SHAKIL AHMAD Versus THE STATE

KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No.681 of 2002 filed by Shakil Ahmad, Nadeem Butt and Nasarullah, appellants who were convicted and sentenced by Judge, Special Court, Rawalpindi constituted under Anti Terrorism Act, 1997 vide judgment, dated 27-4-2002 as under:--

Death on five counts with further direction to pay Rs.one lac each as fine under section 7(a) of Anti-Terrorism Act, 1997 for causing the death of Shahzad Ahmad, Iftikhar Ahmad, Atta Ullah, Ghulam Muhammad and Abbass and

Imprisonment for life with direction to pay Rs. one lac on each count, in default R.I. for one year on each count for causing injuries on the persons of Master Aslam, Nadeem Aslant, Azeem Aslam, Qaseem Aslam, Naseer Ahmad and Muhammad Arif under section 7(b) of Anti-Terrorism Act, 1997. The benefit of section 382-B, Cr.P.C. was, however, granted to the appellants.

Murder Reference No.59/T of 2002 for confirmation of death sentence or otherwise shall also be replied through this single judgment.

2. Occurrence in this case had taken place at 5-30 a.m. on 30-10-2000 at Mauza Gutallian which is at a distance of 2 miles from Police Station Qila Kalarwala, District Sialkot while the matter was to the police through written complaint Exh.P.J. at Mauza Gutallian at 6 a.m. the same day by Mushtaq Ahmad and the formal. F.I.R. Exh.P.J./1 was recorded by Qamar Islam, S.-I.

3. Briefly stated the facts of the case are that Mushtaq Ahmad, belonging to Ahmadi sect used to give lesson (Daras) in Baitul Zikar. On 30-10-2000 after offering Fajar prayer he was giving lesson (Daras), while Shahzad Ahmad, Iftikhar Ahmad, Atta Ullah, Ghulam Muhammad, Abbas, Master Aslam, Nadeem Aslam, Azeem Aslam Tasneem Aslam, Qaseem Aslam, Naseer Ahmad, Arif, Muzaffar, Zulfiqar Ali were listening the lesson, (Daras) when at 5-30 a.m. when the light was on, four unknown persons whose descriptions are given in the F.I.R. while armed with kalashnikovs entered into Baitul Zikar. Two of them entered in the room of Baitul Zikar and two who too were armed stood in the courtyard. In the room two out of four resorted to indiscriminate firing which resulted into injuries on the persons of Shahzad, Iftikhar, Attaullah, Ghulam Muhammad, Abbass, Master Aslam, Nadeem Aslam, Azeem Aslam, Qaseem Aslam, Nasser Ahmad and Arif. They all were seriously injured. Due to noise of firing, many people from the locality attracted towards the place of occurrence. All the four accused while firing in the air ran away. Shahzad Ahmad and Iftikhar Ahmad succumbed to the injuries at the spot.

4. Investigation of the case was taken over by Muhammad Muzaffar Malik, Inspector (P.W.28). He after registration, of the formal F.I.R. inspected the spot, took into possession 31 crime-empties of kalashnikovs vide memo. Exh.P.K. 16 led bullets from the spot were also taken into possession vide memo. Exh.P.L., blood from the spot was secured with the help of cotton vide memo. Exh.P.M. and Exh.P.N., Exh.P.O., Exh.P.P., Exh.P.Q. the dead bodies of Shahzad and Iftikhar were taken into possession from the spot, inquest reports and injury statements of both the deceased were also prepared, in Civil Hospital, Narowal. Attaullah and Abbass also expired, their injury statements and inquest reports were also prepared, Ghulam Muhammad died in Mayo Hospital, Lahore, his injury statement and inquest reports were also prepared and then the investigation was conducted by Tahir Majid Khan, Inspector (P.W.25). He recorded the statements of Nadeem Aslam and Muhammad Arif, injured P.Ws. Nasrullah and Iqbal accused were arrested on 19-11-2000. On the search of Iqbal accused, a pistol P.17 alongwith ten live bullets was secured and taken into possession vide memo. Exh.P.S. The car which Nasrullah accused was driving was taken into possession vide memo. Exh.P.N. On the search of Nasrullah accused, a pistol P.15 alongwith six bullets was recovered which was taken into possession vide memo. Exh.P.R. On the same day Shakil accused was arrested. On his disclosure a bag containing kalashnikov, three magazines, five bullets .23 bore pistol, a .22 bore pistol, bullets of kalashnikov, bullets of bore, cylinder of .30 bore, 2 magazines of kalashnikov, two magazines of .30 bore pistol, one bottle of chloroform and (1) .32 bore revolver was also taken into possession. After arrest of the accused they were put to identification parade. Currency notes of India and Afghanistan were also secured from the car which was being driven by Iqbal accused at the time of his arrest. Nadim accused was declared P.O. This P.W.25 also recorded the statements of Master Aslam, Kasim Aslam, Nadim Aslam and Arif who were admitted in Mayo Hospital, Lahore. The investigation was completed and the accused were challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 30 witnesses in all. Then the S.P.P. tendered in evidence reports of the Chemical Examiner Exh.P.LLL/1-5, reports of the Serologist Exh.P.MMM/1-5, report of the Forensic Science Laboratory Exh.P.NNN/1 and closed the case of prosecution. After that, statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded false implication. However, after conclusion of the trial, all the four accused were convicted and sentenced as stated above.

6. Learned counsel for the appellants after having read the entire prosecution evidence submits that the appellants have been falsely implicated in this case; the occurrence had taken place in early hours of the morning when there was dark; none of the appellants was named in the F.I.R.; the identification parade held in this case was bogus one; before the identification parade, the appellants were shown to the P.Ws., two appellants who stood outside the room, did not cause any injury either to any of the deceased or the injured P. Ws. ; it was only Shakil appellant who was present at the spot and he had given reasons for committing the murder of 5 persons and causing injuries to six P.Ws. in reply to Question No.13 in his statement recorded under section 342, Cr.P.C.; the version of Shakil appellant is more plausible and convincing one; even otherwise, Shakil appellant had acted under grave and sudden provocation; Shakil appellant was taken into custody from his house on 7-11-2000 but his arrest was shown as 29th/30th November, 2000, Tahir Majeed, Inspector (P.W.25) had stated that according to his Case Diary No.7, dated 7-11-2000, Shakil, Nasrullah and Iqbal were already in his custody; out of 31 crime-empties of kalashnikov recovered from the spot, 28 empties matched with the kalashnikov recovered on the pointation of Shakeel, appellant, the other three empties matched with the rifle which according to prosecution rifle was taken into possession from the house of Nadeem appellant in his absence., although, according to learned counsel for the appellants it belonged to complainant party and that according to site plan., injuries could not have been caused from points "D" and "E". Further submits that as far as injured P.Ws. are concerned, there were abrasions on their bodies. According to learned counsel, the prosecution has miserably failed to prove its case against the appellants and they are entitled to clean acquittal.

7. Learned counsel for the State submits that it was a case of promptly lodged F.I.R.; ocular account is fully corroborated by medical evidence, Shakil appellant had admitted his guilt before the trial Court; recovery was effected from Shakil appellant not only of a kalashnikov but other fire-arms vide memos. Exhs. P.T., P.U. and P.K. and that there was no reason to falsely implicate the appellants. He supports the judgment of trial Court.

8. We have heard learned counsel for the parties and have gone through the prosecution evidence. Four accused, namely, Shakil Ahmad, Nadim Butt, Nasrullah and Muhammad Iqbal were tried, convicted and sentenced but Muhammad Iqbal appellant has not filed any appeal while the remaining three accused are appellants in this case. Since murder reference has been sent as required by law against all four convicts, so the same shall also be replied qua Muhammad Iqbal, convict.

9. In the instant case, the occurrence, according to case of the prosecution, had taken place at 5-30 a.m. on 30-10-2000 in Baitul Zikar at Mauza Ghotalian Police Station Qila Kalarwala, District Sialkot. The matter was reported to the police at 6 a.m. the same day at Mauza Ghotalian through written complaint Exh.P.J. and formal F.I.R. Exh.P.J./1 was recorded at 6-15 a.m. It is a case in which five persons namely Iftikhar, Shahzad, Attaullah, Abbass and Ghulam Muhammad were murdered while six namely Master Aslam, Qaseem Aslam, Nadeem Aslam, Azeem Aslam, Naseer Ahmad and Arif were injured. Four eye witnesses namely Mushtaq Ahmad, Muzaffar Ahmad, Muhammad Arif and Master Aslam (P.Ws. 8, 9, 10 and 11 respectively) were produced by the prosecution. All the four P.Ws. including two injured P.Ws. namely Arif and Master Aslam have fully supported the prosecution case before the trial Court. Despite lengthy cross-examination, the defence failed to create any dent in the story of prosecution. There was no previous background of enmity between the parties. There was also no question or false implication. Had there been any enmity between the parties, the complainant must have given the names of the appellants in the complain Exh.P.J. It has been proved on record that none of the witnesses had anv enmity whatsoever against any of the appellant. The five injured P.Ws. namely Azeem Aslam, Nadeem Aslam, Master Muhammad Aslam_ Muhammad Arif and Nasir Ahmad were examined by Dr. Muhammad Younis P.W.16 on 30-10-2000 at 6-32 a.m. All the injuries on the persons of the injured P.Ws., according to opinion of the doctor were with fire-arms. The doctor during cross-examination admitted that abrasion on the person of Azeem Aslam, could be result of fire-arm as well as blunt weapon and that dimension of injuries on the persons of Nadeem Aslam, Master Aslam, Arif and Nasir showed that they were result of fires by different weapons. Abbass Ahmad (later died) was also examined at 6-30 a.m. on the 30-10-2000 by Dr. Tariq Mehmood (P.W.17). The injuries on the person of Abbass were with fire-arm and condition of the injured was serious. Qaseem Aslam was examined by Dr. Khalid Mahmood (P.W.18) at 6-32 a.m. on 30-10-2000. A compound fracture of right thigh just above the right knee was found and the bone was exposed. The injury was opined to be caused with fire-arm. Then Dr. Gul Nawaz (P.W.19) had conducted post-mortem examination on the dead bodies of Iftikhar Ahmad, Shahzad Ahmad, Attaullah, Abbass Ahmad and. Ghulam Muhammad. There were 17 injuries on the persons of five deceased which show that there was no exaggeration and number of injuries coincide with the number of accused.

10. Nadeem Butt, appellant remained absconder and was only arrested on 30-6-2001. Shakil appellant was arrested on 19th/20th of November, 2000. He got recovered kalashnikov on 20-11-2000. He also got recovered live bullets of kalashnikov, pistol, magazine of .30 bore pistol, one bottle of chloroform, two bags of white powder and a .32 bore I revolver. When the car which was being driven by Nasrullah appellant and Muhammad Iqbal convict, currency notes of Indian and Afghanistan were recovered. 16 lead bullets were taken into possession from the spot. Muhammad Iqbal, who had not filed appeal and Nasrullah, appellant got recovered pistols on 19-11-2000 alongwith three magazines and when the same were unloaded, 79 live bullets were recovered.

11. For the just decision of this case, we would like to reproduce the reply to Question No. 13 given by Shakil appellant in his statement recorded under section 342, Cr.P.C. The same reads as under:--

"On 30-10-2000 at about 10 a.m. Khatm-e-Nabooat Conference was being convened by International Khatm-e-Nabooat Organization in the area of Chowk Qila Kalarwala adjacent to village Gattalian, District Sialkot, in which renowned religious scholars namely, Maulana Ali Sher Haideri, Maulana Manzoor Ahmad Chinioti, Syed Attaul Munium Bukhari, Maulana Muhammad Nawaz Baloch and others had to address. In village Gattalian there are seven places of worship of Qadianies and majority population of village Gattalian are Qadianies. The Qadianies community of village Gattalian felt open challenge for their religious integrity in the area and by all means and at every cost, Qadianies wanted to sabotage/stop this Conference and in this connection, Qadianies have hatched a conspiracy to physically eliminate all the abovementioned scholars. Night before the eventful day, the organizer of the Conference deputed volunteers to watch the activities of Qadianies in different areas as they were apprehending some mischief from Qadiani community. I was deputed in the village Gattialan. After Fajar prayers, I went to village Gattalian and while I was passing in the street of Gattalian I saw so many pairs of shoes inside Baitul Zikar and heard a person addressing to others gathered there. He was asking them "that holding of Khatim-e-Nabooat Conference in our area is a question for religious Ghairat and we cannot tolerate any such Conference in our vicinity particularly when we are commanding majority in the area of Qila Kalarwala. He was also asking to the persons gathered that Mirza Ghulam Ahmad Qadiani is truthful holy prophet, Nabi, Rasul and also Maseeh Mahud. He was referring a book written by Mirza Ghulam Ahmad Qadiani "Aik Galti Ka Izahala".

Tooba Naooz-o-Billah, he was asking that Muhammad was not last Prophet and we being truthful followers of Mirza Ghulam Ahmad Qadiani cannot allow the above noted religious scholars to insult Mirza Ghulam Ahmad Qadiani in our area. He was giving derogatory remarks in the honour of Hazrat Muhammad (p.b.u.h.) and also defiling the sacred names of Sehaba-e-Karam and Ummahat-ul-Momineen.

He was also asking that in order to sabotage the Khatm-e -Nabooat Conference they have collected a huge quantity of arms and ammunition and stored the weapons in Baitul Zikar. Now it depends upon them whether such Conference should be allowed or not. All the religious scholars of that Conference should be killed. He further asked the audience to do or die.

After hearing those words I lost my control and being truthful Ashiq-e-Rasool entered in that room, where many kalashnikovs and other ammunition was lying, picked up one of them and made indiscriminate firing on the persons present there. They also picked up their weapons and fired on me but I luckily escaped and decamped from the spot."

The complainant had given only the description of four accused. According to case of the prosecution, after, Fajar prayer the complainant was giving "Daras" when at about 5-30 a.m. in the light of bulb, four accused persons whose description was given in the F.I.R., amongst whom, two who were armed with kalashnikovs entered into the room of Baitul Zikar while the other two remained standing outside in the courtyard of Baitul Zikar. The two accused persons who had entered into the room of Baitul Zikar started indiscriminate firing with kalashnikovs which resulted into death of Iftikhar, Shahzad, Attaullah, Abbass and Ghulam Muhammad and six mentioned above were injured. On hearing the fire shots, many people collected at the spot. The accused persons ran away from the spot.

If the story of prosecution and the defence set up by Shakil appellant in reply to Question No. 13 (reproduced above) are put in juxta position, the story of prosecutions seems to be more plausible and convincing one. The version introduced by Shakil appellant is afterthought in order to make a case of grave and sudden provocation and to save the lives of his co-accused. If, as alleged, he was truthful Ashiq -e-Rasool, and admitted to have killed five persons and caused injuries to six belonging to Ahmadia sect, then his first step should have been to surrender himself before the police on the same day and narrate his version which he took in his statement under section 342, Cr.P.C. He kept silent for 7 days even if we take his arrest as alleged by him on 7-11-2000 and it was only after 1-1/2 months of the occurrence that he took the plea, reproduced above. It may be noted here that the occurrence had taken place in Mauza Gatallian which falls within the jurisdiction of Police Station Qila Kalarwala, District Sialkot while all me appellants hail from Daska City. They, had no business to be present at Mauza Gatallian at the relevant time. The presence of three appellants and one convict Muhammad Iqbal shows that they had come while armed with lethal weapons in order to attack upon the persons belonging to Ahmadia sect. Shakil appellant in his statement under section 342, Cr.P.C. pleaded that on 30-10-2000 at about 10 a.m., Khatam-e-Nabooat Conference was being convened by International Khatm-e-Nabooat Organization but did not produce any document on record to show holding of the Conference. He also did not produce any person in his defence from the organizers of the Khatm-e-Nabooat Conference who deputed him to watch the activities of Qadianies of Village Ghuttalian. This appellant also stated in his statement under section 342, Cr.P.C. that persons present in the room of Baitul Zikar also fired at him but not a single scratch was received by him though according to him, he was alone and the persons present in the room were large in number. 28 crime-empties matched with the kalashnikov recovered on the pointation of Shakil, appellant. The crime empties were taken into possession on 30-10-2000 and were sent to the Fire Arms Expert on 3-11-2000 while the fire-arms recovered on the pointation of the accused or from the accused or from the house of Nadeem accused were sent on 8-12-2000 and 4-1-2001, so there was no question of fabrication of report of the Fire Arms Expert. In these circumstances, we can safely hold that the version of Shukil appellant, does not appeal to reasons.

Nadeem appellant became a P.O. and was arrested 8 months after the occurrence. All the accused were identified during the identification parade. It is correct that according to prosecution witnesses it was Shakil and Iqbal, convicts and not appellant who entered into the room of Baitul Zikar and fired at the deceased and injured while two namely Nasrullah and Nadeem remained standing in the courtyard having fire-arms with them in order to protect their co-accused so that they could complete their task and this is a case where the principle of vicarious liability and common intention is fully applicable. All the four accused had come from Daska to complete this inhuman task which resulted into death of five persons and injuring six persons. No leniency can even be shown as far as conviction and sentence of Nadeem and Nasrullah appellants is concerned. Their case is on equal footing to that of their co accused namely Shakil and Iqbal.

After having critically analyzed the entire case from all angles and attending to the submissions made by learned counsel for the appellants, we are of the considered opinion that the prosecution has been successful in proving its case beyond any shadow of doubt against the three appellants and Iqbal, their co-accused who has not filed the appeal. Resultantly, conviction and sentence recorded against all the four convicts namely Shakil, Nadeem Nasarullah and Muhammad Iqbal by the trial Court is maintained in toto. It may be noted that the trial Court was wrong in convicting the convicts under section 7(b) of Anti-Terrorism Act, 1997 and awarding them the sentence of imprisonment for life. In fact, the life imprisonment can be awarded under section 7(c) of the Act so we while converting conviction of the convicts from section 7(b) to section 7(c) of the Anti-Terrorism Act, 1997, we maintain the sentence awarded by the trial Court, that is, imprisonment for life. The appeal filed by Shakil, Nadeem and Nasrullah convict-appellants is dismissed. The death sentence of all the three appellants and Iqbal convict is' confirmed. Murder Reference is replied in the affirmative.

H.B.T./S-702/L Appeal dismissed