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Petitioner: THE STATE VS Respondent: BASHIR AHMAD and 6 others
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, Khalil-ur-Rehman Ramday Title: THE STATE vs BASHIR AHMAD and 6 others Case No.: Criminal Appeal No, 192 of 1998 Date of Judgment:2000-05-18 Reported As: 2000 YLR 1634 Result: Appeal accepted
JUDGMENT
JUDGMENT ' KHALIL-UR-REHMAN RAMDAY, J.---In an occurrence which had allegedly taken place on 6-9-1996 at about 1-30 p.m. Near the Jamia Masjid of village Buri Mahlam, four persons, namely, Ismail, Hatiz Amjad Masood, Iftikhar and Mst. Abida Shaheen were murdered and three other persons namely, Maroof, Shehbaz son of Fazal and Mst. Sharifan had also received fire arm injuries but they had, however survived. 2. Seven persons, namely, Bashir. Ahmad, his two brothers Muhammad Ali and Rasheed Ahmad, two sons of the said Bashir Ahmad, namely, Asghar and Amjad and two sons of the said Muhammad Ali accused, namely, Shehbaz and Imtiaz were accused by the complainant of the commission of the above noticed offences and an eighth accused namely, Ayaz son of the abovementioned Muhammad Ali accused was later added to the list, as a result of the investigation and thus a total of eight accused were tried by Sardar Mashkoor Ahmad Sindhu, the learned Presiding Judge of Special Court No,1 established at Lahore under the Anti-Terrorism Act of 1997. Through his judgment dated 19-3-1998 the said learned trial Judge acquitted all the above mentioned eight accused persons of the above noticed charges. 3. The State filed Criminal Appeal No,192 of 1998 to call in question the acquittal of the said accused persons except that of Ayaz as according to the complainant. He had not participated in the present occurrence. To the same effect and against the same persons was filed an appeal, bearing Criminal Appeal No,292 of 1998, by Maroof complainant. Both these matters are being disposed of together through this single judgment. 4. The occurrence in question, as has been mentioned above, had taken place on 6-9-1996 at 1-30 p.m. Near the Jamia Masjid of village Burj Mahlam about three miles from Police Station City
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Pattoki. Muhammad Maroof complainant reported this occurrence to Badar Munir S.I./S.H2O. Of Police Station Pattoki through a written application when the latter had reached the civil hospital of Pattoki where Maroof complainant and other injured persons were lying admitted and on the basis of which application a formal F.I.R. Bearing No,278 was registered at the said police station at about 3-00 p.m. The same day. 5. Narrating the occurrence and the background leading thereto Maroof complainant had mentioned that he was a resident of village Burj Mahlam of Tehsil Pattoki; that on the day of occurrence one Muhammad Fayyaz (P.W. 13) who was a close relative of the complainant went to the shop of Shahab Din at about 1-00 p.m. To fetch vegetables; that when the said Fayyaz passed from in front of the house of Imtiaz accused, the said Imtiaz accused gave abuses to the said Fayyaz P,W. And even belabored him with fist blows as a result of which Fayyaz P.W. Returned to his house and narrated this incident to his maternal uncle, namely, Ismail who was visiting and staying with them; that at about 1-30 p.m. The said Ismail (one of the deceased persons of the present case) and a brother of Fayyaz P.W. Namely, Shehbaz (an injured P.W. Of the present occurrence) went to the Dera of the elders of Imtiaz accused abovementioned and while the said Ismail and Shehbaz were talking to the father of Imtiaz accused, namely, Muhammad Ali accused and to the two brothers of the said Muhammad Ali, namely, Bashir and Rasheed accused, the complainant, who was going to the village mosque to offer Jumma prayers alongwith Iftikhar (another deceased of the present case) and Hafiz Amjad Masood (also a deceased person of the present case), saw the above mentioned three accused persons, namely, Muhammad Ali, Bashir and Rasheed running into their Dera and returning to the spot after Muhammad Ali accused, Rasheed accused and Bashir accused had armed themselves with .222 rifle and a .7mm rifle respectively and when they were also accompanied by Imtiaz accused carrying a .222 rifle, Shehbaz accused carrying a .12 bore Pump Action gun, Muhammad Asghar accused armed with a .7mm rifle and Muhammad Amjad accused armed with a carbine; that after raising Lalkaras to finish the above mentioned victims, all the above named seven accused persons fired shots with their respective fire arm weapons causing the death of Ismail, Iftikhar, Hafiz Amjad Masood and of a passer-by child, namely, Mst. Abida Shaheen and causing injuries on the persons of Maroof complainant, Shehbaz P.W. And Mst. Sharifan (given up); that thereafter the said assailants resorted to further indiscriminate firing; that when a large number of persons got attracted to the spot, all the above named accused persons ran away from the place of occurrence. 6. Ismail, Hafiz Amjad Masood and Iftikhar deceased died at the very place of occurrence while the other injured victims were rushed to the civil hospital of Pattoki out of whom Mst. Abida Shaheen also succumbed to the injuries a day after the occurrence i,e, on 7-9-1996, 7. Badar Munir (P.W. 12) reached the place of occurrence where he found blood-stained earth at the points where Hafiz Amjad Masood deceased, Ismail deceased, Iftikhar deceased and Mst. Abida Shaheen deceased had received injuries and secured the same vide memos. Exhs. PB, PC, PD and PE respectively. He also found 18 crime empties of .7 mm rifle (P.1/1-18), 13 crime empties of .12 bore gun (P.2/1-13) and 51 crime empties of .222 rifle (P.3/1-51) at the spot. The said Investigating Officer collected all these 82 crime empties vide memo Exh. P.F. A. 30 bore pistol (P.5) was also lying at the spot which was seized by the said Investigating Officer vide memo. Exh. PH. A motor car bearing registration No, LPT-1396 (P.4) was also available at the place of occurrence which had fire-arm marks on it and which was taken into possession by the Investigating Officer vide memo. Exh.P.G. He also collected a Tarpaal (P.6) vide memo. Exh. P.J as the same also carried fire-arm marks on it. 8. He arrested Bashir, Rasheed, Asghar, Shehbaz, Imtiaz and Amjad accused on 28-9-1996 while Muhammad Ali accused was arrested by him on 7-10-1996. After their arrest, Shehbaz and Asghar accused, on 11-10-1996, led to the recovery of a .12 bore gun (P.18) and a .7 mm rifle (P.19)
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respectively while Bashir accused on the same day led to the recovery of his licensed. 7 mm rifle (P.20) with its license (P.21) and all these fire arm weapons were taken into possession vide memos. Exhs. PO, PP and PQ respectively. On 17-10-1996 Ayaz accused (not a respondent before us) appeared before the said Badar Munir Investigating Officer and produced a .222 rifle (P.22) before him which was secured vide memo. Exh.PQQ. 9. On 20-10-1996 all the 82 crime empties were received in the Forensic Science Laboratory at Lahore while one .7 mm rifle (P.19) allegedly recovered at the instance of Asghar Ali accused and one .12 bore gun (P.18) allegedly recovered from Shehbaz accused were received in the said laboratory on 30-10-1996. All these items had been allegedly taken to the said Forensic Science Laboratory by Muhammad Anwar F.C. P.W.10. It may be mentioned here that the .7 mm rifle (P.20) which had been recovered at the instance of Bashir accused on the same day when a .12 bore gun (P.18) and a .7mm rifle (P.19) had been allegedly recovered from Shehbaz and Asghar accused, had not been sent to the said F.S.L. On 30-10-1996 along with P.18 and .P.19 above mentioned. It may be added that strangely enough. According to the report of the F.S.L. The abovementioned crime empties had been received by it on 20-10-1996 while according to Muhammad Anwar F.C. P.W.10 the said crime empties had been taken by him from Mahmood-ul-Hassan M.H.C. P.W. 11 on 18-9- 1996 and he had deposited the same with the said laboratory the same day i,e, on 18-9-996. Conspicuously enough, although according to the said report of the F.S.L. a .12 bore gun P.18 and a .7mm rifle P.19 had also been brought to them by Muhammad Anwar F.C. On 30-10-1996 but the said Muhammad Anwar makes no mention either of having received these weapons or of having taken them to the said Forensic Science Laboratory, 10. According to the report Exh. PZZ dated 18-12-1996 of the said F.S.L. Seven crime empties of .7 mm bore had been found to have been fired from the .7 mm rifle (P.19) alleged to have been recovered at the instance of Asghar accused while all the .12 bore crime empties were found to have been fired from the .12 bore Pump Action gun (P.18) allegedly recovered from Shehbaz accused. The .7 mm rife (P.20) recovered from Bashir accused on 11-10-1996 appears to have been received by the Forensic Science Laboratory on 10-11-1996 as per Muhammad Anwar F.C. (P.W. 10) while a .222 rifle (P.22) allegedly recovered from Ayaz accused on 17-10-1996 was received by the said laboratory on 25-9-1997 as per Liaqat Ali A.S.I. As has been mentioned above Muhammad Anwar F.C. P.W. 10 never made any mention of having taken the abovementioned. 7 mm rifle to the F.S.L. And for unknown reasons, this Liaqat Ali A.S.I. Who had deposited this rifle (P.22) with the said laboratory on 25-9-1997, was never produced as a prosecution witness at the trial. However, according to the report Exh.PBBB dated 1-10-1997 of the said laboratory, five crime empties of .7 mm had been found to have been fired from the .7mm rifle (P.20) recovered from Bashir accused while none of the 51 crime empties of .222 had been found to have been fired from the .222 rifle (P.22) allegedly recovered from Ayaz accused. It may be added that .7mm rifle (P.20) abovementioned which was recovered at the instance of Bashir accused was, according to the admission made by Badar Munir S.H.O./I.O. And also according to the memo. Exh. PQ, was never sealed at the time of its recovery. As has been noticed above .12 bore gun (P.18), a. .7 mm rifle (P.19) and another .7 mm rifle (P.20) were recovered from Shehbaz, Asghar and Bashir accused respectively on the same day i,e, on 11-10-1996 and while the said weapons i,e, P.18 and P.19 were received in the F.S.L. On 30-10-1996; the .7mm rifle (P.20) recovered from Bastiir accused was received in the said laboratory almost one year thereafter i,e, on 25-9-1997 There is yet another strange aspect of this matter. A .222 rifle (P.22), as has been mentioned above, was recovered from Ayaz accused on 17-10-1996 vide memo. Exh. PQQ. According to this memo. Of recovery the number of this rifle (P.22), when recovered, stood erased and a .222 rifle was received in the F.S.L. On 25-9-1997, as per Exh. PBBB having been recovered from Ayaz accused and was the one the number of which was found erased. There is another report of the F.S.L. Exh. PCCC at page 54-C of, this Paper-Book which report is dated 6-10-
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1997. According to this report another .222 rifle bearing No,1706 was also received in the laboratory on 4-10-1997 and this rifle was again a weapon allegedly recovered from Ayaz accused. This report adds that 20 crime empties of .222 bore out of 51 crime empties of the said bore found at the place of occurrence were found to have been fired from this .222 rifle bearing No,1706, According to the memos. Of recovery and according to the statement of Badar Munir S.H.O./I.O. Only one .222 rifle had been recovered from Ayaz accused on 17-10-1996 and its number, as has been noticed above, was found erased. Which is this other .222 rifle bearing No,1706 allegedly recovered from Ayaz accused and which was received in the F.S.L. More than one year after the occurrence. Is not discernable from the record. 11. The above is then the situation as appearing on record, relating to the crime empties allegedly found at the place of occurrence and of the fire arm weapons allegedly recovered from the accused persons and allegedly received in the Forensic Science Laboratory. It may be added that no weapon of offence had been recovered from or at the instance of the other four accused persons, namely, Muhammad Ali, Rasheed, Amjad and Imtiaz. 12. When confronted with the prosecution case under section 342, Cr.P.C., Bashir accused pleaded that on the day of occurrence the complainant party came armed to his residence in an organized manner, that the said members of this complainant party who had so come to the residence of Bashir accused were Ismail (deceased), Iftikhar (deceased), Hafiz Amjad Masood (deceased), Maroof, the injured P.W. And Shehbaz injured P.W. And they were all armed with fire-arm weapons; that these persons of the complainant party were accompanied by some other persons who were also armed with firearm weapons, that all of them attacked the house of Bashir accused and even insulted him as these members of the complainant party were powerful persons of the village; that Bashir accused requested them particularly Ismail deceased that he was prepared to declare on the loud speaker of the mosque that he was their Kammi but Ismail deceased continued insulting him and his family; that Ismail deceased further said that he had brought Shehbaz P.W. As a bridegroom and wanted the daughter of Bashir accused for him; that these members of the complainant party were repeatedly requested not to disgrace the family of Bashir accused and they also gave pushes to a nephew of Bashir accused, namely, Ayaz; that an altercation took place between the parties whereafter the said Ayaz accused brought out a rifle and opened fire to save his life, to save the life of Bashir accused and also to save the honour of their family; that cross firing between the two parties then ensued as a result of which Ismail, Iftikhar, Amjad Masood and Mst, Abida Sheheen lost their lives while Maroof complainant, Shehbaz P.W. And Mst. Sharifan (given up) sustained injuries. Bashir accused further added that one of his sons, namely, Muhammad Afzal who was deaf and dumb; was teased for himself and for his family honour and the said Afzal had raised hue and cry. Bashir accused had further declared that the other accused persons, namely, Muhammad Ali, Rasheed, Imtiaz, Shehbaz, Asghar and Amjad were not present at the time of occurrence and had not participated in the same. 13. All the other accused persons adopted the above-noticed plea taken by Bashir accused. 14. The accused persons did not lead any oral evidence but placed certain documents on record,. An application was however, moved on behalf of the accused persons under section 540. Cr.P.C. Praying that one Muhammad Amin who was allegedly a paternal uncle of Mst. Abida Shaheen deceased be summoned as a Court witness: This application was allowed and this Muhammad Amin was then examined as C.W.1. 15. He claimed that on the day of occurrence he was going to the Jamia Masjid of the village to offer Jumma prayer where he saw Iftikhar deceased armed with a .222 nfle. Amjad deceased armed with a revolver, 30 bore pistol. Ismail deceased armed with a .222 rifle, Maroof complainant P.W. Armed with a .12 bore gun and Shehbaz P.W. Armed with a .7 mm rifle and then narrated the same story which had been given by Bashir accused through his statement under section 342,
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Cr.P.C. And which has been noticed above. He had however added that his neice namely, Mst. Abida Shaheen had been hit by a shot fired by Shehbaz P.W. He further claimed to have made an application for the registration of a criminal case against the complainant party of the present case with respect to the murder of Mst. Abida Shaheen but the needful was not done whereafter he approached the Lahore High Court praying for the issuance of a writ for the registration of the said criminal case. This Court is stated to have passed orders directing the S.P. Of Kasur to look into the matter if approached this Amin C.W. It was admitted by him that he never made any formal application to the said S.P. But only made an oral request to him for the purpose. It may be mentioned here that this Amin C.W. Neither got an F.1.R. Registered with respect to whatever he claimed to have seen nor did he even file a complaint after the alleged refusal of the police authorities to oblige him with an F.I.R. It may also be added that as per Dr. Kanwar Afzal Bashir P.W. 8 who had medically examined Mst. Abida Shaheen aged about nine years when she had been taken to the T.H.Q. Hospital Pattoki on 6-9-1996 at 2-15 p.m.. The one who had brought this injured victim to the hospital was the father of Mst. Abida Shaheen, namely, Muhammad Shafi although this Amin C.W. Claimed through his abovementioned statement that he was the one who had taken Mst. Abida Shaheen to Pattoki Hospital. 16. Before we proceed any further, a mention may also be made about the judgment of acquittal passed by the learned trial Judge and the reasons which had weighed with him for acquitting the accused persons. This judgment spreads over 82 pages of this Paper-book. 78 out of these 82 pages and 124 paragraphs out of the total of 131 paragraphs of this judgment contain only the narration of facts; the evidence led at the trial and the contentions of the learned Prosecutor and the learned defence counsel. Having reproduced this evidence in 78 pages, the learned trial Judge proceeded to hold in para. No,125 of the judgment that the prosecution had withheld the P.Ws. Which were cited as eye witnesses and had similarly withheld the Investigating Officers. Who had also conducted the investigation and had rendered their opinion about the case and consequently held that in such a state of affairs it was apparent that the prosecution was withholding the fact how the incident started and the prosecution was only projecting the result of the occurrence. In para 126, the learned trial Judge declared that in the given circumstances the only person who seemed to be independent was Muhammad Amin C.W.1 and since he was the one who deserved reliance, therefore, the accused persons deserved acquittal. The learned Judge had also sought strength in reaching this conclusion from the fact that at least 20 Crime empties of .222 rifle had been found to have been fired from the .222 rifle produced by one Aslam and which was attributed to Ayaz accused. 17. This judgment of the learned trial Judge will be discussed further in some detail in the later part of this judgment but before we proceed any further we would like to notice here that while the learned trial Judge was giving the facts of the case and the evidence led at the trial, he had brought on record the opinion of various Investigating Officers such as the alleged opinion of Shafqat Bari D.S.P., Asif Nawaz S.P. Crimes Branch, Abdus Samad Shah D.S.P. And the fact that the report of Abdus Samed D.S.P. Had also been approved not only by the S.P. And the D.I.-G. Of Crimes Branch but had even received the "Assent" of the Inspector-General of Police when none of these Investigating Officers had either appeared as prosecution witness or had even been summoned either as Court witness or defence witnesses. The learned trial Judge had shown complete ignorance of the relevant provisions of law relating to the inadmissibility of hearsay evidence and the inadmissibility of the opinions of the Investigating Officers. In evidence. The learned trial Judge had also referred to various case diaries in paras. Nos.6 and 8 of his judgment again in ignorance of and undaunted by the prohibition contained in section 172 of the Cr.P.C. 18. We consider it appropriate to first examine the defence plea raised by the accused persons supported by Muhammad Amin C,W.1, to determine whether the said plea was reasonable and
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plausible. 19. It was the case of Bashir accused owned by the other accused persons that five members of the complainant party, namely, Ismail deceased, Iftikhar deceased, Amjad Masood deceased, Maroof complainant and Shehbaz P.W. Had come to his house after arming themselves with fire-arm weapons when they were accompanied by some other persons who were also similarly armed and had then attacked the house of Bashir accused. Amin C.W.1 added to the plea of Bashir accused by disclosing that the other persons who had allegedly accompanied the members of the complainant party to attack the house of Bashir accused were Riaz armed with a .222 rifle, another Riaz armed with a .7 mm rifle, one Nisar armed with a .12 bore gun, Faqir Muhammad armed with a .12 bore gun, Haji Allah Din armed with a .12 bore gun. Shahbir Ahmad armed with a .222 rifle and Muhammad Asif armed also with a .12 bore gun. This then brought the number of these alleged assailants of the complainant party to 12 who were armed with fire-arm weapons and who had allegedly attacked the house of Bashir accused. According to the defence, it was only Ayaz from the accused side who had exchanged fire with the abovementioned armed persons from the complainant party. This alleged cross firing left four dead and three seriously wounded. Out of these seven victims of the occurrence six i,e, three dead and three injured belonged to the complainant party while Mst. Abida Shaheen deceased was a passer-by. 20. As has been noticed above, three of these victims had died at the spot while Maroof and Shehbaz P.Ws. Were rushed to the hospital in a seriously injured condition. All five of them were allegedly armed, with fire-arms. The fire-arm weapons carried by these five victims were never found at the spot. The defence never alleged or claimed that it was either these victims--the dead or the injured who had taken their fire-arm weapons with them or that anyone from the complainant party had removed them from the place of occurrence. The defence plea and the story offered by Amin C.W. Offer no explanation about this aspect of the matter. According to the defence and the C.W., a large battalion from the complainant side comprising 12 persons had 'gone to the house of Bashir accused after arming themselves with fire-arm weapons and had attacked his house. Neither the accused persons nor the C.W. Disclosed any reason why such a violent attack should have been planned and made by the complainant party on Bashir accused. The abovementioned 12 armed men had mounted an assault which was retaliated by a solitary Ayaz from the accused side. The allegedly aggressor complainant party, 12 times in number, left the place of occurrence with three dead and three injured while not even a scratch was caused either to the solitary Ayaz or to Bashir accused or to anyone else. This rather miraculous claim does not appear either to be reasonable or plausible. The defence further claimed that the seven victims of the occurrence had received the fire-arm injuries while 12 persons from the complainant side and one person from the accused party were exchanging fire. Dr. Kanwar Afzal Bashir P.W.8 who had conducted the medico-legal examination of the injured persons and the post-mortem examination of the dead. Had found that the margins of the injury received by Maroof complainant, the margins of all the four wounds of entry of Shahbaz P.W., the margins of the wound of entry on the body of Hafiz Amjad Masood deceased, the margins of the injuries received by Ismail deceased and the margins of injuries received by Iftikhar deceased were blackish in colour and the defence extracted it from this doctor in cross-examination that these injuries had been caused from a close .Range i,e, from within 6 inches to 1 foot. If the two sides were exchanging fire with automatic and other fire-arm weapons then it is not believable that someone could go so close to the other armed aggressors so as to cause injuries on the bodies of these persons from a distance of 6 inches or 1 foot. No marks of any fire-arm projectiles were found on any part of the house of Bashir accused. ' Muhammad Amin C.W.1 had claimed that having witnessed the occurrence, he was the one who had rushed his neice Mst. Abida Shaheen to Pattoki hospital in an injured condition and this is how
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he had also attempted to prove his presence at the place of occurrence at the relevant time. He is falsified by Dr. Kanwar Afzal Bashir P.W.8 who had medically examined Mst. Abida Shaheen on 6-9- 1996 at 2-15 p.m. And according to whom the said child had been brought to him by her father, namely, Muhammad Shafi. This C.W. Claimed to have sought registration of a criminal case against the complainant party for the murder of Mst. Abida Shaheen but could not produce any application which he may have made either to the S,H.O. Or to any superior police officer for the purpose. He, however, did file a writ petition in the High Court for the said purpose and having been directed by this Court to approach the S.P. Of Kasur for the purpose which S.P. Had been ordered to look into the matter, this C.W. Admitted…
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