STATE Versus BASHIR KHASKHAILI

Accused, Bashir Khashkaili, was challaned by S.H.O., Steel Town Police Station, Karachi, under sections 307, 302, 109, 114 and 34, P.P.C. before the Special Court (Suppression of Terrorist Activities), Karachi on 12‑1‑1991 alongwith a request for the postponement of trial under section 344, Cr.P.C. enabling him to complete the investigation. The final challan was submitted under the same sections on 17‑2‑1991. .

2. Briefly stated the prosecution story is that on 6‑6‑1990 at about 8‑00 a.m. Sub‑Inspector, Muhammad Akram Masood, who was S.H.O., Steel Town Police Station, was on patrol duty alongwith his staff in his jurisdiction, when he received information that firing was taking place on Pak Land Cement Factory Road. He immediately rushed to the scene of offence, and found 20/25 persons standing near a Suzuki. One of them, namely, Shahzad Qamar, gave information of the crime to the S.H.O., which was taken down by him as F.I.R. It was to the effect that Shahzad Qamar was employed in Pak Land Cement Factory. On that morning at about 7‑00 a.m. he reached National Highway in a bus from his father's house and got down at the bus‑stop of Pak Land Cement Factory. Then alongwith Anisur Rahman, Mujtaba Naqvi, Abdul Qadeer, Salamullah, Shariful Hassan, Amir Rahman, Abdul Rauf, Abdul Aziz, Abdul Muzaffar, Usman Ghani, Baboo Sehar, Afzal, Shaji Siddiqui, Suhail and a companion of Anisur Rahman, all of whom were also employees of Pak Land Cement Factory, he boarded a Suzuki which belonged to Ghulam Hussain. P.W. Ghulam Hussain was himself driving the Suzuki. When they covered some distance and were about 3/4 kilometres from Pak Land Cement Factory, they saw a Toyota car of white colour coming in front of the Suzuki, on account of which, the Suzuki stopped. Some persons got down from that car. They had arms in their hands. They opened fire at the Suzuki. The complainant and the P.Ws. lowered their heads. The culprits kept firing for 8/10 minutes at the inmates of the Suzuki. When they were satisfied that all the inmates had died, then they left the scene of offence in their car. After departure of the culprits Afzal told the complainant that he had received bullet injuries and asked for a handkerchief. On this the complainant recovered his senses and realized that he had not received any injury. He then came out of Suzuki and was about to go to the factory to inform about the incident, when the ambulance of the factory reached there. He asked the driver of the Suzuki to pick up the injured. He then saw that Anisur Rahman, Mujtaba Naqvi, Abdul Qadeer, Salamullah, Shariful Hassan, Abdul Rauf, Abdul Aziz, Zainuddin, Abdul Muzaffar and Anisur Rahman's companion, had died due to the bullet injuries while Usman Ghani, Baboo Saher, Asif Ali, Afzal and Shaji Siddiqui, were injured. Sub Inspector, Muhammad Akram Masood, sent the F.I.R. to the police station through Constable Abdul Rahman, for being incorporated in 154, Cr.P.C. Book. He then inspected the scene of offence and prepared the memo. He took photographs of Suzuki. He then scratched blood from the ground and secured it. He also secured 16 empties of bullets and three lead pieces of the used bullets which were lying there. He then made enquiries from all those persons who were present at the scene of offence. He then handed over the case papers to Inspector Khursheed Zaman, who had taken over the charge as S.H.O. of Steel Town Police Station on 15‑7‑1990. Inspector Khursheed Zaman sent the blood‑stained articles received from the hospital after post‑mortem examination of the dead bodies to the Chemical Analyser, whose opinion was to the effect that all these articles were stained with human blood. On 20‑10‑1990 he made enquiries from Shaji Siddiqui and on 9‑11‑1990 from Afzal. On 29‑12‑1990 S.I. Noor Khan of Special Investigation Cell (South), Karachi, received spy information at 2‑30 p.m. about the availability of the accused Bashir Khaskhaili, involved in this crime. Consequently, he raided an under‑construction bungalow on Gabol Road, Nabi Dad Lane, Karachi, in the jurisdiction of Kalakot Police Station, and arrested the accused from there and secured a Kalashnikov and one magazine loaded with ten live bullets from under the bed of the accused. He then took the accused to his office and interrogated him. The accused led him to the scene of offence and pointed out the same to him. He then handed over the accused as well as case papers to the Inspector, Khursheed Zaman. Khursheed Zaman sent the Kalashnikov and the empties to the Ballistic Expert on 13‑1‑1991, whose opinion is positive. At the instance of Inspector Khursheed Zaman identification test of the accused was held on 23‑1‑1991, in which P.W. Ghulam Hussain picked out the accused. On 24‑1‑1991, 164, Cr.P.C. statement of P.W. Ghulam Hussain was recorded. Thereafter he challaned the case as shown above.

3. A charge was framed against the accused, under sections 302 and 324, read with section 34, P.P.C. to which he pleaded not guilty and claimed to be tried. The trial commenced before Special Court for Suppression of Terrorist Activities, Karachi. On behalf of the prosecution P.Ws. Syed Nizam Exh.9, Sohail Shameem Exh.ll, Ghulam Hussain, the Suzuki Driver Exh.14 and Muhammad Afzal Exh.16 were examined as eye‑witnesses: Dr. Abdul Ghafoor Exh.17, who performed the post‑mortem of the dead bodies and P.W. Syed Hassan Exh.48, a supporting witness and Mashir were also examined. P.Ws. Shahid and Zafar Siddiqui were given up by the prosecution. Thereafter, the case was transferred by the Federal Government to this Court under subsection (2) of section 5 of the Special Courts for Speedy Trials Ordinance, 1991. Before this Court, P.Ws. Shaji Siddiqui, Exh.8, Muhammad Afzal Exh.5,2, Head Constable Muhammad Aslam Exh53 and Mashirs of Inquest Reports Noman Furrukh, Exh.54, Abdul Majeed, Aqeel Ahmed, Muhammad Haneef, Azizur Rahman, Dr. Inam, Asif‑ud‑Doula, Abdul Aziz and Syed Muhammad Taqi, Exhs.54 to 62 were examined. Besides Sub‑Inspector Muhammad Akram Masood Exh.63, Head Constable Ali Haider Exh.64, S.D.M. Niaz Hussain Shah Exh.65, Inspector Noor Khan Exh.23 and S.H.O. Khursheed Zaman Exh.67, were examined. Thereafter, the prosecution closed its side. Accused Bashir Khaskhaili in his state extent under section 342, Cr.P.C. denied to have gone with culprits to the seeneef offence at the time of incident, to have fired 'at the inmates of the Suzuki, to have committed murders of the deceased or to have caused injuries to the injured. He has admitted that he was arrested by S.L Noor Khan but alleges that he was arrested a day earlier. He has denied that Kalashnikov and the ten bullets lying in the magazine were recovered from his bed and has alleged that same have been foisted upon him. He has alleged that identification test was a farce as P.W. Ghulam Hussain had already seen him when he had cross‑examined him, during the recording of his 164, Cr.P.C. statement, which was in fact recorded earlier than holding of identification test. He has alleged that the case is outcome of enmity. He was President of Jiay Sindh of Karachi Division in 1989. D.I.‑G. Aftab Nabi, brother of Islam Nabi, a Federal Minister and a leader of M.Q.M. got him implicated in this case. He has further alleged that immediately after his arrest he was handed over to the Army. P.W. Ghulam Hussain was a suspected in this crime. He was seriously beaten by the police. The police released Ghulam Hussian only when he became a witness and falsely implicated him. He has not examined himself on oath. He also does not want to examine any defence witness.

5. Main points for determination in this cases are as follows: ‑‑

(1) Whether Anisur Rehman, Mujtaba Naqvi, Abdul Aziz, Salamullah, Zainuddin, Amir Ali, Abdul Rauf, Abdul Qadeer, Abul Muzaffar, Usman Ghani, Asim Nazir, Asif Ali and Baboo Sehar are dead and their death was as a result of fire‑arm injuries?

(2) Whether Muhammad Afzal and Shaji Siddiqui received grievous hurt by fire‑arms?

(3) Whether the accused Bashir Khaskhaili together with three unidentified culprits on 6‑6‑1990 at 7‑30 a.m. intentionally caused death of the above named deceased by firing shots at them and thereby committed Qatl‑e‑Amd?

(4) Whether accused Bashir Khaskhaili together with some unidentified persons at the same time and place by shooting with fire‑arms at the injured caused them grievous hurt with such intention and such circumstances that had any one none of them died he would have been guilty of Qatl‑e‑Amd?

My findings on these points are as follows: ‑‑

Points Nos. (1) and (2): In affirmative

Points Nos. (3) and (4): Not proved.

6. Points Nos. (1) and (2) .‑‑There is ample prosecution evidence in proof of these points which consist of the depositions of the eye‑witnesses, Investigating Officers, Mashirs and the Medical Officer. Even the defence has not challenged this aspect of the prosecution case. The most pertinent evidence on the points is the statement of Dr. Abdul Ghafoor, Medico‑Legal Officer, Jinnah Post Medical Graduate Centre, Karachi. He had held post‑mortem examination of the dead bodies of Usman Ghani, Shariful Hassan, Asim, Aziz, Zainuddin, Amir Ali, Abu] Rauf, Abdul Oadeer, Mujtaba Naqvi, Abdul Muzaffar, Salamullah and Baboo Saher. He was on the opinion that each one of them died due to shock and haemorrhage as result of fire‑arm injuries, which were sufficient to cause death in the ordinary course of nature. He has given details of the exeternal and internal injuries received by the each deceased. He had also examined the injuries on the person of injuried Muhammad Afzal and Shaji Siddiqui. Both of them, he states had fire‑arm injuries, which were grievous in nature. I, therefore, hold both these points in affirmative.

7. Points Nos. (3) and (4) .‑‑The prosecution has adduced the following types of evidence in this case:‑‑

(i) Ocular evidence of P.W. Ghulam Hussain, supported by identification parade supervised by A.C.M. Niaz Hussain Shah on 23‑1‑1991, wherein P.W. Ghulam Hussain picked out the accused correctly.

(ii) Circumstantial evidence .‑‑(a) of presence of 16 crime empties and three pieces of lead bullets at the scene of offence;

(b) recovery of Kalashnikov from the possession of the accused; and

(c) Ballistic Expert's evidence and opinion that 16 crime empties and three pieces of lead bullets found at the scene of offence were fired from the above Kalashnikov assault rifle.

I would now take up all the pieces of evidence one by one. The only eye witness, who can be said to have given some evidence against the accused, is P.W. Ghulam Hussain. Besides P.W .Ghulam Hussain five other eye‑witnesses have been examined in this case. They are Syed Nizam Exh.9 the first informant, Sohail Shamim Exh.II, Muhammad Afzal Exhs.16 and 52 (examined twice), Syed Wajid Ali Shah Exh.48 and Shaji Siddiqui Exh.51. But none of them has said a word against Bashir Khaskhaili. Syed Wajid Ali Shah is an Officer of Pak Land Cement Factory. He was going in a jeep from the factory to the Head Office, when white car in which the culprits were sitting crossed him. He saw culprits sitting in that car, but could not identify them. He was the first person to reach the scene of offence after the massacre. He immediately went back to the factory and brought ambulance from there. P.W. Wajid Ali Shah was not put to the, identification test of accused Bashir Khaskhaili. He has not stated in Court that accused Bashir khaskhaili was one of the culprits, who were sitting in the white car which crossed his jeep immediately after the incident. Prosecution witnesses Syed Nizam, Suhail Shamim, Muhammad Afzal and Shaji Siddiqui were sitting in the Suzuki when it was fired at. All of them except Syed Nizam, received injuries. None of them was put to the identification test of accused Bashir Khaskhaili. None of them even identified accused Bashir Khaskhaili in the Court to be one of the culprits. The only eye‑witness who has claimed to have identified accused Bashir Khaskhaili was P.W. Ghulam Hussain. He has stated on oath that on 6‑6‑1990 at 7‑30 a.m. he was carrying workers of Pak Land Cement Factory from National Highways to the factory in his Suzuki. After covering three kilometres a car of white colour came and stopped in front of the Suzuki. Three‑ persons got down from the car with rifles. Two of them stood in front of the Suzuki and one came near the Suzuki and started firing at it. He got down and requested them to stop firing in the name of God. On this one of the culprits enquired from him as to who he was. He replied that he was a Sindhi, on which the culprits ordered him to run away. He then went to the police. His 164, Cr.P.C. statement was recorded, where accused Bashir Kaskhaili was also present. He was the same person who came down from the white car and opened fire. After six months he was called by the police for identification test. He identified the present accused from many dumies.

The identification test of accused Bashir Khaskhaili was held by A.C.M. Niaz Hussain Shah at the instance of Inspector Khursheed‑uz‑Zaman. According to the statement of Khursheed‑uz‑Zaman in Court accused Bashir Khaskhaili, who was arrested by S.I. Noor Khan of Special Investigation Cell (South), Karachi on 29‑12‑1990, was handed over to Inspector Khursheed‑uz -Zaman on the same day. The accused remained in custody of police from 29‑12‑1990 up to 23‑1‑1991 when even according to the prosecution case, his identification test was held. The delay of 26 days in holding the identification test is fatal to the prosecution case. No reason whatsoever has been given for this inordinate delay in holding the identification test. The Court had itself put the question to Inspector Khursheed‑uz‑Zaman whether he can give reason for not holding the identification test for 26 days. He replied that the delay was due to the fact that the eye‑witnesses were not prepared to be subjected to the identification test and were avoiding the same on the ground that they wanted to consult their Officers. This explanation is unsatisfactory. Whether the witnesses were willing or unwilling to be subjected to the identification test, had made no difference. The duty of the Investigating Officer was to put them 91 to an identification test without caring for their willingness and to have obtained the result of the test. In order to pinpoint him, the Court also itself asked from Insepctor Khursheed‑uz‑Zaman as to whether P.W. Ghulam Hussain was also avoiding to under go the identification test. He replied that he could not contact P.W. Ghulam Hussain up to 20‑1‑1991, as he was a driver and had gone to Balochistan. This reply appeared to be an afterthought and false. The reason is that he admitted that he had not mentioned in the Diary that P.W. Ghulam Hussain had gone to Balochistan and was, therefore, not available during that period. Had it been so, the Inspector was duty bound to mention this fact in the diary. The learned defence counsel made suggestions to the Inspector that during all this period P.W. Ghulam Hussian was in custody and was coerced to give 164, Cr.P.C. statement as well as to pick out the accused in identification test and to implicate him in this crime. It was also suggested that in case P.W. Ghulam Hussain did not do so, he was threatened to be implicated himself in this case as an accused. The Suzuki of this witness was also taken in custody of police and was then released to him without any security or `Sapurdaginama' as a reward for implicating the accused falsely. No doubt that the Inspector Khursheed‑uz‑Zaman had denied all these suggestions but from the admissions made by him during the cross-examination it is quite clear that these allegations are not unfounded. The letter for holding the identification test and the recording of 164, Cr.P.C. statement of P.W. Ghulam Hussain was given by Inspector Khursheed‑uz -Zaman to A.C.M. Niaz Hussain Shah on 21‑1‑1991. Alongwith this letter he produced two orders of the District Magistrate (East), Karachi, one was dated 13‑1‑1991 for holding identification test of accused Bashir Khaskhaili, which was received by the S.H.O. on 14‑1‑1991, and the other is order for recording 164, Cr.P.C. statement and it is dated 23‑1‑1991. Both the identification test memo and 164, Cr.P.C. statement were put in envelopes and sealed. According to the Magistrate on the day when the identification test was held and 164, Cr.P.C. statement was recorded respectively these were sealed on that day. The date of despatching the same is shown as 26‑1‑1991 on both these envelops. It is admitted by the Magistrate that the address in detail was typed on the sealed envelopes, while despatching the same. It is not possible to type on the envelope after it was sealed at least without causing damage to the seals. Hence the sanctity of the identification test on the face of allegation by the defence and admission by P.W. Ghulam Hussain that the identification test was held after the recording of 164, Cr.P.C. statement becomes highly doubtful. The Court cannot lose sight of the fact that the offence was committed on 6‑6 1990 and the identification test had taken place on 23‑1‑1991 i:e. more than six months after the incident and therefore, also the same cannot be relied upon. A witness cannot be expected to remember the face and features of an accused after such a long period particularly when he had seen him under such circumstances. The evidence of P.W. Ghulam Hussain is neither consistent, nor forthright. Even in his examination‑in‑chief he has stated that his 164, Cr.P.C. statement was recorded earlier where he had opportunity to see accused Bashir Kaskhaili. Thereafter, the identification test was held in which he took out the accused Bashir Kaskhaili. In such circumstances the identification test loses all its value. The witness has made further mass in his cross-examination and stated that, `when I opened Suzuki door of driving side to rescue my life and to run away for shelter and escape I could only see one person in front of me making firing and that person `probably' is the accused present in Court to whom I had identified. I `doubt' that this person was making firing. The accused present in Court was very much present on spot (this question was put directly by the Court to judge the real position). It is correct that I can say with sure that the accused present in Court that was making firing. There were three persons making firing in `total'. In his cross-examination he has made a clear admission that after the incident he had seen the accused for the first time before the Magistrate in the Court when his statement under section 164, Cr.P.C. was recorded. He has further admitted that it was correct that his identification test was held after 3/4 months of the recording of 164, Cr.P.C. statement. The use of the words `probably' and `doubt' regarding identity and the clear admission that identification test had taken place after recording of 164, Cr.P.C. statement takes away the entire value of the so‑called identification of the accused by the witness and renders it useless. He has further stated that he was handed over by the police to C.I.A. police where he was confined for 5/6 days. The police suspected him about involvement in the crime and he was asked to confess his involvement. He was released after his 164, Cr.P.C. statement was recorded. He has denied the suggestion that the police had asked him to identify the accused before the Magistrate and promised to release him on this condition. His denial appears to be doubtful in the circumstances. Statement of P.W. Ghulam Hussain is inconsistent with the statement of Investigating Officer Muhammad Akram Masood, who had recorded his 161, Cr.P.C. statement. S.I. Muhammad Akram Masood has not stated in his examination‑in‑chief that he had recorded the statement of P.W. Ghulam Hussain. However, in his cross‑examination he has stated that P.W. Ghulam Hussain was not present at the scene of offence. He searched for him and found him after two hours from a hotel in front of his house. He kept P.W. Ghulam Hussain with himself for 2/3 hours and then allowed him to go away. To a question put by the Court to S.I. Muhammad Akram Masood, he stated that he had recorded 161, Cr.P.C. statement of P.W. Ghulam Hussain after making enquiries from him, during these 2/3 hours, he kept the witness with himself. The disappearance of the witness from the scene of offence and his allegation that he had himself gone to the police station and the statement of the Investigating Officer that, he searched out and brought him from a hotel and recorded his 161, Cr.P.C. statement, show that‑he was an accomplice and was, not giving true statement. Therefore, his having been pressurised by police to confess being subjected to third degree methods and having implicated the accused under pressure to save his own skin, cannot be ruled out. No reliance therefore can be placed on the evidence of such a witness. The remaining eye‑witnesses as already stated have not claimed to identify the accused so much so that they were not even put to the identification test. Mr. Shaukat Zubaidi, learned Special Public Prosecutor first urged the Court to place reliance in the evidence of P.W. Ghulam Hussian but had to agree later on that if the Court comes to the conclusion that the evidence of Ghulam Hussain was not confidence inspiring and is to be ruled out of the consideration then the prosecution has no case. In view of the above discussion I have no choice but to hold that the evidence of P.W. Ghulam Hussain is inconsistent, unsatisfactory and unreliable, and therefore, cannot be made a basis for conviction.

8. The first piece of circumstantial evidence in this case is the arrest of accused Bashir Khaskhaili by Sub‑Inspector Noor Khan. On 29‑12‑1990 at 3‑00 p.m. in presence of two Mashirs Head Constables Ali Haider and Muhammad Ashraf, and recovery of S.M.G. Kalashnikov assault rifle alongwith a magazine containing ten live bullets from under his bed. It is an admitted position that Sub‑Inspector Noor Khan had received spy information of the availability of the accused involved in this crime at 2‑30 p.m. It is, therefore, clear that he was going to the place of his arrest on receiving spy information, and therefore, he could have taken private persons as Mashirs with him. Besides the place from where the accused was arrested and recovery was made, was admittedly a thickly populated locality and the time of such arrest and recovery being 3‑00 p.m. was not an odd hour, and therefore, in all fairness, the Sub‑Inspector should have taken private persons as Mashirs to witness the arrest of accused and recovery of the Kalashnikov assault rifle. The failure to do so in the above circumstances would make the arrest and recovery doubtful. Instead of taking two or more respectable inhabitants of the locality in which the place to be searched is situated and to witness the search as required under section 103, Cr.P.C. Sub‑Inspector Noor Khan has made two of his subordinates i.e. H.C. Ali Haider and H.C. Muhammad Ashraf as Mashirs. This is a clear violation of and a fraud on the above provision of law. By now it is a settled law that the selection of officers connected with the police is not contemplated by section 103, Cr.P.C. Reference in this connection may be made to the case of S.K. Fernandez v. The State A I R 1951 Bom. 468 (D.B.) where it was held that as far as possible the Investigating Officers should take as Mashirs persons who have nothing to do with the police at all and about whose independence and impartiality there can be no question. Hence when at the time of the arrest of the accused and the recovery of `Kalashnikov' assault rifle from his possession disinterested persons could be taken as Mashirs but were excluded, inevitable presumption would be that the recovery was fake and fictitious. I, therefore, hold that the arrest of the accused and recovery of Kalashnikov referred to above are doubtful.

Then comes the opinion of the Ballistic Expert that all the 16 crime empties and three pieces of lead of the bullets found at the scene of offence, were fired from the Kalashnikov, which was recovered from the accused. Since the recovery of the Kalashnikov from the accused is doubtful, the evidence of Ballistic Expert is rendered useless. The Kalashnikov assault rifle admittedly is not proved to be owned by accused Bashir Khaskhaili, and is not a licensed weapon, therefore, its licence being in the name accused does not arise. Apart from that empty shells and piece of the lead were lying at the police station from 6‑6‑1990 up to 13‑1‑1991. No reason has been assigned for delay in sending the same for opinion of the Ballistic Expert especially when even Kalashnikov was recovered on 29‑12‑1990. It is also strange that whereas three culprits are alleged to have fired at the inmates of the Suzuki, while standing on the ground and as many as 64 fire‑arm injuries were found on the persons of deceased and the injured, only 16 empties and three pieces of lead of the bullets have been found from the scene of offence and all these 16 empties shell and three lead pieces have been found by the Ballistic Expert to have been fired from the single Kalashnikov which is alleged to have been recovered from accused Bashir Khaskhaili.

Then comes the circumstantial evidence of pointing out of the place of the incident by the accused. Mr. Shaukat Zubaidi, learned S.P.P. conceded that place was already known not only to the police but to everybody. The pointing out of such a place cannot be treated as a circumstance against the accused and is not at all admissible.

The ill‑fated Suzuki which was fired at was not seized by the police. Only photographs of the same were taken which have been produced in Court. According to the ‑ Investigating Officer Muhammad Akram Masood the photographs were taken at the scene of offence, which was a desired place and there was no habitation and there were bushes all around while photographs of Suzuki‑ show that it was standing in a bungalow or in a building or a factory. The photographs also do not show any sizeable marks of damage to the Suzuki although it is alleged that bullets were showered on it for 8/10 minutes. It must be remembered that the circumstantial evidence such as recovery of crime weapon or the opinion of the Ballistic Expert is only supporting evidence. In the absence of direct evidence, the supporting evidence has no value, whatsoever. This proposition of law is so well‑settled that it does not require any authority to be cited. However, if any authority is needed reference can be usefully made to Saifullah v. The State 1985 S C M R 410, where it was held that where testimony of eye‑witness has been excluded the evidence of recovery of crime weapon is hardly of any use. Mr. Shaukat Zubedi, learned S.P.P. however, supported the prosecution case and asked for conviction of the accused, but looking to the state of evidence that has come on record, it is not possible to understand as to how he has taken such a stand. It may be reiterated that no eye‑witness other than P.W. Ghulam Hussain has implicated the accused. The implication of the accused by P.W. Ghulam Hussain is also neither consistent nor clear nor outright. Besides, the evidence of Ghulam Hussain is untrustworthy, unbelievable and highly doubtful. On the exclusion *of the evidence of the eye‑witnesses the evidence of recoveries is of no use. The so‑called corroborative evidence in the shape of recoveries and pointing out is in itself doubtful and inadmissible. Hence the. Court has no option, but to acquit the accused. I am, therefore, of the clear view that the prosecution has miserably failed to prove its case against the accused. I, therefore, hold the accused not guilty and acquit him of the above charge.

Though accused Asadullah Shah, appeared before police, but his name was shown in column No.2 of the challan as not sent up for trial and no evidence could be collected against him. Even during the trial no evidence has come against him.

Absconders Ghulam .Shabbir, Shabbir Ahmed, Afzal Chandio and Khursheed Bughio have also been shown in column No.2 of the challan, but as absconders. The evidence which has been recorded in this case does not implicate them. However, if and when they are arrested and any evidence implicating them is collected, the police is at liberty to challan them.

9. Before parting with the R&P of this unfortunate case, in which as many as 13 persons were shot dead and two persons were seriously injured by the terrorists on a highway in broad daylight, I would like to observe that though the investigating agency has failed in its duty to catch hold of all the culprits and to produce sufficient evidence before the Court even in support of the guilt of the only accused challaned in this case, but a general impression is being created that whereas the police had arrested the culprits, the Court has acquitted such culprits. It may be pointed out that duty of the Court is only to evaluate and assess the evidence collected by the prosecution and come to the conclusion whether it is sufficient to prove the guilt of the accused or not. The Court cannot on its own motion collect the evidence nor can it fill in the lacunas of the prosecution case. When evidence of such a nature that proves the guilt of accused beyond doubt, has not been produced before it, the Court is duty bound to acquit the accused. It is, therefore, recommended that superior Police Officers should not be hasty in bestowing praises and prizes on the subordinate Police Officers as soon as they arrest the accused persons and give a wrong impression to the general public that crime has been detected and the culprits have been brought to book. They should wait till the end of the trial. The praises and prizes to the Investigating Officers should be given only when their performance has been approved by the Court of law. .

N.H.Q./S‑819/K Accused acquitted.