AMJAD IQBAL Versus THE STATE

ALI NAWAZ CHOWHAN, J.‑‑‑ This judgment shall dispose of Criminal Appeal No.868 of 1999, Criminal Revision No.448 of 1998 and Murder Reference No. 108/T of 1999.

2. The matter pertains to case F.I.R. No.141, dated 8‑5‑1996 registered at Police Station Kunjah, District Gujrat, under sections 302, 324, 449, 109, 148 and 149, P.P.C.

3. These matters arise on account of judgment, dated 24‑9‑1998 handed down by Ch. Muhammad Shafique, Judge Special Court No.II, Anti‑Terrorism Act, 1997, Gujranwala Division, Gujranwala. Whereby, he convicted all the appellants under section 302, P.P.C. read with section 149, P.P.C. and sentenced them to death. He also sentenced them to pay compensation amounting to Rs.1,00,000 each or in lieu thereof, to suffer further six months simple imprisonment. The case of accused Munawar Butt, Nasir Butt and Muhammad Akram (not appellants before this Court) was separated as they were declared as proclaimed offenders. All the appellants were also convicted under section 449, P.P.C. for the trespass for the commission of murders and were sentenced to further imprisonment for ten years R.I. each and to a fine of Rs.25,000 each and in case of default they were to undergo rigorous imprisonment for one year each. It further transpired that two of the accused named Sharafrat Lohar and Nasir Moosia had been killed in a police encounter.

Whereas, Munir accused was acquitted of the charge and there is no appeal against his acquittal.

4. The massacre of nine persons including children took place in Dera Bhakoke, Mangowal Gharbi, Police Station Kunjah, District Gujrat, on the night between 7/8‑5‑1996. This was a family of Sarwar, the elder brother of Muhammad Anwar complainant (P.W.10) who at the relevant time were sleeping alongwith Ghulam Qadir deceased, a guest in their Haveli.

5. The complainant lived towards the south of the place of occurrence and both the houses share a common wall dividing their compounds. Muhammad Khan, an uncle of theirs, also lived towards the south and has a common wall with the complainant.

6. The accused, according to Muhammad Anwar, are inter‑related and this relationship has come in his testimony. However, Gulzar Ahmad is stated to be a gunman of the two accused Amjad Butt and Munawar Butt, while Ghulam Hussain and the acquitted accused Munir are the drivers of the said accused Amjad Butt and Munawar Butt, whereas, Fiaz Ahmad and Azam their bodyguards.

7. Allegedly the occurrence was reported by Anwar through his statement (Exh.P.O.), on the basis of which the F.I.R. was recorded. However, this F.I.R. was assailed within about 17 days through a writ petition before the Lahore High Court with the allegation that its text had been fabricated after obtaining the signatures of Muhammad Anwar complainant on a blank piece of paper.

8. The controversy became the subject‑matter of Writ Petition No.8015 of 1996 and the Honourable the Chief Justice of the relevant time ordered the transfer of the investigation to Mr. Ghulam Muhammad Kalyar, S.P., Crimes Branch at Lahore, against a list furnished by the I.‑G. Police and who was directed to constitute his own team officers for purposes of investigation.

9. Later, one of the accused Amjad Butt filed another Writ Petition No.8636 of 1996 and one finds the following observations in the order, dated 30‑5‑1996 of the Honourable the then Chief Justice:‑‑

"The investigation as per agreement of the parties is to be now conducted by Mr. Ghulam Muhammad Kalyar, S.S.P., Crimes Branch, Punjab, Lahore, who will select his own team and hold the investigation after recording the statement of the complainant. "

10. One also finds another order in Writ Petition No.8015 of 1996 while dealing with C.M. No.1703 of 1996 filed by Amjad Iqbal Butt accused asking for modification of the order dated 30‑5‑1996, whereby the petition was dismissed.

11. Muhammad Anwar, the complainant while attributing mala fides to Muhammad Younas Butt, Inspector, before whom the statement (Exh.P.O.) is said to have been recorded, adopted his statement under section 161, Cr.P.C. recorded by Mr. Ghulam Muhammad Kalyar on 2‑6‑1996 and in his testimony while appearing as P.W.10 before the trial Court, he supported his such statement and impugned Exh. P.O. In his testimony, he stated:‑‑

"On night between 7/8‑5‑1996 1 alongwith my mother Bakhat Bibi, my wife and children and my brother's wife Abida Bibi had gone to sleep in the courtyard of our house after locking the outer gate of my house as usual. The house of my brother Ghulam Sarwar was towards north of my house and there was a common wall in between the two compounds of the houses. Towards the south of my house the house of my uncle Khan Muhammad is located. There is a common wall of the compound of the house of my uncle Khan Muhammad and that of the compound of my house. On the night of occurrence my uncle Khan Muhammad alongwith his sons Ghulam Mustafa, Ghulam Murtaza, Muhammad Iqbal, his wife were lying asleep in the compound of their house. Electric bulb was on in my compound and so there was an electric bulb on in the house of my brother Ghulam Sarwar deceased and there was also an electric bulb on at the tube-well of my deceased brother Ghulam Sarwar located towards north of his house at a distance of about 25 yards. At about 3 a.m. on the unfortunate night of occurrence I heard the reports of fire shots and that of shrieks coming from the compound of my deceased brother Ghulam Sarwar. Myself, my mother Bakhat Bibi, my wife, my children and my brother's wife were awakened. Similarly the inmates of the house of my uncle Khan Muhammad namely Ghulam Mustafa, Ghulam Murtaza etc had also awakened. Ghulam Mustafa and Ghulam Murtaza P.Ws. had come into my compound after scaling over the common wall of their house and that of my house. A cot was lying near the common wall of the house of my deceased brother Ghulam Sarwar and that of mine. Myself, my mother Bakhat Bibi and Ghulam Mustafa and Ghulam Murtaza P. Ws. went on the cot and looked over the common wall and saw the accused tiring indiscriminately and recklessly at the deceased. I recognized all the accused in the light of the electric bulbs comprehensively.

Accused Amjad Butt, Nasir Butt, Sabir Butt, Sadiq Butt, Naseem Gulzar Ahmad, Sharafat Lohar, Muhammad Akram and Ghulam Hussain were armed with kalashnikovs while accused Munawar Butt. Ansar Butt, Javed Butt, Azam Kharal and Allah Ditta accused were armed with .22 bore rifles. Accused Asghar Butt, Ashiq Butt, Muhammad Saleem were armed with .7 mm rifles. Accused Fayyaz Ahmad, and accused Ajmal Khan were armed with .223 bore rifles and accused Rashid Butt was armed with .8 mm rifle. All the accused had resorted to wanton firing for nearly about one hour. While passing near my outer gate ell the accused also fired at my main gate. The bullets after piercing through the outer main gate had struck the walls of my house. Thereafter, all the accused decamped and went towards their Dera located towards south of my house at a distance of one acre. The occurrence was witnessed by me besides my mother Bakhat Bibi besides P. Ws. Ghulam Mustafa and Ghulam Murtaza. At day dawn after rising of the sun, myself, my mother Bakhat Bibi, alongwith P. Ws. Ghulam Murtaza and Ghulam Mustafa went to the house of Ghulam Sarwar and found all the nine deceased lying dead on their respective cots in the compound of their house. Profused blood was lying underneath the cots of all the nine deceased, and empties about 400/500 were lying scattered around the cots of the deceased. About 100/ 150 empties were also lying near the outer main gate of my house. I left for Police Post Mangowal after leaving behind P.W. Bakhtar Bibi, Ghulam Mustafa and Ghulam Murtaza to guard the dead bodies and there I narrated the entire incident to Incharge Police Post Mangowal Ghulam Sarwar. He reported the matter to Police Station Kunjah."

12. Highlighting the motive aspect of the case, Muhammad Anwar complainant stated:‑‑

"About a year preceding the present occurrence Kausar Bibi deceased daughter of my deceased brother Ghulam Sarwar was married at Bhalwal District, Sargodha. Walayat Butt father of accused Amjad Butt and Munawar Butt had visited Bhalwal City in connection with the Walima ceremony of said Kausar Bibi wife of Altaf Ahmad. On his way back he was murdered alongwith his companion Asghar Sahi by his enemies. After murder of Walayat Butt when his dead body was brought in village Bagrianwala, Police Station Kunjah, my deceased brother Ghulam Sarwar and his deceased wife Mst. Rasoolan Bibi had gone to condole his death. Where accused Amjad Butt, Munawar Butt and their womenfolk manhandled Mst. Rasoolan Bibi and shut her in a room and my deceased brother Ghulam Sarwar was also maltreated by them. We pleaded the innocence of our brother Ghulam Sarwar deceased and Mst. Rasoolan Bibi but they did not accept our plea rather they were adamant to say that their father Walayat Butt was murdered as Rasoolan Bibi has acted as an informer to the enemies of Walayat Butt and for that matter Walayat Butt had been murdered by his enemies. Thereafter, the marriage ceremony of my brother Saleem had taken place and we had sent Dawat‑e‑Walima Cnrd to Amjad and Munawar Butt. The accused kept the card but did not attend the marriage. We had also sent the marriage meal to accused Amjad and Munawar Butt but they had returned the same."

13. Ghulam Murtaza (P.W.11) is the cousin of the complainant and is a resident of the adjoining house. Who claimed that he was the eye?witness of the occurrence and supported the statement of the complainant, referred to above.

14. Mst. Bakhat Bibi, the mother of the complainant, however, was not produced in this. case.

15. Muhammad Younas Butt, Inspector (C.W.2) had partially investigated this case before its transfer to Mr. Ghulam Muhammad Kalyar, S.P., on allegation that the Inspector had spoiled the case of the prosecution. Anyway, according to Muhammad Younas Butt, Inspector, he recorded the statement of Anwar (Exh.P.O.). But went on to explain that as a matter of fact it was scribed by Rai Muhammad Akbar, Sub?lnspector at the dictation of Muhammad Anwar P.W. and under his directions and that Muhammad Anwar after the statement was read over to him had signed it in token of its correctness and on the basis of which the F.I.R. at Police Station Kunjah (Exh.P.O./l) was recorded.

16 Anyhow, he prepared the inquest reports and the injury statements of the nine deceased and dispatched the dead bodies to the mortuary for post‑mortem examination through Nadir Khan, S:‑I. Police Station Kunjah. He took blood‑stained earth into possession from nine places where the dead bodies were lying, vide memo. Exh.C. W.2/M (Exh.P.J.). He also took into possession 66 , empties cartridges (P.29/1‑66) of kalashnikov, 32 empties of rifle .8 mm (P.30/1‑32). Another four live bullets of rifle .8 mm (P.31/1‑4) and 18 leads (P.32/1‑18) which were lying near the dead bodies vide memo. Exh.C.W.‑2/N) and were sealed into a parcel. He. also took some other articles into possession (P.33 to P.71) vide memo. Exh. P. L. He prepared the rough site plan (Exh.C.W.2/Q) and took the last‑worn clothes of all the deceased from Nadir Khan, S.‑I., after the post‑mortem examination. According to him, he recorded the statements of the eye‑witnesses on the spot.

17. In his testimony, it has come on record that on 8‑5‑1996 he had arrested accused Ashiq Hussain, Muhammad Akbar, Muhammad Asghar, Ansar, Ghulam Hussain, Ajmal Khan, Amjad Iqbal, Muhammad Akbar son of Sardar Khan and Abdul Majeed under sections 107/151, Cr.P.C. when he found them armed with various weapons. However, he arrested on the same day, Amjad Iqbal Butt, Muhammad Asghar, Ashiq Hussain and Ajmal Khan on the identification of Ghulam Mustafa and Ghulam Murtaza P. Ws. and the complainant.

18. While perusing Exh.P.O., one finds the followed sentence pertaining to the assailants:‑‑

1J i

~‑ ~J>'~ ~b~ Z ~ 1 y t j uh'~.~‑Gtf'1~> vrrii‑ l~

Before t its sentence, the motive part of the story as has been stated by the complainant and referred to above, was mentioned. While it was said that the complainant side had no enmity with anyone else. As Exh. P.O. is a part of the file, all its contents need not be repeated.

19. Dr. Bushra Riaz (P.W.1) had conducted the post‑mortem examination on the dead body of Mst. Rasoolan Bibi and she found the following fire‑arm injuries on her person‑‑

"(1) A lacerated fire‑arm wound of entry approximately .5 x 2 c.m. at outer side of right upper arm with fracture of underline bone

(2) ??????? Lacerated fire‑arm wound of entry approximately I x 1 c.m. at front of left chest.

(2‑A) A lacerated fire‑arm wound of exit 2 x 2 c.m. at back of left chest.

(3) ??????? Lacerated fire‑arm wound of entry approximately 1 x 1 c.m. almost 2 c.m. below the injury No.2.

(3‑A) A lacerated fire‑arm wound of exit approximately 2 x 2 c.m. almost 4 c.m. below the injury No.2‑A.

(4) ??????? A lacerated fire‑arm wound approximately 1/2 x 1/2 c.m. at epigastrium.

(4‑A) A lacerated fire‑arm wound approximately x c.m. at right side of lumber area.

(5) ??????? A lacerated fire‑arm wound of entry approximately 3/4 x ? c.m. at the lower part of front side of right side of chest.

(5‑A) A lacerated fire‑arm wound 1.5 x 1.5 c.m. at the right line.

(6) ??????? A lacerated fire‑arm wound of entry approximately 1 x 1 c.m. just right side of umbilicus.

(6‑A) Lacerated fire‑arm wound of exit approximately 1‑1/2 x 1‑1/2 c.m. just lateral to injury No.5‑A."

These injuries were ante‑mortem and were sufficient to cause death. Exh.P.A. is the post‑mortem report.

20. On the same day, the said Lady Doctor also performed the post?mortem examination of Mst. Kausar Bibi and found the following fire?arm injuries:‑

"(1) Wound of entry lacerated on right breast 1 x 1 c.m. exit on right back of chest 3 x 3 c.m.

(2) ??????? Wound of entry 2 x 2 c.m. on right side of abdomen. omentum was coming out, Wound of exit on right back lumber region 3 it 4 c. m.

(3) ??????? Wound of entry l x 1 c.m. on backside of right thigh. Wound of exit on front of right thigh 2 x 3 c.m.

(4) ??????? Wound of entry on right elbow inner side 1 x 1 c.m. wound of exit lacerated on outer side of elbow 3 x 2 c.m."

Exh. P.B. is the post‑mortem report.

21.The autopsy on the person of deceased Qamar Bibi was also performed by the same Lady Doctor, who found the following injuries on her person:‑‑

"(1) Wound of entry lacerated wound 1 x 1 c.m. on inner side of right foot wound of exit lacerated 4 x 4 c.m. on back of lower leg.

(2) ??????? Wound of entry 1 x 1 c.m. lacerated on right arm (upper). Wound of exit 8 x 6 c.m. in axilla.

(3) ??????? Lacerated wound of entry on right outer side of shoulder. Wound of exit lacerated excavated 4 x 4 c.m. on inner shoulder.

(4) ??????? Lacerated wound 3 x 3 c.m. on right arm

(5) ??????? Wound of entry lacerated on left inner thigh 1 x 1 c.m. wound of exit 3 x 2 c.m. on outer left thigh.

(6) ??????? Wound of entry on left outer side of left thigh 1 x 1 c.m. wound of exit lacerated right later side of 2 c.m. x 2 c.m.

(7) ??????? Wound of entry lacerated on backside of right chest x 1 c.m wound of exit of right axilla 4 x 4 c.m.

(8) ??????? Wound of entry lacerated on lateral upper hip 1 x c.m. wound of exit on right posterior hip 2 x 2 c.m.

(9) ??????? Wound of entry 1 x 1 c.m. on lateral side of right hip. Wound of exit on right buttock.

(10) Wound of entry 1 x 1 c.m. on right side of lumber back. Wound of exit on left lumber region. Foreign metallic body found which was handed over to police.

(11) Wound of entry 1 x 1 c.m. on dorsal lateral wrist (left exit wound of 3 x 2 c.m. on ventral side of left wrist.

(12) Four small lacerated wound on front of abdomen .5 x .5 c.m. each superficial."

Exh.P.C. is the post‑mortem report.

22. Dr. Muhammad Alam (P. W.2) conducted the post‑mortem examination on the dead body of Ghulam Qadir and found the following fire‑arm injuries:‑‑

"(1) A big lacerated wound 6 x 6 inches on the right side of the lower part of the right side of the abdomen with blackening around.

(2) ??????? A big laceration 3 x 3 inches on the medial side of middle, of right arm."

Exh. P. D. is the post‑mortem report.

23. The autopsy on the person of Sultan Ahmad was also performed by the same doctor, who found the following fire‑arm injuries on his person:‑‑

"(1) Fire‑arm wound on the left side of the neck

(2) ??????? A fire‑arm wound on vertex

(3) ??????? Lacerations and multiple fractures of the bones of the left hand and wrists.

(4) ?????? Fire‑arm wound on the front of the left shoulder.

(5) ??????? Fire‑arm wound on the back of the left thigh.

(6) ??????? Fire‑arm wound on the left lower abdomen."

Exh: P. E. is the post‑mortem report.

24. Dr. Hamid Rafique (P. W.3) conducted autopsy on the dead body of Shagufta Bibi and found the following fire‑arm injuries on her person:‑‑

"(1) Two wounds on left thigh .5 x .5 c.m. each size and two c.m. apart on back of thigh 24 c.m. above the popliteal fossoca. (wound of entry).

(2‑A) Wound of exit on left thigh medial aspect 2. x 6 c.m. size 5 c.m. below inguinal ligament.

(2) ??????? Wound of entry on back of right shoulder .5 x .5 c.m. size, 7 c.m. below, countour of shoulder with blackening of margins.

(2‑A) Wound of exit on back of right chest x 1 c.m. size at mid?clavicularline 20 c.m. below clavical.

(3) ??????? Wound of entry 1.5 x 1.5 c.m. size at mid‑vertebrail line 10 c.m. below nape of neck. Margins were black on back of right chest.

(3‑A) Wound of exist 3 x 3 c.m. size on front of abdomen left side 7 c.m. below umbilicus.

(4) ??????? An excavating wound on front of abdomen adjacent to injury No.3‑A.

(5) ??????? An excavating wound with blackening of margins 4 x 2 c.m. size 4 c.m. below injury No. 3‑A in public area.

(6) ??????? A burnt area on right side of neck 1 x 1 c.m. in size.

Exh. P. F. is the post‑mortem report.

25. The same doctor conducted the post‑mortem examination on the dead body of Nadia and found the following injuries:‑‑

"(1) Wound of entry .5 x .5 c.m. size on left side of abdomen 3 c.m. from midline and 10 c.m. below left nipple.

(1‑A) Wound of exit on left chest back side 3 x 2 c.m. size 20 c.m. below clivical.

(2) ??????? Wound of entry on left side of abdomen .5 x .5 c.m. below umbilicus.

(2‑A) Wound of exit on left side of back of abdomen 4 x 3 c.m. size, 10 c.m. away vertebral column.

(3) ??????? Wound of entry on left thigh medial side 30 c.m. above the knee joint and enteriorly.

(3‑A) A wound of exit on lateral aspect of left thigh at illiac crest 3 x 3 c.m. size."

Exh P G is the post‑mortem report.

26. Dr. Muhammad Ansar (P.W.4) conducted the post‑mortem examination on the dead body of Ghulam Sarwar and found the following injuries:‑‑

"(1) Fire‑arm wound of entry 1 x 1 c.m. on postro lateral surface of right upper arm.

(1‑A) Exit, wound 12 c.m. x 7 c.m. having pieces of bone on interior surface of right lower arm.

(2) ??????? .Fire‑arm wound of entry 1 x 1 c.m. on lateral part of interior surface of right upper fore‑arm.

(2‑A) Exit wound 7 x 3 c.m. on postro lateral surface of right fore?arm.

(3) ??????? Fire‑arm wound of entry 1 x 1 c.m. on medial aspect of right lower fore‑arm near wrist.

(3‑A) Exit wound 1.5 x 1 c.m. on anterior lateral surface, of right fore‑arm near wrist.

(4) ??????? Fire‑arm wound of entry 2 x 1 c.m. on front of chest about middle of sternum.

(4‑A) Wound of exit 2 x 2 c.m. on back of right chest just near midline at level of upper border of scapula.

(5) ??????? Fire‑arm wound of entry 1 x 1/2 c.m. on left side of Xifi‑sterna fossa on left chest.

(5‑A) Exit wound 2 x 2 c.m. on back of chest just on left side of midline.

(6) ??????? Fire‑arm , wound of entry 1 x 1 c.m. just below left nipple.

(6‑A) Wound of exit 2 x 2 c.m. on back of left chest.

(7) ??????? Fire‑arm wound of entry 1/2 x 1/2 c.m. on right side of base of neck.

(7‑A) Exit wound 4 x 3 c.m. on right posterior aspect of base of neck.

(8) ??????? Fire‑arm wound of entry 1/2 x 1/2 c.m. on left aspect of neck 3 c.m. posterior and below to left ear.

(8‑A) Exit wound 4 X 3 c.m. on right side of head, 3 c.m. posterior to upper part of right ear. "

Exh. P. M. is the post‑mortem report.

27. The said doctor also performed the autopsy on the dead body of Yasir Mehmood (a child) and found 'the following injuries:‑‑

"(1) Fire‑arm wound of entry 2 x 2 c.m. on back of upper chest just on left side of midline.

(1‑A) Exit wound 6 x 4 c.m. on back of left lower chest 5 c.m. from midline.

(2) Excavating fire‑arm wound 2 x 1 c. m. on front of left knee."

Exh.P.N. is the post‑mortem report.

28. All these injuries were undisputedly caused by fire‑arms and for more details, we have the testimonies of the doctors, already recorded by the trial Court and need not be repeated for purposes of our judgment.

29. Nadir Khan (P.W.5) had taken the dead bodies for autopsy and collected their last‑worn clothes which he handed over to Inspector Muhammad Younas Butt who took the same into possession vide memo. Exh.P.H. He. witnessed the securing of blood‑stained earth (Exh.P.J.) and the bullets (P.K.). He also witnessed the taking into possession the quilt, Charpai, pillow etc. (Exh. P. L. ).

30. Bahu Khan. A.S.‑1. (P.W.6) had taken the non‑bailable warrants for the arrest of Javed lqbal, Ansar, Munawar Hussain, Nasir, Ghulam Hussain, Sharafat, Naeem, Saleem, Muhammad Sadiq, 'Muhammad Sabir, Gulzar, Fiaz Ahmad, Muhammad Azam, Muhammad Rasheed and Muhammad Akram, whom he could not trace. However, he did not get his report attested by the Chowkidar, Lumberdar or a respectable of the area.

31. Mujahid Farooq, A.S.‑I. (P.W.7) had registered the F.I.R. Exh.P.O. / 1. He also received sealed parcels of the case property which he stored in the Malkhana, and later handed these over to Muhammad Zaman, Constable, for delivery at the office of Chemical Examiner and Forensic Science Laboratory, Lahore.

32. Muhammad Zaman, Head Constable (P. W .8) corroborated the statement of Mujahid Farooq, A.S.‑I. (P.W.7).

33. Rustam Ali, Sub‑Inspector (P.W.13) took into possession licensed .44 bore rifle of Ghulam Hussain accused given by someone else. Akbar Ali (P.W.14) had obtained proclamations against the absconding accused. Shahzada Saleem, Inspector (P.W.16) was a Member of the Investigation Team. On 10‑2‑1997 he arrested Rashid Butt accused and raided his house and recovered Rs.50,000 as well as two .30 bore pistols, two .7 mm rifle and one .222 bore rifle which were taken into possession vide memo. Exh.P.F. He also raided the house of one Aurangzeb and recovered .222 bore licensed rifle and .30 bore pistol. He also took into possession a yellow cab car vide memo. Exh.P.Y.

34. Masood Ahmad Bhatti, Draftsman (C.W.1) prepared the site plans (Exh.C.W.I/A and Exh.C.W.I/B) after spot inspection on 9‑5=1996 and entered his notes in black ink.

35. On the investigation side, we have the statement of Khalid Mehmood (P.W.9) who had partially investigated the case on 19‑9‑1996 and had arrested Gulzar Ahmad, Muhammad Saleem, Muhammad Azam and Ansar Mehmood, who were proclaimed offenders. He latter arrested on 3‑10‑1996 Muhammad Sadiq, Javed Iqbal, Muhammad Naeem, Allah Ditta, Sabir Hussain and Riaz Ahmad who too were proclaimed offenders. He also took into possession weapons which were licensed and the detailed of which are .222 bore rifle belonging to Ansar Mehmood (Exh.P.72) and its licence (Exh.P.73); licensed .12 bore gun of Muhammad Saleem; .30 bore unlicensed pistol of Muhammad Naeem which was produced by Ali Ahmad; and .12 bore gun of Allah Ditta which was also produced by Ali Ahmad; rifle .8 mm (P.78) and its licence (P.79) of Sabir Hussain accused produced by Ali Ahmad.

36. A.S.P. Dr. Amir A. Sheikh (C.W.3) partly investigated the case on 15‑5‑1996 with the help of four Inspectors including Younas Butt. He examined the place of occurrence. According to him, the complainant side never appeared despite being summoned. On the spot on 16‑5‑1996 he got recovered a pair of sleeper (P.91/1‑2), blood‑stained, when the investigation was transferred. According to him, it did come to his knowledge that the deceased Mst. Rasoolan Bibi was confined by the Butts in their house and she secured her release with the intervention of one Sarwar, Chairman of Lakhanwal. He could not give any final opinion as the investigation was incomplete.

37. Tassaduq Hussain (C.W.4) was the Senior Superintendent of Police, Gujrat. The case was handed over to him for investigation as a head of the team comprising Mr. Amlish, S.P. Crimes Lahore and Malim Muhammad Aslam, D.S.P. Sadar posted at Sargodha from where he had been called. The team had summoned the parties and according to him, the team found the following persons guilty: (1) Muhammad Munir, Driver (2) Ghulam Hussain, Driver, (3) Munawar Butt, (4) Sabir Butt, (5) Muhammad Akram of Rajake, (6) Nasir of Moosia and (7) Sharafat Lohar. He went on to say that the following persons were found having the knowledge of the offence and their names are: (1) Rashid Butt, (2) Nasir Butt, (3) Ansar Butt, (4) Amjad Butt, (5) Asghar Butt, (6) Ashiq Butt, and (7) Sadiq Butt. The team further found the following persons were not the guilty of the offence and their names are: (1) Gulzar, (2) Azam, (3) Saleem, (4) Ajmal Pathan, (5) laved Butt, (6) Allah Ditta, (7) Naeem, and (8) Fayyaz. He went on to say that the conclusions arrived at by the panel in respect of the aforementioned persons and regarding their guilt or innocence were unanimously complete and comprehensive and which were taken down in the Police Diary No.101 of 30‑3‑1997. That the conclusion arrived at by the team was that this massacre had taken place at the hands of the Butt Group by which he meant the family of Walayat Butt (deceased) and those were recommended for being challaned. He formulated his reasons (A to I) in his statement before the trial Court. He went on to say:‑‑

"I have correctly recorded in my findings that Nasir Moosia and Sharafat Lohar, P.Os. are the actual accused of the nine murders who after arming themselves with .8 mm rifles and kalashnikovs fired at the deceased persons and done them to death. I have correctly given any finding that Ghulam Hussain, Munawar Butt, Sabir Butt and Akram Rajake hatched a conspiracy for the murders of these persons and Ansar Butt, Rashid Butt, Nasir Butt, Amjad Butt, Asghar, Ashiq and Sadiq Butt have also proved to be accused as the fact was in their knowledge that a conspiracy for the murder of Rasoolan and her other family members has been plotted and if those persons were so willing they could have intervened in the matter. "

38. Ghulam Muhammad Kalyar, S. P. (P.W.12) took over the investigation on 2‑6‑1996 and he recorded the statement of Muhammad Anwar on that date. He went to the spot alongwith the Investigation Team and carried out an inspection. He directed the S.H.O. Police Station Kunjah Younas Butt P.W. to have a supplementary site plan prepared with scales showing the place from where while standing on the cot the eye‑witnesses had across the wall, seen the compound of the place where the massacre had taken place in the light of the bulb which was burning there. He also discovered that the main gate of the house of Muhammad Anwar was riddled with holes of bullets. He recorded the statements of Ghulam Mustafa, Ghulam Murtaza and Mst. Bakhat Bibi on 5‑6‑1996 in his office at Lahore. He interrogated the accused Amjad, Ashiq, Asghar and Ajmal Khan who had already been confined in District Jail, Gujrat, as well as Munawar Hussain and Muhammad Rashid who were then on interim bail. Javed Iqbal, Nasir, Ansar, Ghulam Hussain, Gulzar, Allah Ditta, Muhammad Akram, Fiaz and Azam were also interrogated but he did not arrest them although they were not on bail. According to him, Munawar Butt and Rashid Butt who had earlier obtained their interim bail had absconded when called by the trial Court. He later searched for the accused Muhammad Sadiq, Sabir, Gulzar Ahmad, Muhammad Azam, Muhammad Akram and Fiaz who were not traceable. He then sent an order to the S. H.O. Police Station Kunjah for tracing out the accused but none could be traced. He then obtained their non‑bailable warrants and deputed his Naib‑Reader for their execution. He went on to say that during investigation accused Ajmal, Amjad, Ashiq and Asghar appeared before him. He then returned the file and went back to Lahore When on 25‑6‑1997 he was re‑entrusted the file by the I.‑G., Punjab and he tecnmmended.that ail the aCCiLsed 11P ch‑,11uncu.

39. Fazal Karim, (C.W.51. Sub‑Inspector, was at the relevant time posted as Personal Staff Officer of Ghulam Muhammad Kalyar, S. P. , Hafizabad and he had summoned the parties for finalization of the investigation. He went on to say:‑‑

"Both the parties could not be located and fail to obtain the investigation. I was advised by Muharrer Mehdi Hassan of Police Station Mangowal to go to village Matta to ascertain about the presence of both the parties from Razaatta. Iwas informed by Raza Matta that the complainant party is with Kh. Muhammad Sharif, Advocate of Lahore High Court, Lahore and would be available in his office. On 10‑7‑1997 I went to the office of Kh. Muhammad Sharif, Advocate and examined P.W. Muhammad Anwar, Mst. Bakhat Bibi, Ghulam Mustafa and Ghulam Murtaza and recorded their statements and thereafter I produced the file, to the S.P."

40. In their statements under section 342, Cr.P.C: the case of the appellants was one of denial and they pleaded their innocence. Amjad Iqbal Butt denied the motive part of the story and stated that his family had good relationship with Mst. Rasoolan Bibi and Ghulam Sarwar deceased and they did not suspect Mst. Rasoolan Bibi against any conspiracy in connection with the murder of Walayat Butt. He went on to say that he and the members of the Butt family had been falsely roped in the case for political reasons because of election rivalry with Chaudhry Group of Gujrat, whom Walayat Butt and his family opposed. Although in the beginning, Walayat Butt was supporter of the Chaudhry Group.

That he came closer to another group headed by Ch. Mukhtar of the Pakistan Peoples Party and thus enraged the other side on the political plain and thus conspiracy was hatched and as a result of election rivalry, Chaudhry Brothers and another family headed by Raza Matta had impleaded all the adult members who were bread‑winners of the Butt family in this case so that the defence was rendered helpless. He went on to say:‑‑

"As a matter of fact Sharafat Lohar, Nasir Moosia were the party, men of Raza Matta, through their agony the present nine murders were committed. Mst. Rasoolan as I have already stated above was spoken sister of Walayat Butt and myself and other members of my family could never think of murdering the nine deceased persons. If we suspected the hand of Mst. Rasoolan in the murder of Walayat Butt we could easily involve her on Ghulam Sarwar or any of her relatives in the murder case of Walayat Butt. As alleged they have not been roped in as conspirators in the F.I. R. which was lodged by me for the murder of Walayat Butt. The accused who were arrayed as such in the F.I.R. for the murder of Walayat Butt are Raza and his brothers and his other relatives and one Mian Khan and his sons. Moreover, out Dera is at a distance of two furlongs from the place of occurrence and during this long course of one year Mst. Rasoolan and Ghulam Sarwar would have been easy pray to us, if we had an intention to assassinate Mst. Rasoolan and Ghulam Sarwar or his other family members The fact that Walayat Burt was to attend the Walima ceremony of Kausar Bibi at Bhalwal was an open secret and was known to everybody. The various investigations which were carried in this case were at the behest of Chaudhry Brothers who were influential persons not only in the Punjab but throughout the Pakistan and their influence in the affairs of the State are always dominating. They influenced the members of the various Investigating Agencies and were successful for obtaining verdict against us. Muhammad Anwar, Ghulam Mustafa and Ghulam Murtaza P. Ws. after this murder were in a way made captive by Chaudhry Brothers and Raza Matta and they were given various jobs in the factories and concerns of Chaudhry Brothers. They were first of all taken by Chaudhry Brothers to Lahore and when the present trial started they were shifted to Natt native village of Chaudhry Brothers. So much so that Raza Matta kept a strong surveillance on the abovesaid P. Ws. and before Ghulam Muhammad Kalyar he produced them in the office of Kh. Muhammad Sharif, Advocate of Lahore who was a permanent Legal Advisor of Chaudhry Brothers. Nobody from the vicinity of venue of crime or from the surrounding areas appeared before the police to corroborate the false version of the prosecution and as a matter of fact large number of persons had appeared before the various Investigating Agencies who vouchsafed my innocence and that of my other relatives. Walayat Butt as a contractor for holding cattle fairs and the sales of the cattle in Gujranwala Division and was also running a tannery called as Dabagh Tanneries at Kasur and Ghulam Sarwar used to assist him in the sales of cattle as well as in the aforesaid tannery. Muhammad Anwar, Ghulam Mustafa and Ghulam Murtaza P. Ws. who were jobless for many years for several times approached Walayat Butt as well as myself to provide them some job or some employment for them but Walayat Butt as well as myself and Munawar Butt kept them at arms length and" always discourage them because they were inimical and were also jealous of Ghulam Sarwar and his family so they also nursed a grudge against me and Walayat Butt and they have taken this opportunity by a fore‑lock and falsely installed themselves as eye‑witnesses in this case. The occurrence has taken place during the dark hours of night when nobody was present."

41. The Forensic Science Laboratory, who had received the empties, had grouped the empties into two categories. According to its report, 66 crime empties of 7.62 mm bore (C‑1 to C‑66) were fired from a weapon of 7.62 mm bore and the crime empties of .8 mm bore marked as C‑67 to C‑98, were also grouped having been fired from a weapon .8 mm bore. The empties, however, were not found wedded with the recovered weapons sent to the Laboratory.

42. The learned counsel appearing on behalf of the complainant side during the course of his arguments has called Gujrat as a cursed district where invariably the murder cases get politicized on the basis of political rivalry existing there. This' case has, been no exception to that and there is lot of material bone on the file which speaks of this.

43. Exh. P.O. was disowned totally by the complainant on the allegation .that Muhammad Younas Butt, the Inspector/ S. H. O., Police Station Kunjah was favouring the accused side. That not only he was a Butt by Caste but was influenced by a former Minister in whose constituency this area fell and who belonged to their rival group in the political divide. In cross‑examination, Younas Butt, Inspector P.W. admitted that he was on visiting terms with accused Amjad Butt and also his family. It also appears that on 8‑5‑1996 he arrested nine amongst the accused having found them armed under sections 107 and 151 of the Cr.P.C. He had recorded the statements of the witnesses and on the same day had also arrested Amjad Iqbal Butt, Muhammad Asghar, Ashiq Hussain and Ajmal Khan in this case. According to eye‑witness Murtaza, his statement under section 161, Cr.P.C. was recorded for the first time by Mr. Ghulam Muhammad Kalyar, S. P. , and this shows that Younas Butt, Inspector, did not even care to record the statement of such an important witness on the same day. It has come in the statement of Mr. Ghulam Muhammad Kalyar, S.P., that he had directed the S. H.O. Police Station Kunjah Muhammad Younas Butt, to prepare a supplementary site plan but he did not. care. That he also did not make efforts to trace out the accused. It is also strange that Younas Butt had directed a Sub‑Inspector to record the impugned statement (Exh.P.O.) who was not produced befpre the Court for establishing its authenticity.

44. On the other side, we have the statement of Fazal Karim (C.W.5). According to whom, he recorded the statement of Muhammad Anwar under section 161, Cr.P.C. as well as of other witnesses while they remained in the office of their counsel at Lahore. This also is very strange.

45. The case certainly was politicized. But the question is whether Exh.P.O. was fabricated or was correctly endorsed and as an afterthought the writ petition was filed and the net widened. Certainly, Younas Butt, Inspector, was more biased towards the accused side and some of the facts narrated above do support this theory.

46. We also find that Ghulam Muhammad Kalyar, S. P. who was recommended for finding a clue with respect to the assailants was not of much helpful. By stating that all the accused named by Muhammad Anwar complainant in his statement under section 161, Cr.P.C. be challaned, he was trying to play safe. He did not carry out the investigation meticulously which was required of him and this is evident when we appraise his testimony. ?

47. The F.I. R. may be the first information about the happening of the crime. But whether acts narrated therein are true or not, is a question which has always to be considered by the Court at the time of exercising its adjudicatory powers. However, if a F.I.R. is disowned on good grounds then it may just be regarded as a First Information of the A occurrence but not a report of facts about it. And the facts may be gathered from the testimonies of, the witnesses who appear in a Court with scant regard to the facts narrated in impugned text of a First Information Report. Reference in this connection may be made to the case of Ghulam Muhammad alias Gulla and others v. The State PLD 1969 Lah.

114. Which was vehemently relied upon by the learned counsel for the complainant.

48. But we are not very sure whether both the parties were speaking the truth. Even with respect to the statement of the complainant Muhammad Anwar, we have to be skeptical after the whole issue was politicized. And the parties started manoeuvring on the basis of the legal advice which they were receiving. We have prepared a. table (Appendix "A"), on the next page i.e. 32, reflecting the names of the accused who were found involved in this case by the different Investigating Officers, the complainant in his statement under section 161, Cr:P.C. and what was reflected in Exh. P.O. Appendix "A" also reflects the names of the accused who are either absconding have been killed.

49. Learned counsel for the appellants on the basis of the grouping done at the Forensic Science Laboratory has contended that two types of weapons were mused. While punting from the testimony of Tassaduq Hussain, S. P.. he went on to say that the real assailants were Sharafar Lohar and Nasir Moosia who have been now killed. During the course of arguments, it came to tight that these two were hired assailants. But we find that Muhammad Younas Butt, Inspector on the same day had arrested four accused named Amjad Iqbal Butt, Muhammad Asghar, Ashiq Hussain and Ajmal Khan in this case. This shows that even on 8‑5‑1996 the complainant party was pointing towards them whereas the rest of the accused were arrested by him under the preventive law while they were armed but strangely in a one sided action on his part.

50. We are also of the view that the statement of Muhammad Anwar complainant subsequently recorded on 2‑6‑1996 under section 161, Cr.P.C. wherein; he had mentioned the names of twenty accused alongwith the arms they were equipped with, cannot be completely believed. It is difficult to remember all such details. Besides, there is always an element of human error or of false involvement of persons during a long interregnum, and during which deliberations and political influence do play a role. This aspect appears strong in this case. The burden is, therefore, heavy on us for finding the truth.

51. One of the hypothesis is that in a surreptitious night assault like the one under reference, an influential family with political and criminal background who had even kept hired assassins, would not be so abrupt or careless in sending twenty armed men for killing another family from whom no resistance was expected rather who were expected to be asleep, then. On the other hand,. a prudent desire will be of displaying a numerical strength which was as little as‑possible particularly, when the assault is planned through the use of automatic weapons and not through single barrel anachronistic guns. The other hypothesis is that there will be more involvement and participation at the stage of conspiracy and planning against a rival family rather than during the execution part of the plan.

52. Where versions of the parties are not fully truthful and are riot helpful for purposes of just adjudication, the Courts have to fall back on their own wisdom, experience and have to draw their own inferences based on the hypothesis, which appears cogent, sensible, coherent, truthful and compatible with the facts borne on record. For these views, we may take support from the following cases: (1) Syed Ali Bepari v Nibaran Mollah and others PLD 1962 SC 502; (2) Ahmad Khan v. Nazeer Ahmad and others 1999 SCMR 803; (3) Muhammad Yousaf v The State 1994 SCMR 1733 and (4) Shamshad v. The State PLD 1963 SC 740.

53. Incidentally we may mention here that whereas, there was scathing criticism against the investigation conducted by Muhammad Younas Butt, Inspector/S.H.O and there were also displeasures expressed at the end of the accused side against the investigation of Ghulam Muhammad Kalyar, whose role even in our view was not useful. The investigation conducted by the Investigation Team headed by Tassaduq Hussain, S.P., remained safe from any serious attack from both parties.

54. The investigation by the team headed by Tassaduq Hussain, $. P. , had come to the conclusion that the following accused were innocent: (1) Gulzar, (2) Azam, (3) Saleem, (4) Ajmal Pathan, (5) Javed Butt, (6) Allah Ditta, (7) Naeem, and (8) Fiaz, and the team found the rest of them guilty. Even in Exh. P.O. , we find the names of Munawar Hussain (P.O.), Amjad Butt and Rashid Butt very much mentioned since the genesis of the case. We also find that on the basis of the same story, Muhammad Munir was found innocent by the trial Court and there is no appeal against his acquittal. Therefore, whereas, the findings of the team headed by Tassaduq Hussain, S.P., are useful in determining the fate of this case, we have still to use all care at our command while keeping in view what we have gathered after the appraisement of the entire evidence and after hearing all sides and in the interest of the safe administration of criminal justice.

55. We feel that the prosecution hates been able to steadfastly establish its case against Amjad Iqbal Butt and Muhammad Rashid and we, therefore, maintain their order of conviction and sentence which is death as well as under section 449, P.P.C. While we are upholding the order of conviction of appellant Ghulam Hussain, Muhammad Asghar, Ashiq Butt, Ansar, Sadiq and Sabir Hussain under section 302(b), P.P.C. read with section 149, P.P.C., but are reducing their sentence from death to life imprisonment. While all of them shall pay compensation at Rs.2,00,000 (Rupees two lacs) each to the heirs of the deceased family under section 544‑A, Cr.P.C., or in lieu thereof, to suffer further simple imprisonment for six months each. Their conviction and sentence under section 449, P.P.C. too is upheld.

56. All the sentences shall run concurrently and they shall be entitled to the benefit under section 382‑B of Cr.P.C.

57. The case of the prosecutibn as far as the appellants Muhammad Naeem, Muhammad Saleem, Javed Butt, Allah Ditta, Fiaz Ahmad. Gulzar alias Gullah, Azam and Ajmal Khan are concerned, is not established beyond any reasonable doubt and, therefore, they deserve acquittal and we acquit them of the charge. They are already confined in jail and shall be released forthwith if not required in any other case. The Criminal Appeal No.868 of 1999 is decided accordingly.

58. In view of our aforementioned observations, the Criminal Revision No.448 of 1998 asking for further compensation and filed by the complainant side has borne fruit and is disposed of.

59. The Murder Reference No. 108/T of 1999 to they ‑extent of appellants/convicts Amjad Iqbal and Muhammad Rashid is answered in the positive as their death sentence has been upheld, while to the extent of rest of the appellants, it is answered in the negative.

M.B.A./A‑537/L ?????????

Order accordingly.