs,1,00,000 each which after realization, had to be distributed equally amongst the heirs of the deceased. In default of payment of fine, they were further sentenced to undergo five years' R.I. Each. The appellants were also convicted under section 324, P.P.C. For causing injuries to 39 persons and each one of them was sentenced to 10 years' R.I. They were further convicted under sections 295 and 148, P.P.C. And each one of them was sentenced to two years and three years' R.I. Respectively. 2. Prosecution version as disclosed in the complaint (Exh.P.A.) lodged by Qari Muhammad Ayub-ur- Rehman Jalindhari, Manager, Jamea Khair-ul-Uloom, Jamea Masjid Al-Khair, Mumtazabad, Multan is that he is the Manager of Jamea Khair-ul-Uloom, Mumtazabad, Multan. He also manages the attached mosque known as "Masjid Al-Khair". On 23-9-1996 he was leading the Fajar prayer. At about 5-35 a.m. During the first "Rikaat" of the prayer, "Soorah Fateha" was being recited when all of sudden firing started disturbing the congregation offering the prayer. He saw four persons, each one of them armed with Kalashnikov rifles, who entered the mosque from the eastern gate and started firing. Many Amazes were hit and fell on the courtyard of the mosque. Some of the Amazes ran towards the hall of the mosque to take refuge but were chased by the assailants and were
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injured there. The complainant was also injured. The bullets hit the walls of the mosque. After that all the four accused/assailants left the mosque from its main gate along with their Kalashnikov rifles and boarded a car which was standing outside the mosque with its engine already in a start condition and a fifth person was already sitting in the driving seat. All five of them went away. Thirteen (13) Amazes died at the spot. He along with many other Amazes, who were injured, were admitted to Nishtar Hospital, Multan. Some injured were in a precarious condition. All the Amazes and the injured saw this occurrence. The attack on "Masjid-Al-Khair" and the Namazies offering prayer was the result of pre-planned conspiracy engineered by militant group of "Ahle-Tashee", who were responsible for this bloodshed and caused murder and injuries to many Amazes. 3. This written complaint Exh.P.A. Was given to Muhammad Mumtaz (P.W.41), S.H.O. Police Station, Mumtazabad at Instar Hospital, Multan by Qari Ayub-ur-Rehman, when he reached after receiving information about the incident. The complaint was sent to Police Station Mumtazabad through Muhammad Younis, Constable No,1661 and formal F.I.R. Exh.P.A./1 was registered on the same day at 8 a.m. By Allah Bakhsh, Moharrir/Head Constable. 4. This ghastly carnage resulted in the death of 13 Namazies at the spot and seven at Nisthar Hospital, Multan; two more Namazies namely Jameel-ur- Rehman and Qari Muhammad Ayub-ur- Rehman, complainant died subsequently. The dead bodies of all the Amazes were duly identified by their near and dear ones. However, all of them requested the District Magistrate, Multan through individual applications that they do not want autopsy to be performed on the dead bodies. Their applications to this effect were entertained by Hafiz Muhammad Ilyas, Magistrate, Multan (C.W.25) and Junaid Iqbal, Deputy Commissioner/District Magistrate, Multan (C.W.26). After getting police reports on the applications, they were allowed dispensation of the postmortem of the dead bodies and consequently dead bodies were removed and buried. 5. Thirty-nine Namazies were injured. Out of them 25 were examined in Court. They testified that they were offering Fajar prayer when firing broke out in the mosque and as a result they were injured but expressed their inability to identify the culprits, who fired at them. 6. Dr. Muhammad Dawar Amin Chughtai, (P.W.19), Casualty Medical Officer, Nishtar Hospital, Multan examined all 39 injured Namazies and all of them were found to have fire-arm wounds on their persons. There is no need to reproduce the injuries of each one of the 39 injured Namazies in this judgment because none of the 25 injured Namazies, who were examined by the trial Court, involved either the accused/appellants or anyone else. However, the fact that they were offering Fajar prayer at "Masjid Al-Khair" and were injured due to violence committed by firing goes undisputed. 7. Initial investigation was conducted by Muhammad Mumtaz, S.H.O., Police Station, Mumtazabad (P.W.41). He prepared the injury statements of the injured persons which are Exh.P.XX/A to Exh.P.LLLL/A at the Nishtar Hospital, Multan where the injured were admitted. Thereafter, he proceeded to "Masjid Al-Khair" and saw the dead bodies of the deceased lying on the floor of the mosque. He prepared the inquest report of the deceased and the dead bodies were dispatched to the hospital under the escort of Constables, Rizwan, Ghulam Mustafa, Muhammad Younis and other constables. On the same day he secured blood underneath the dead bodies and from the place where the other Namazies were injured vide recovery memos. Exh.P.S. To Exh.P.JJ., respectively. He also took into possession five large size "Safari" P.6/1-5, five small size bloodstained Safain P.7/1-5, seven blood-stained mats P.8/1-7 and two cotton Durries, blood-stained, P.9/1-2 vide recovery memo. Exh.P.MM. The Investigating Officer also took into possession 29 crime-empties P.4/1-29 which were made into sealed parcel vide recovery memo. Exh.P.KK. A lead bullet P.5 was also taken into possession vide recovery memo. Exh.P.LL. He recorded the statement of the witnesses under section 161, Cr.P.C. And in the light of their statements he started further investigation. The investigation revealed that one accused was stated to be Agha whereas the
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others were Mushtaq, Doctor and Asad. He also found during the investigation that Hassan Raza Shamsi and Ijaz tlussain, gunman, were stated to .Be the accused on whose instance the occurrence had taken place. He received medico-legal reports of the injured from the doctor (P.W.19). He received a list of militant belonging to "Sipah-eMuhammad" from the Security Branch, Multan, on 23-9-1996. On 24-9-1996 he got prepared the scaled plan of the place of occurrence from Irfan Hayat, Draftsman (P.W.2) which are Exh.P.B., Exh.P.B./1 and Exh.P.B./2. On the same day he was told by his secret branch that they heard a telephone call where two persons namely Khizar Abbas and Aun Raza were having conversation and telling that some persons have gone to hell as result of the firing in Masjid-alKhair. On receiving this information, Bashir Moman of Jamiaul- Muthari Shahidi and Iqtidar, Khizar Abbas and Aun Raza were interrogated. Iqtidar disclosed that doctor's complete name was Dr. Ali Raza: Iqtidar Shah was interrogated liy him and he disclosed that two persons, who committed the bloodshed in Masjid Al-Khair, had come in a car outside the main gate of Jamia Muthari Shahidi about 2/3 bights earlier but did not enter into the Madrassa. Iqtidar disclosed that Dr. Ali Raza resident of Shorewood was a proclaimed offender, who used to come to him and besides that he knew nothing about any other accused. He handed over all the parcels of blood, empties, lead bullet, Suffa and Darries to Morris/Head Constable of Police Station, Mumtazabad for safe custody and onward transmission to the concerned quarter for examination. On 25-9-1996 statement of Zulfiqar (P.W.55) was recorded at the spot. On 12-11-1996 he arrested Hassan Raza accused and got a Suzuki Car bearing No,9911/MNL, P.1, Diary P.2, Identity Card P.3/1-73 recovered from him which were taken into possession vide memo. Exh.P.N. Statement of recovery witness Ghulam Abbas, Inspector/S.H.O. Police Station, Saddar Multan, was recorded. Ijaz Hussain, gunman (appellant) was arrested on 12-11-1996 from Masjid Haideri, Multan. ' On 18-11-1996 he interrogated Falak Sher alias Dr. Ali Raza (appellant) in Police Station, City Shorekot, who was also in police custody in some other case in Shorekot. On 12-1-1996 he was transferred from Police Station, Mumtazabad and handed over the investigation to Mukhtar Ahmed, Inspector/S.H.O. Police Station, Mumtazabad. 8. Mukhtar Ahmed, Inspector (P.W.6) investigated the case from 17-12-1996 onwards. He received information that Qari Muhammad Ayub-urRehman, complainant died in the Nishtar Hospital, Multan. He prepared the injury statement Exh.P.M. And inquest report Exh.P.M./1. 9. Talib Hussain, S.-I. (P.W.7) on 31-12-1996 proceeded to District Jail, 10. Jhang where Falak Sher accused was confined in some other case. He was interrogated by him in jail and there being sufficient evidence against him, his formal arrest in the present case bearing F.I.R. No,445 of 1996 was effected. 11. Muhammad Ashraf, S.-I. Police Station, Mumtazabad on 23-9-1996 obtained details of previous cases against Falak Sher accused/appellant from Police Station, Shorekot City, Jhang. On 24-10- 1997 he interrogated Agha Muhammad Ali alias Shabbar Hussain accused/appellant in Chung Jail, District Lahore. After interrogation, he found sufficient evidence to connect him with the commission of offence in the present case and formally affected his arrest. He sought permission from District Magistrate, Multan for holding of identification parade of Agha Muhammad Ali alias Shabbar Hussain and Ch. Muhammad Aslam, Magistrate was deputed to hold identification parade vide order Exh.P.P./II on the application Exh.P.P./I. Magistrate vide his order, dated 5-11-1997 marked the application to Superintendent, New Central Jail, and fixed 6-11-1997 as date for holding the identification parade which was held on the said date. He prepared supplementary challah against the accused on 7-11-1997. 12. Muhammad Yacjoob, Inspector (P.W.14) prepared the incomplete challah against Hassan Raza and Ijaz Hussain, accused on 29-12-1996. On 14-2-1997 Malik Ijaz Husain alias Heavy accused/appellant was arrested by Liaquat Ali, Inspector, C.I.D., Lahore, who handed him over to
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this witness at Police Station Mumtazabad. On 15-3-1997 he sent Ijaz Husain alias Heavy to judicial lock-up. He was transferred on 4-4-1997 from Police Station Mumtazabad. 13. Liaquat Shah, Inspector, C.I.D., Lahore (P.W.36) arrested on 14-3-1997 from Adda General Bus Stand, New Multan, Malik Ejaz Husain alias Heavy at 12-00 noon. He was asked, as he had to be identified, to cover his face. He wrapped his face with "Safa" which was with him and thereafter, was taken to Police Station, Mumtazabad and handed over to the police for further investigation. 13. Khawar Zaman, Inspector/S.H.O. (P.W.40) was posted as S.H.O. Police Station, Mumtazabad on 3- 6-1997 and the investigation of this case was taken up by him. He recorded the statement of some witnesses under section 161, Cr.P.C. On 11-6-1997 he submitted incomplete challah against Hassan Raza, Ijaz Heavy and Ijaz son of Tassawar Husain, accused/appellants in this case. On 23-8-1997, he arrested Asad Raza, accused/appellant on the pointation and information given by spy. He obtained judicial remand of Ejaz alias Heavy accused and sent him to judicial lock-up on 4-8-1997. Asad Raza accused was interrogated and was sent to Jail on 24-8-1997 for identification parade. He submitted an application Exh.P.R./2 before the Sessions Judge, Multan for holding identification parade. Sessions Judge, deputed Irshad Mohayyuddin, Judicial Magistrate, Multan vide his order Exh.P.R./3 for conducting identification parade. On 25-9-1997 proceedings of identification parade were supervised by Irshad Mohayyuddin, Magistrate in New Central Jail, Multan in respect of Falak Sher and Asad Raza, accused. After completion of identification parade, copy of the proceedings was obtained from the City Magistrate and incorporated in his file. 13-A. The ocular account of the occurrence in the present case is furnished by Muhammad Asghar son of Nasir Bakhsh (P.W.12), Muhammad Sajid son of Haji Allah Bakhsh (P.W.13), and Dr. Haji Abdul Ghafoor Gonadal (P.W.46) whereas the evidence of abetment through conspiracy has been supplied by Zulfiqar Ahmed (P.W.45). Apart from this, Muhammad Aslam, M.I.C., Multan (P.W.15) conducted the identification parade of Agha Muhammad Ali alias Shabbar Husain, accused/appellant, whereas Irshad Mohayyuddin, Judicial Magistrate, Multan (P.W.16) supervised the identification parade of accused/ appellant Asad Raza and Falak Sher. 14. Muhammad Asghar (P.W.12) and Muhammad Sajid (P.W.13) in their examination-in-chief stated that they were present at Masjid Al-Khair on the date of occurrence to offer Fajar prayer. Muhammad Asghar (P.W.12) was offering prayer when firing started whereas Sajid (P.W.13) was performing ablution when the appellants fired at congregation of Namazies. Both of them saw four persons firing at the Namazies. Some ran in the main hall and some laid prostrate on the ground to save their lives. Both these witnesses also laid prostrate on the ground to save their lives. They recognized the four persons, who fired. The firing injured many persons, hit the walls and doors of the mosque. Thereafter, all the four men comprising of firing squad retrieved through the main gate of the mosque and boarded a car standing near the gate. One person apart from the firing squad was standing near the car with a lame leg. Muhammad Asghar (P.W.12) pointed towards Hassan Raza accused, present in Court, as a person, who was standing near the car and towards Muhammad Ali alias Shabbir Husain as one of the ,four persons inside the mosque, firing at the Namazies. 15. Muhammad Asghar (P.W.12) stated that on 25-9-1996, he joined the identification parade held at New Central Jail, Multan where he correctly identified Asad Raza and Falak Sher, appellants, present in Court. He also stated that he joined another identification parade of Muhammad Ali in New Central Jail, Multan. He also identified Ijaz alias Heavy accused in lock-up of Police Station, Haram Gate, Multan. 16. Muhammad Sajid (P.W. L3) stated that he joined the identification parade in New Central Jail, Multan on 25-7-1997 and he identified three persons, whose names were not .Known to him. He further stated that he identified Falak Sher, Ijaz alias Heavy, and Asad Raza as accused present in Court. He pointed out towards three accused without telling their names and when the Court asked
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him to name them he took their names as Falak Sher, Ijaz alias Heavy and Asad Raza. He also volunteered to identify the accused, who was standing near the car and pointed out towards Asad Raza, who was sitting near the Bench in the Court-room. 17. The third eye-witness is Dr. Haji Abdul Graford Gonadal son of Hassan Muhammad P.W.46. This witness stated that on the day of occurrence he reached Masjid Al-Khair, Mumtazabad to offer his Fajar prayer. He proceeded towards Wazoo Khana when four persons armed with Kalashnikov rifles entered the mosque and opened indiscriminate firing on the congregation of Amazes. One of the assailants chased the Amazes who were trying to get shelter in the main hall of the mosque to save their lives, the remaining three kept on firing in the courtyard of the mosque. The witness took shelter behind the pillar by crawling on the ground. A Numazu Muhammad Younas came out from the Toilet and caught hold of one of the assailants. The assailant who was taken in fold shouted the name "Agha and Mushtaq" for help saying "I have been caught" upon which another assailant fired a burst at Younas and killed him on the spot. Thereafter, all the assailants ran through the eastern door of the mosque. Thirteen Namazies died at the spot whereas seven Amazes succumbed to their injuries at the hospital. According to this witness forty persons were injured inside the mosque. The witness stated that this incident could have been a retaliation of the incident which took place in Mailsi in the mosque of Ahle Tashee. This witness identified Ijaz Heavy, Ijaz Sherazi gunman and Falak Sher accused/appellants who opened firing in the mosque on the 'day of occurrence. In cross-examination this witness, at the insistence of defense counsel identified Falak Sher appellant who chased the Amazes to the hall of the mosque on the day of occurrence. Statement of this witness was recorded by the police on the same day. 18. Zulfiqar Ahmad son of Mushtaq Ahmad P.W.45 is a witness of abetment and conspiracy. He stated that he runs a shop of cigarette and cold drinks adjacent to Masjid AI-Khair. Baqir Zaidi owner of Dairy Farm lives near mosque in the market. Various persons visited Baqir Zaidi and these guests of Baqir Zaidi often took cold drinks from his shop. Two days earlier before the occurrence, four persons came in a car and they ordered him to supply cold drinks which he accordingly obliged. The witness stated that when he went to get the empty bottles he saw them pointing towards Masjid Al-Khair and heard them saying "do work of it". The witness identified these persons as Asad R aza, Hassan Raza Shamsi and Ijaz gunman by pointing out at them with his finger and stated that they were three persons out of the four persons who, had come in the car, purchased the cold drinks and uttered the above said words by pointing towards Masjid Al-Khair. The witness stated that thereafter, four persons went away in the said car and after two days the incident took place at the mosque. He added that the firing incident took place on the instigation of the four persons, one of whom was not present in Court. 19. Muhammad Aslam, Magistrate 1st Class, Multan P.W.15 supervised the identification parade for the identification of Agha Muhammad Ali alias Shabbar Hassan on 5-11-1997. He stated that nine other dummies/prisoners were associated with Agha Muhammad Ali appellant in the identification parade held at the premises of New Central Jail, Multan. He called P.W.12 Muhammad Asghar and recorded his statement Exh.P.QQ./1, thereafter, he directed the witness to identify the accused amongst the prisoners. Muhammad Asghar P.W.12 correctly identified Agha Muhammad Ali alias Shabbar Hassan accused/ appellant. After sending the witness back within the jail premises. He called Muhammad Sajid P.W.13 and recorded his statement Exh.P.QQ./2, thereafter, directed him to identify the accused. Muhammad Sajid P.W. Correctly identified Agha Muhammad Ali alias Shabbar Hassan accused. The witness completed his report and his certificates which are Exh.P.QQ./3 and Exh.P.QQ./4, respectively, bearing his signatures and thumb-impression of the witnesses. The proceedings were sent in sealed cover to the trial Court. This witness stated that Agha Muhammad Ali accused/appellant did not object that his photographs were taken by the police.
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20. Irshad Mohayyuddin, Judicial Magistrate P.W.16 on 25-9-1997 supervised the identification parade for the identity of Asad Raza, Ijaz Heavy and Falak Sher accused/appellants at the premises of New Central Jail, Multan. He made arrangement in holding the identification parade inside the jail premises near a park under the cover of plants. He arranged three lines mixing each one of the accused in the said lines having nine dummies and one accused respectively. In line marked "A". Falak Sher accused was sitting at Serial No,4 in the line marked "B"; Ijaz Heavy accused was sitting at Serial No,3 and similarly in line marked "C" Asad Raza accused was sitting at Serial No,9. He called Muhammad Sajid P.W.13 from outside the jail premises for identification of the accused persons. He called the accused, and dummies of line marked "A" and asked the witness to identify the accused. The witness correctly identified Falak Sher who was sitting at Serial No,4. Muhammad Sajid P.W.13 also narrated that accused Falak Sher was the same person who fired in the mosque. ' The witness was sent in a Ghalla Godown of the Jail and in the meantime arranged the line marked "B", the witness was again called and this time he pointed to one Abid Hussain as an accused, resultantly he failed to identify Ijaz alias Heavy. The witness was again sent to Ghalla Godown to enable the Magistrate to arrange the line marked "C", once again the witness was called and he correctly identified Asad Raza saying that he was the same person who was standing outside the gate of the mosque. New arrangement of the accused and the dummies consisting of two lines marked as "A" a were made by the Magistrate, accused Falak Sher was present at Serial No,2 of the line marked "A" whereas Asad Raza accused was present at Serial No,4 in the line marked "B". Muhammad Asghar P.W.12 was called from outside the premises of the jail to identify the accused. He was asked to identify the accused mixed with the dummies in the line marked "A", the witness could not identify Falak Sher and wrongly pointed out towards one Abid Hussain. Muhammad Asghar was sent to Ghalla godown and after some time was called to identify the accused mixed with the dummies in the line marked "B". This time Muhammad Asghar P.W.12 correctly identified Asad Raza accused present at Serial No,4. Accused objected that they had been shown in custody of police at Shore Kot to the witness. Similarly Asad Raza accused/appellant also objected that he was an active member of different organizations holding important positions and as such his identification was not difficult. He also stated that his one leg is fractured and there is rod in it which makes easy for others to identify him. Lastly Ijaz accused also objected that 5/6 months earlier he was confined in jail where he was shown to the witnesses. The Magistrate concluded the identification parade by giving his report Exh.P.S. Which was sent to the trial Court. 21. Learned counsel for the appellants took us through the evidence of eyewitnesses. Investigating Officers, witnesses of the conspiracy and read the evidence f the Magistrates who held the identification parade. In his vehement arguments he stated that the prosecution case was not free from doubts. The eyewitnesses were stalwarts of the organization "Sipah-i-Sahaba" which was at daggers drawn with the appellants who are Shia by faith; they were not present at the time of occurrence and they are deposing falsely because they belong to different sect inimically opposed towards each other. There were vital and major discrepancies in the statement of the various witnesses regarding the role and identification of the appellants which itself was testimony to the effect that none of them had seen the appellants at the time of occurrence. It was added that Muhammad Sajid P.W.13 was produced for the first time on 6-9-1997 before the police which militated his testimony having been recorded approximately one year after the occurrence. Learned counsel for the appellants bitterly attacked the identification parade saying that it was a hoax because the appellants had been shown to the witnesses in jail or at other places. Further, it was argued that no injured witness has supported the prosecution as they had not seen any one firing. The three eye-witnesses were so situated that they could not have witnessed the occurrence and their testimony supporting the prosecution is nothing but based on falsity. It was also urged
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that no post-mortem examination having been conducted on the dead bodies, the factum that the deceased died because of violence could not be ascertained. In any case it was pleaded that this omission, entitles them to lesser penalty. As regards evidence of conspiracy given by Zulfiqar Ahmad P.W.45, it was stated that the testimony was clearly a cooked up affair. Asad Raza one of the appellants is stated to be lame, therefore, he can be easily identified because none of the dummies was lame. As regards the investigation it was bitterly attacked as being dishonest. On the legal plinth, it was stated that no conviction having been made by the trial Court under section 109, P.P.C., the sentence imposed on Hassan Raza and Ijaz Hussain son of Tasawar Husain who were not present at the time of…
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