P L D 1978 Lahore 523 (PLP)

803 D. O. No. 7-4-74 Chief Endorsed a What was 178-CM Minister, report Tribunal ' the point (PM)-75 Punjab set up to enquire into of discus- (2654) the incident sing it which took place with you? on the night " Please between 10th & discuss. 11th November (Sd.) P.M 1974 at Shah 18-3. Jamal Round- Mr. Saeed about, Lahore Ahmad leading to the Khan 1 2 3 4 5 6 7 8 death of Nawab- C. S. O. zada Muhammad P.M. Ahmad Khan 1 folder of 3 pages with a report. The witness while proving the document made a reference to all the above columns and their entries and stated with reference to the remarks of the principal accused in the last column that it was marked to Saeed Ahmad Khan C. S. O., PM, P. W.

3. He also explained that the last column mentioned. number of pages of the letter despatched. He explained that this was done in order to obviate the possibility of the recipient denying the receipt of the article despatched. He further stated that what was mentioned in the last column was duly despatched.

272. This document has been proved to corroborate the testimony of Saeed Ahmad Khan that it was in view of this order of the Prime Minister (as given in the last column of Exh. P. W. 27/2 referred to above) that he had a meeting with the principal accused and that the latter told him in that meeting that the report should not be published as it was adverse. This entry was proved since the original document bearing this note could not be traced. The witness further explained reference to No. 803/75 in entry Exh. P. W. 3/4-A in Peon Book Exh. P.' W. 3/4. He stated that the number indicates the serial number of the letter in the despatch register of the Prime Minister's Secretariat. He stated that Peon Book was taken into possession vide Memo. Exh. P. W. 26/1.

273. The witness also proved challan sheet Exh. P. W. 27/1. He stated that this challan sheet was prepared in duplicate in the Prime Minister's Secretariat and contained a list of documents received from the Secretary to the Prime Minister and marked to the latter. Serial No. 9 of this document is the entry about sending Letter No. 788/28/CSO(PM) dated the 24th November, 1974 (Exh. P. W. 3/2-B) on which appears the endorsement Exh. P. W. 3/2-B/1 to the following effect: "I agree with you. (Sd.) P. M."

274. The witness stated that this letter never came back to him though he tried to trace it out in the entries of diaries of the despatch register.

275. This evidence was produced since the document in question could not be traced. The challan sheet Exh. P. W. 27/1 was proved to establish that the letter Exh. P. W. 3/2-B must have reached the Prime Minister and seen by him.

276. Muhammad Younis Qazi, P. W. 26 also made a similar statement in regard to the entry Exh. P. W. 3/4-A in the Peon Book Exh. P. W. 3/4. He identified the signature of Abdul Hamid Bajwa on this entry. He state that he searched the letter from the diary and the despatch register but he could not find it.

277. P. W. 29, Khizar Hayat proved the recovery by the F. I. A. of the files Exhs. P. W. 3/1, P. W. 3/2 and P. W. 3/3. He stated that he handed over these files to the Deputy Director, Agha Habib, for sending the same to F. I. A., Lahore.

278. Haroon Ahmad P. W. 30, Section Officer in the Establishment Division, Rawalpindi, proved the T. A. Bills of Abdul Hamid Bajwa Exhs. P. W. 3/5 to Exh. P. W. 3/10 which were taken into possession vile recovery Memo Exh. P. W. 30/1. He stated that these bills were passed and their payments made. Two witnesses, P. W. 9 and P. W. 10 have been .produced to prove pardon to accomplices, their statements, and the confessions of four accused. Statements of P. W. 38 and P. W. 40 also throw light on this matter. Iqbal Nadeem, P. W. 9 made a statement only about grant of pardon to the two approvers P. W. 2 and P. W.

31. After grant of pardon he sent each approver to Mr. Zulfiqar Ali Toor P. W. 10 for the recording of his statement under section 164, Cr. P. C. as a witness.

280. Mr. Zulfiqar Ali Toor, Magistrate Ist Class, Lahore P. W. 10 stated that he recorded the confessional statements of Iftikhar Ahmad, Arshad Iqbal and Ghulam Mustafa Exh. P. W. 10,12-1, P. W. 10`3-1 and F. W. 10/6-1 respectively. Each of the accused was sent to the judicial lockup soon after the statement. He also recorded the statements of Masood Mahmud P. W. 2 (P. W. 2/6) and Ghulam Hussain P. W. 31 (P. W. 10/11-1). The statements according to him were voluntary and. he had taken all precautions to ensure that they were voluntarily made.

281. This witness recorded the statement of Mian Muhammad Abbas accused on the 18th of August, 1977. On application Exh. P. W. 10/8 submitted by Ahmad Saeed Khan, Assistant Director, F.

1. A. P. VNI. 38 the Magistrate passed order Exh. P. W. 10/8-1 on it. He stated that he, observed all the formalities enumerated in the form Exh. P. W. 10/9 prescribed under section 164 Cr. P. C. He gave time to Mian Muhammad Abbas, accused to think over and informed him that he was not obliged to make a confessional statement. He also warned him that in case he made a confessional statement, it might be used against him.

282. He stated that after he was satisfied that the accused was making a voluntary statement, he proceeded to record his statement Exh. P. W. 10/9-1. The statement was read out to him and he admitted it to be correct and put down his signature on it. The Witness then filed in and signed the certificate Exh. P. W. 10/9-2. The witness stated . in cross-examination that he had not asked any confessing accused whether any pressure or threat or inducement was given to them because he was of the view that there was an implied reference to these matters in the first question on the prescribed form. He also did not ask any question whether the confessing accused had been promised pardon in case they made a confession nor did he ask them where they were kept. Although he had not given any note in Exh. P. W. 10/9 about sending the Police Officers out of the Court room, he stated that they were so sent. The time. given to Mian Muhammad Abbas accused to think over the matter before the statement was recorded, is not given in the note. The. witness, however, stated that it was 30 minutes. He further stated that the custody of Mian Muhammad Abbas was given back to Ahmad Saeed, Assistant Director P. W. 38 for being taken to the judicial lock-up vide order Exh. P. W. 10/14.

283. Ahmad Saeed P. W. 38, Assistant Director, F. I. A. who had produced Mian Muhammad Abbas before P. W. 10 stated that Mian Muhammad Abbas was sent to Camp 'Jail from the Court through Muhammad Aslam Sahi (P. W. 40) under order of the Magistrate. The witness also stated that he brought a report Exh. P. W. 38/1 from Central Ammunition Depot, Havelian along with two vouchers Exhs. P. W. 38/2 and P. W. 38/3. It may be stated that letter Exh. 38/1 signed by Colonel Commandant of the Central Ammunition Depot, Havelian confirms that quantity 75000 and 60000 of 7.62 m m. ball ammunition were issued by the Depot to Director-General, F. S. F. vide Voucher No. A. M. M. O./P-29 dated 7-2-1974 (Exh. P. W. 38/2) and A. M. M. O./P.-52 dated 25th May, 1974 (Exh. P. W. 38/3). Same two vouchers had been proved by Fazal Ahmad P. W. 24 as Exhs. P. W. 24/3 and P. W. 24,/5 respectively.

284. Muhammad Aslam Sahi, Inspector, F. I. A. P. W. 40 stated that on 18-8-1977 Ahmad Saeed P. W. 38 handed over the accused Mian Muhammad Abbas to him and he took him to the Camp Jail, the same day. This witness had partly investigated the case and questioned Arshad Iqbal accused on 24-7-1977. The said accused was arrested formally by the Deputy Director, F. I. A. on 25-7-1977. He also produced Rana Iftikhar Ahmad and Arshad Iqbal accused on 26-7-1977 in the Court of P. W. 10.

285. He stated that he went to the Inspectorate of Armaments G. H. Q., Rawalpindi where Major Sarfraz Naeem, P. W. 33 gave him a letter Exh. P. W. 33/1 addressed to the Deputy Director, F. I. A. Reference to his statement about delivery to him of . parcels containing empties etc. has already been made.

286. In cross-examination by the learned counsel for Mian Muhammad Abbas he stated that he had not interrogated Mian Muhammad Abbas. He stated that he had taken Mian Muhammad Abbas from the Court of P. W. 10 to Naz-Nageena Cinemas since Mian Muhammad Abbas accused had to get some clothes from there from his relatives. He took these clothes from the relatives, took his me4ls and offered his prayer and. thereafter he was taken straight from the Cinema to the Camp Jail. He denied having taken to him to the Police Station F. I. A.

287. Muhammad Boota P. W. 39, Investigating Officer interrogated Ghulam Hussain, approver as well as Ghulam Mustafa and got their statements recorded by a Magistrate. He submitted application Exh. P. W. 39/ t dated 11-8-1977 before P. W. 10 for remand of Ghulam Hussain to judicial custody. He stated that he visited Central Ammunition Depot, Ha velian and secured from there, report Exh. P. W. 39/2 dated 38-8-1977 addressed to the Deputy Director F. I. A. He formally proved the documents. It may be noticed that Exh. P. W. 39/2 is confirmation of the fact that by issue voucher No. A. M. M. 0./1451 dated 9th of June, 1973, ammunition of 7.62 mm. ball for S. M. G./L. M. G. numbering 1274760 rounds was issued to Director-General, Federal Security Force. It also proves that lot Nos. 71-661 were sent, but no lot of ammunition in question bore marking B. B. 1-71. According to the letter the marking presumably is 661/71. It further clarifies that out of the digits 71-661 stamped on the base of each case, 71 indicates the year of manufacture while 661 indicates the factory code.

288. The witness further said that he also took into possession Jeep L. E. J.-7084'by recovery Memo. Exh. P. W. 39/3 and gave it on Sapurdari to Muhammad Yaqoob, Inspector vide Superdarinama Exh. P. W. 39/4 dated 31-8-1977. In cross-examination he proved the statement of Ahmad Raza Kasuri, P. W. 1 (Exh. P. W. 39/5-D), Muhammad Amir P. W. 19 (Exh. P. W. 39/6-D), Abdul Ikram P. W. 18 (Exh. P. W. 39,1 7-D), Ahmad Nawaz Qureshi, P. W. 5 (Exh. P. W. 39/8-D), Fazal Ali P. W. 24 (Exh. P. W. 39/9-D) under section 161, Cr. P. C. He stated that he had taken 25 S. M. G. from the Headquarter of the F. S. F., Rawalpindi.

289. Abdul Khaliq P. W. 4, Investigating Officer is the Deputy Director, F.

1. A. who had mainly investigated the case. His statement about how he found a clue of this offence and arrested all the accused, has already been reproduced.

290. In cross-examination he proved the statements of Saeed Ahmad P, W. 3 (Exh. P: W. 41; 3-D), Marvyn Rupert Welch P. W. 4 (Exh. P. W. 4/41-D, Muhammad Asgbar Khan P. W. 12 (Exh. P. W. 41/ 5-D), Sardar Abdul Vakil P. W. 14 (Exh. P. W. 41/6-D) and Malik Muhammad Waris P. W. 15 (Exh. P. W. 41 /7-D).

291. Before the start of trial the principal accused had challenged the constitution of the Court on the ground inter alia that by his appointment as Chief Election Commissioner the Acting Chief Justice had ceased to hold the later office. He had also raised some allegations of bias against the Acting Chief Justice. The Supreme Court directed him to raise all these before this Court. In view of this direction the principal accused submitted two petitions Criminal Misc. No. 932/M and 933/M of 1977; one challenging the constitution of the High Court and the other showing apprehension that he would not get a fair trial in view of the allegations of bias against the Acting Chief Justice (as his Lordship the Chief Justice then was). These petitions were dismissed in limine by this Bench on 9-10-1977. Besides strongly refuting the allegations of bias it was pointed out in the order that the matter was being heard not by the Acting Chief Justice alone but by a large Bench of five Judges each of whom had to act independently and was under oath to act justly without fear or favour. The accused submitted two petitions for Special Leave to Appeal against the order before the Supreme Court. He, however, withdrew the petition filed by him to challenge the order passed on the petition raising question of bias against the Chief Justice. Thereafter he submitted several incompetent petitions and informations repeating the same allegations, despite the fact that the matter had attained finality. In some petitions there was a prayer for transfer of the case to some other Bench or to the Sessions Court. All these petitions were dismissed. It was repeated that the apprehension of the principal accused was altogether unreasonable. '

292. In his last petition for transfer which was submitted on 18-1-1978 the accused repeated all the earlier allegations of bias and supplemented them with a number of scandalous, scurrilous and baseless allegations. He also took such objections to the Court's rulings or procedure adopted by it, which can be taken only before a Court of Appeal. Since the practice of this Court is to bear motion cases in Chambers and the Bench trying the case was of the view that the petition was submitted only to scandalize the Court and to give publicity to these baseless allegations with a view to shake public confidence in the Court, it was considered proper to hear this transfer case in motion in Chambers. The accused was called to the Chambers alone to argue the matter since he had submitted the petition in person and not through counsel. On entering the Chamber the principal accused showed surprise that the matter was not being heard in Court and requested that it should be heard there. This made it obvious that he was more interested in publicising his baseless and scandalous allegations in the petition and his arguments on it. He was informed that motion cases are generally heard by the Court in Chambers The principal accused then submitted that his counsel would argue the case. He named Mr. D. M. Awan and Mr. Ehsan Qadir as his counsel. Both the counsel were, therefore, called.

293. Mr. D. M. Awan addressed arguments on the question of maintainability of the petition. He did not argue the points which had already been decided. He also did not address on matters on which rulings had been given after giving full hearing and which could only be urged in appeal. The other new points were sheer calumnies which he made no effort to justify. During the course of hearing the principal accused tried to interrupt and interfere in the proceedings, but he was informed that he would be given an opportunity to supplement the arguments of his counsel on merits. After finishing his arguments Mr. D. M. Awan requested to be allowed to withdraw from the case. This request was not granted since there appeared to be no ground for allowing him to withdraw from the prosecution of the defence. He then prayed that the accused might also be given a chance to make some submissions on merits. The accused was allowed to argue on merits although he had no right to address the Court in person when he was represented and his counsel had already been given full hearing. Instead of making any contribution towards the merits of his petition he started a political speech which was absolutely irrelevant. He was warned several times and asked to be relevant in his submissions but be finished his submissions by saying that if he was not allowed to say what he wanted to say hr would not address the Court any further. The petition for transfer was then dismissed.

294. When the Bench assembled in the Court room for recording the evidence of Ghulam Hussain, approver (P. W. 31) who had already been cross-examined at length by Mr. Ehsan Qadir on behalf of the principal accused, the learned counsel stated that he had no more question to ask since his client had instructed him to do so.

295. Later Mr. D. M. Awan stated `at the Bar that his client had withdrawn the powers of attorney of all his counsel. He also placed on record a writing by the principal accused that he did not want to defend in view of what had happened that day. The reference was obviously to the hearing of his petition for transfer in Chamber, its dismissal and the fact that the said accused had to be ordered to take a seat since the Court was not inclined to hear irrelevant arguments or a political speech in a trial which is to be conducted under the provisions of the Evidence Act.

296. Mr. Ehsan Qadir and Mr. D. M. Awan were directed to conduct the defence at State expenses. Mr. Ehsan Qadir appeared before the Bench after the Court rose for the day and requested to'be relieved since he had other professional business to attend to at Sargodha where he usually practises. Next day Mr. D. M. Awan also requested to be relieved on the ground that the above-mentioned accused refused to give him any instructions.

297. The High Court Rules make provisions for arranging a counsel in a Sessions Court for ar unrepresented person accused of an offence punishable with capital sentence in case he is indigent. Where the case is tried by the High Court on its original side Rule 2, Chapter 4-E of Volume V the High Court Rules and Orders vests the Court with a discretion to arrange representation even for the defence of an accused who is not a pauper and can afford to engage a counsel. It was in exercise of this discretion in favour of the accused that the Court had asked the counsel who had defended him so long, to continue defending him at State expense. Since the accused appeared bent upon thwarting this attempt to arrange for his defence at State expense and refused to co-operate with the counsel the Court relieved Mr. D. M. Awan and directed the accused to conduct the case himself.

298. This was the only course open to the Court since it has not authority under the above Rule to force upon the accused the services of a counsel if he is unwilling to accept them. As observed by a Division Bench B of the Lahore High Court in Iftikhar-ad-Din v. State (P L D 1954 Lah. 547) if the accused contumaciously refuses to accept the offer of legal advice made to him and in not willing to accept the representation arranged by the Court he must be left to conduct his case himself.

299. The accused refused to cross-examine other witnesses who were formal. Mr. Qurban Sadiq Ikram, learned counsel for Mian Muhammad Abbas, accused, however, cross-examined them in detail on all relevant points. He brought on record and proved through the prosecution witness most of these statements under sections 161 and 164, Cr. P. C. made by witnesses for the prosecution with which the counsel for the principal accused had tried to confront them. This was done presumably because the defence of the two accused appears to be identical.

300. When the first question was put to the said accused in his examination under section 342, Cr. P. C. he stated that since he was boycotting the proceedings he would not be offering any defence. He would, however, make a statement only about the reasons why the present case was fabricated against him and why he apprehended that he would not get fair trial and justice in this Court.

301. A reference to the last point was entirely uncalled for since the accused had already submitted a number of petitions making false, baseless and scandalous allegations against the Court which had been disposed of. These allegations were not at all relevant to the statement under section 342, Cr. P. C. Yet if the accused considered it necessary to harp on the same tune it must be only with the intention that his calumnious and slanderous statement may receive publicity in open Court as well as in press. This was the object with which he wanted the last petition for transfer to be heard in Court. Now no Court much less a superior Court can allow litigant to challenge, before it its fairness, integrity and impartiality, or to scandalise it, and to g on repeating with impunity, scandalous and libellous attacks on Judges which are calculated to lower the authority of the Judges and to malign them. C if this is allowed it would shake the public confidence in the administration of justice. In exercise of the discretion vested in the Courts by the previous to section 352, Cr. P. C. the proceedings were therefore directed to be held in camera.

302. Next day when the Court assembled the principal accused showed surprise that the press and the public had been excluded from the Court. He emphasised that it should be an open trial. His attention was drawn to section 352 of the Criminal Procedure Code which confers a discretion upon the Court to order at any stage of any particular case if it thinks fit that the public generally or any particular person shall not have access to or be or remain in the room or building used by it. The accused stated that he would consult his lawyers on the question whether the proceedings can be held in camera. It was pointed out to him that he had already given up his lawyers. The next question under section ?42, Cr. P. C. (Question No. 54) was then put to him, instead of answering the question he dictated a statement covering more than 9 pages in which he amongst other things attacked the Courts' impartiality and the legality of the order holding the trial in camera.

303. At the end of this irrelevant address the Chief Justice advised him to answer the questions since it was in his own interest to do so and assured him that in case he agreed to make a statement all questions would be put to him again. He requested for time to consult Mr. Yahya Bakhtiar and MY. D. M. Awan. The case was, therefore, adjourned to the 28th of January, 1978 to enable the accused to seek legal advice.

304. The accused met his counsel Mr. Yahya Bakhtiar for 3:j hours on 25th January, 1978. He again met his counsel in Jail on the next two day's. However, he submitted an application for copy of the order for holding the proceedings to camera and copies of his statements recorded on 24th and 25th of January, 1978. The copies of the order as well as his statement made on 24th January, 1978 were supplied to him 'on the 28th January, 1978. The copy of the statement made on 25th January, 1978 could not, however, be supplied to him since it contained scandalous and scurrilous remarks against the Court. On 28th January, 1978 the accused again requested for further time to consult his counsel on the question whether the proceedings could be held in camera. It was pointed out to him that he was given an opportunity to see his counsel only on the question whether he would like to make statement under section 342, Cr. P. C. The Court, however, agreed to give him five minutes for this purpose.

306. The Court re-assembled after about half an hour. The accused stated that his counsel had by then hardly read a few questions out of the statement made on the 24th January, 1978, and the time given to him was insufficient for advice. The Court did not agree to any further adjournment since the reading of his earlier statement under section 342, Cr. P. C. was not material for tendering advice on the question whether he should answer questions particularly when my Lord the Chief Justice had assured him that all the .questions will be put to him again in case he agreed to answer them. When the next question was put to the witness he again dictated a statement almost repeating what he had already stated on the 25th January, 1978. This statement covers more than eleven pages. Thereafter he did not answer any question put to him.

307. After his statement was recorded, the said accused was asked to sign it, but he refused to do so. He was asked to read the statement. On his inquiry whether he could correct the typographical or grammatical errors, he was told to make any correction for so long as the substance of the statement was not changed. 'He wrote certain uncalled for and incorrect remarks that the statement might not have been complete.

308. Thereafter the accused sent an application through the Superintendent Jail, in which he alleged that his statement was not correctly and completely recorded. This application was dismissed since the statement had been typed on the dictation of the accused himself, and the allegations levelled in the petition were absolutely false.

309. On the 25th of January, 1978, a few supporters of the principal accused demonstrated against the holding of the Court in camera and created disturbance outside the Chambers of my lord the Chief Justice. In view of the possibility of such disturbances occurring in future, it was ordered that the proceedings of the trial shall continue in camera.

310. On 7-2-1978 after the defence evidence had been recorded, the accused was asked whether he would, like to cross-examine D. W. 4 who had been produced on behalf of the three confessing accused. The accused stated that lie would not cross-examine him but make a statement on his statement. He was allowed to do so although be had no right to make such statement after the close of his statement under section 342, Cr. P. C. He dictated more than eleven pages to the typist and repeated all that had been said by him on the 25th and 28th of January, 1978 and also attacking the order to continue all further proceedings in camera. Thereafter he refused to even read or sign the statement.

311. The statement of the principal accused under section 342, Cr. P. C. was recorded on three dates i. e. 24-1-1978, 25-1-1978 and 28-1-1978. The accused did not answer the first question whether Ahmad Raza Kasuri, P. W. 1 was a founder member of the Pakistan People's Party and was elected to the National Assembly in the Elections of 1970 on the ticket of that party. He stated that he would not be offering any defence since he was boycotting the, proceedings of the trial and had already withdrawn the wakalatnamas of his counsel after his applications dated the 18th December, 1977 (for transfer of the case) and 22nd December, 1977 (requesting for hearing of the application dated the 18th December, 1978) were dismissed by this Bench in Chambers. He further stated that he would confine his statement mainly to two issues i. e. the reason for his lack of confidence in the fairness of the trial and the reason why this case had been fabricated against him. He answered the question whether Ahmad Raza Kasuri had advocated on the floor of the House that 94000 P. O.-Ws. were locked up because of his (accused's) connivance with the Indian Government. He stated that it was preposterous for any Pakistani to think that he would connive with India, a country against which he had mobilised the people of Pakistan to wage a thousand years' war. Similarly when he was asked about what had happened on the 3rd June, 1974, on the floor of the National Assembly, the accused stated that by his assertion about the unanimous approval of the Constitution by a democratically elected Parliament he did not mean that all the members must have voted for it. It only meant that all the parties and their leaders had not only approved it but had also signed it. It was in this sense that the 1973 Constitution was a unanimous and a democratic Constitution. He cited examples of some Prime Ministers of England losing temper and said that even Abdul Wali Khan had shouted in the Parliament at Abdul Hafeez Pirzada that he would wring his neck and would shoot the Prime Minister or the President, but the Speaker expunged the words `I will shoot you' from the Assembly proceedings. He denied that he did not appreciate criticism and stated that he would not have risen to political heights if he had not been tolerant. He added that be had heard disagreements in the Central Committee of his Cabinets which sometimes went on non-stop for 24 hours. Regarding the statement of Saeed Ahmad Khan P. W. 3 that he was paid from the secret fund or that a device was found out to pay him from the funds of the All Pakistan Research Organization in his capacity as their Legal and Administrative Consultant, the accused replied that the said Organization was basically an Intelligence Agency.

312. He further stated that he did not take political advice from bureaucrats and that the dismissed Officers were being re-instated even by the present Government. He stated that he did not know Abdul Hamid Bajwa nor needed the services of any unknown individual to guide him on Punjab affairs. He did not deny that he did call Officers over the heads of officers superior to them. He stated that a Prime . Minister or a President has every right to call any Officer in the Establishment of the Government or in the Administration of the Government.

313. In regard to the preparation of Exhs. P. W. 3/1, P. W. 3/2 and P. W. 3/3 he stated that so far as he remembered the D. I. B. and the D. G. I. S. I. special branches of the Provincial Government and the District Magistrates kept copious files of prominent individuals during the British rule, and "this practice has continued from those days to our times".

314. Regarding Mian Muhammad Abbas also he stated that he did not know him till 1976 and never spoke to him either directly or on' telephone. He came to know him only in the late 1976 when Masood Mahmud (P. W. 2) told him that a very competent officer of his had suffered heart attack and was hospitalised and as such the burden of his own work had increased.

315. He stated that the objectives of the Federal Security Force, as brought on record, were completely fase and concocted. His impression was that this Force was established in almost all Federations in the world.

316. He denied that Masood Mahmud P. W. 2 used to be present in the Assembly when he attended the Session because he did not need "such Rustam-i-Zaman" for his defence. He stated in answer to Question No. 34, that be bad seen the other accused and approver Ghulam Hussain for the first time during the trial. To the question whether after Masood Mahmud (P. W. 2) refused to comply with his orders regarding the murder of Ahmad Raza Kasuri (P. W. 1), attempts were made on his life and threats were held out and attempts were made to kidnap his children, the accused stated that the contradiction was self-evident. 317: As already stated the accused did not answer any question on the 25th and 28th January but proceeded to make either irrelevant or scandalous statements.

318. Mian Muhammad Abbas accused had already retracted his confession before the opening of the trial. He stated that his statement under section 164, Cr. P. C. was obtained under duress as well as promises. He denied the charge in every respect. He stated that he did not have good relations with Masood Mahmud P. W.2. In fact Masood Mahmud did not have good relations even with his predecessor since the latter had been given an ad hoc promotion to the rank of D. I.-G. of Police whereas Matood Mahmud was ignored.

319. He stated that he himself was recommended by Malik Haq Nawaz Tiwana. In fact Masood Mahmud cherished ill-will against him since 1961 for the reason that he wanted him to involve-Mr. Moghis A. Sheikh of the Colony Textile Mills, in a false case under the Foodstuffs Control Order but he refused to be a party to it. Masood Mahmud P. W. 2 later had a talk with the then Deputy Commissioner, Malik Karam Dad, who got the matter checked up from his own sources and upheld the view-point of the accused. He said that another reason for this ill-will was that Nawab Iftikhar Hwisain, one of the leading landlords of Multan was accused of the offence of murder. The Police was after him. P. W. 2 who had a soft corner for him and wanted to help him, but he (the accused) repulsed his attempt. The third reason was that some Ulemas led a deputation to the Nawab of Kalabagh, Governor of the Punjab and represented that they had not been given proper protection by P. W. 2 (as D. I: G.) whom they had met. The Governor of the Punjab (it should be West Pakistan) asked the accused regarding the truthfulness or otherwise of the allegation made. The matter was fully verified and was known to the gentry of Multan. He referred to the callous attitude of P. W. 2 and stated that the papers relating to the complaint lodged by Azmat Ullah Khan, Deputy Commissioner, Multan, might be brought on the file.

320. The accused admitted the writing of Exh. P. W. 2/2 and receipt of reply Exh. P. W. 2/3 from Mervyn Rupert Welch P. W. 4 but stated that this correspondence was exchanged in routine. He denied having assigned to Ghulam Hussain the task of organization of and running of a Commando Course on the ground that during the time of P. W. 2, even a constable could not be transferred without his oral orders. Regarding the supply of arms, he stated that it was under the charge of the Deputy Director (Equipment and Stores). Accordingly if any arms and ammunition were issued, they must have been issued under the orders of the Deputy Director Incharge or the Deputy Director-General.

321. He denied having sent for Ghulam Hussain and having asked him about Ahmad Raza Kasuri or having placed a jeep at his disposal on having supplied to him the addresses of Ahmad Raza Kasuri. He said that he was sick during those days and 'had himself examined by a heart specialist. He stated that he. submitted his resignation Exh. P. W. 2/ 13-D and then another resignation Exhs. P. W. 2/12-D but they were returned to him because Masood Mahmud P. W. 2 did not agree to his quitting the Department and Saeed Ahmad Khan P. W. 3 also tried to persuade him to continue service.

322. Regarding the transport he stated that it was in the charge of the Deputy Director (E. & S.). He stated that Inspector Ghulam Hussain had direct contact with Masood Mahmud P. W. 2 who had not only rewarded him but also promoted him as Inspector. He denied having given any threat to Fazal Ali or detailed another team to do away with Ghulam Hussain if he failed to perform the task and then itself to proceed to perform the task. He denied having talked with Masood Mahmud about this mission or being reminded by him. Regarding Amir Badshah he stated that he had ill-will against him, because he gave adverse views against him in an inquiry. He denied that Amir Badshah ever telephoned to him. He denied any knowledge of the calibre and nature of the weapons with F. S. F. Regarding issue of arms, he stated that they were entered in the daily diary including the diary taken over in possession by the F.

1. A. He denied that Ghulam Hussain Inspector met him at 3-00 p. m. on the 12th November. 1974, at Rawalpindi since he was at Peshawar at that time and had left for Rawalpindi by P. I. A. at 5-15 p. m. Regarding Inspector Fazal Ali he stated that he had made statement Central Committee of his Cabinets which sometimes went on non-stop for 24 hours. Regarding the statement of Saeed Ahmad Khan P. W. 3 that he was paid from the secret fund or that a device was found out to pay him from the funds of the All Pakistan Research Organization in his capacity as their Legal and Administrative Consultant, the accused replied that the said Organization was basically an Intelligence Agency.

312. He further stated that he did not take political advice from bureaucrats and that the dismissed officers were being re-instated even by the present Government. He stated that he did not know Abdul Hamid Bajwa nor needed the services of any unknown individual to guide him on Punjab affairs. He did not deny that he did call Officers over the heads of officers superior to them. He stated that a Prime . Minister or a President has every right to call any Officer in the Establishment of the Government or in the Administration of the Government.

313. In regard to the preparation of Exhs. P. W. 3/1, P. W. 3/2 and P. W. 3/3 he stated that so far as he remembered the D. I. B. and the D. G. I. S. I. special branches of the Provincial Government and the District Magistrates kept copious files of prominent individuals during the British rule, and "this practice has continued from those days to our times".

314. Regarding Mian Muhammad Abbas also he stated that he did not know him till 1976 and never spoke to him either directly or on 'telephone. He came to know him only in the late 1976 when Masood Mahmud (P. W. 2) told him that a very competent officer of his had suffered heart attack and was hospitalised and as such the burden of his own work had increased.

315. He stated that the objectives of the Federal Security Force, as brought on record, were completely fase and concocted. His impression was that this Force was established in almost all Federations in the world.

316. He denied that Masood Mahmud P. W. 2 used to be present in the Assembly when he attended the Session because he did not need "such Rustam-i-Zaman" for his defence. He stated in answer to Question No. 34, that be bad seen the other accused and approver Ghulam Hussain for the first time during the trial. To the question whether after Masood Mahmud (P. W. 2) refused to comply with his orders regarding the murder of Ahmad Raza Kasuri (P. W. 1), attempts were made on his life and threats were held out and attempts were made to kidnap his children, the accused stated that the contradiction was self-evident. 317: As already stated the accused did not answer any question on the 25th and 28th January but proceeded to make either irrelevant or scandalous statements.

318. Mian Muhammad Abbas accused had already retracted his confession before the opening of the trial. He stated that his statement under section 164, Cr. P. C. was obtained under duress as well as promises. He denied the charge in every respect. He stated that he did not have good relations with Masood Mahmud P. W.2. In fact Masood Mahmud did not have good relations even with his predecessor since the latter had been given an ad hoc promotion to the rank of D. I.-G. of Police whereas Matood Mahmud was ignored.

319. He stated that he himself was recommended by Malik Haq Nawaz Tiwana. In fact Masood Mahmud cherished ill-will against him since 1961 for the reason that he wanted him to involve-Mr. Moghis A. Sheikh of the Colony Textile Mills, in a false case under the Foodstuffs Control Order but he refused to be a party to it. Masood Mahmud P. W. 2 later had a talk with the then Deputy Commissioner, Malik Karam Dad, who got the matter checked up from his own sources and upheld the view-point of the accused. He said that another reason for this ill-will was that Nawab Iftikhar Hwisain, one of the leading landlords of Multan was accused of the offence of murder. The Police was after him. P. W. 2 who had a soft corner for him and wanted to help him, but he (the accused) repulsed his attempt. The third reason was that some Ulemas led a deputation to the Nawab of Kalabagh, Governor of the Punjab and represented that they had not been given proper protection by P. W. 2 (as D. I: G.) whom they had met. The Governor of the Punjab (it should be West Pakistan) asked the accused regarding the truthfulness or otherwise of the allegation made. The matter was fully verified and was known to the gentry of Multan. He referred to the callous attitude of P. W. 2 and stated that the papers relating to the complaint lodged by Azmat Ullah Khan, Deputy Commissioner, Multan, might be brought on the file.

320. The accused admitted the writing of Exh. P. W. 2/2 and receipt of reply Exh. P. W. 2/3 from Mervyn Rupert Welch P. W. 4 but stated that this correspondence was exchanged in routine. He denied having assigned to Ghulam Hussain the task of organization of and running of a Commando Course on the ground that during the time of P. W. 2, even a constable could not be transferred without his oral orders. Regarding the supply of arms, he stated that it was under the charge of the Deputy Director (Equipment and Stores). Accordingly if any arms and ammunition were issued, they must have been issued under the orders of the Deputy Director Incharge or the Deputy Director-General.

321. He denied having sent for Ghulam Hussain and having asked him about Ahmad Raza Kasuri or having placed a jeep at his disposal on having supplied to him the addresses of Ahmad Raza Kasuri. He said that he was sick during those days and 'had himself examined by a heart specialist. He stated that he. submitted his resignation Exh. P. W. 2/ 13-D and then another resignation Exhs. P. W. 2/12-D but they were returned to him because Masood Mahmud P. W. 2 did not agree to his quitting the Department and Saeed Ahmad Khan P. W. 3 also tried to persuade him to continue service.

322. Regarding the transport he stated that it was in the charge of the Deputy Director (E. & S.). He stated that Inspector Ghulam Hussain had direct contact with Masood Mahmud P. W. 2 who had not only rewarded him but also promoted him as Inspector. He denied having given any threat to Fazal Ali or detailed another team to do away with Ghulam Hussain if he failed to perform the task and then itself to proceed to perform the task.He denied having talked with Masood Mahmud about this mission or being reminded by him. Regarding Amir Badshah he stated that he had ill-will against him, because he gave adverse views against him in an inquiry. He denied that Amir Badshah ever telephoned to him. He denied any knowledge of the calibre and nature of the weapons with F. S. F. Regarding issue of arms, he stated that they were entered in the daily diary including the diary taken over in possession by the F.

1. A. He denied that Ghulam Hussain Inspector met him at 3-00 p. m. on the 12th November. 1974, at Rawalpindi since he was at Peshawar at that time and had left for Rawalpindi by P. I. A. at 5-15 p. m. Regarding Inspector Fazal Ali he stated that he had made statement under some influence. Regarding the T. A. Bill Exh. P. W. 31/6 of Ghulam Hussain he stated that it is the personal responsibility of the individual performing certain journey to bill out the same. It was not his duty to scrutinize or vet the bill. His job was only to mark it to the Accounts Branch. To a question whether he had resiled from the statement as he had made unsuccessful efforts to be made an approver, he stated that he was asked to become approver but he did not opt to become one since he did not agree to act according to the dictates of the prosecution. In reply to Question No. 4, regarding the statements of Ghulam Hussain and Masood Mahmud he made several other allegations against Masood Mahmud to the following effect : (a) he pointed out once that the wireless equipment s which were worth crores of rupees were not being properly surveyed or inspected and it was imperative for the Command to go to the highest in order to get an inspection team through the good offices -of the G. H. Q. but the fact remains that very poor staff had been taken for this purpose; (b) some cloth was being purchased for the preparation of uniforms. He suggested that the matter may be brought to the notice of the Directorate General

1. P. & S., Karachi but P. W. 2 asked him to keep off and the cloth was accepted piecemeal by another Director, Ch. Muhammad Ramzan; (c) P. W. 2 did not express good views in regard to Mr. Asghar Khan to which he (the accused) objected and this led to an exchange of hot words.

323. Regarding Ghulam Hussain he stated that he had deputed A. D. Najmi to conduct the inquiry against him into some alleged malpractices and corruption prevailing in the Line at Recruits Training Centre, Pehur. Ghulam Hussain was Inspector and Ch. Abdullah Khan was Deputy Director.

324. The accused filed a written statement in which he added that during the period of Anti-Qadiani Movement in the year 1974, P. W. 2 had verbally, ordered plain clothes men to stand guard at the house of Mr. N. A. Farooqi, his relative, and this guard remained posted at his house for a period of one year. P. W. 2 got annoyed because of the objection taken by the accused to this illegality. He further felt annoyed after the promulgation of Martial Law, on seeing a statement of the accused alleging that be had taken more than Rs. 95,000 out of the F. S. F. Secret Fund. The accused also made a statement before the Inquiry Committee, implicating P. W.

2. He further stated that lie had held an inquiry against Amir Badshah P. W. 20 also and submitted his report Exh. P. W. 20/1-D. In paragraph No. 8 of the written statement he stated that the Armoury at the Headquarters was meant only for the supply of Arms and ammunition in bulk to various Battalions and not for individuals. He added that he had made adverse observations against P. W. 4 also during an inquiry against one Mustafa Khan of Quetta;

325. All the confessing accused, namely, Ghulam Mustafa, Arshad lqbal and Rana Iftikhar Ahmad admitted having made voluntary statements under section 164, Cr. P. C. and confessed the role played by them in the incident o of the night between the 10th and 11th November, 1974. Ghulam Mustaf admitted that he had been given a jeep under the orders of Mian Muhammad Abbas and the latter had supplied to him fake number-plates with instructions that none of the number-plates should be displayed on the jeep for a long time. He admitted having obtained; at different times, pistols, step-guns and their ammunition from Amir Badshah Khan as stated by the prosecution witnesses. According to him, the first sten-gun with 30 cartridges and two pistols with 16 cartridges were obtained by him for the mission to assassinate the Retired Justice Jamil Hussain Rizvi under the orders of Mian Muhammad Abbas who informed him that such were the orders of P. W. 2 and the principal accused. He was, however, deterred from carrying out the; mission in view of the old age of Syed Jamil Hussain Rizvi despite threat of his extermination and annihilation of his family and children given by Mian Muhammad Abbas. He referred to similar threats given at different stages (as stated by Ghulam Hussain) by Mian Muhammad Abbas to him and the other two confessing accused as well as approver Ghulam Hussain. He supported the statement of Amir Badshah Khan also in every respect in so far as it concerned the supply of arms and ammunition to him under the orders of Mian Muhammad Abbas. He also stated that on his visit to the spot on the 11th November, 1974, he had seen the marks of bullet on the wall and had also passed on the information to the Control Room as well as to Mian Muhammad Abbas as instructed by him.

326. He stated that he was an ex-serviceman and was promoted after 30 years' service as Naib Subedar with exemplary character. His father had also been an ex-serviceman and a Member of Quaid-i-Azam's body-guards. According to him, he was administered an oath in 1973 when he was inducted into the F. S. F. and in this oath he undertook to abide by the orders of his superior, to be loyal to Pakistan and to the principal accused personally and obey all the orders even if they entailed any danger to his life.

327. He produced his pass bearing No. 5807 for the National Assembly to show that he had been on duty in the National Assembly where he used to gather intelligence report from the Cafeteria and then pass it on to Mian Muhammad Abbas. Twenty to Twenty-five jeeps of the F. S. F., according to him, used to patrol around the building with weapons like sten-guns and rifles with the object of preventing any demonstration against the Government and also to overawe the Members of the Opposition. He stated that he had seen Masood Mahmud P. W. 2 for the first time in the High Court and his . contact was directly with Mian Muhammad Abbas. The F. S. F., according to his statement, had been set up for terrorising people, for dispersing public meetings and processions of the Opposition Leaders and for suppressing any sort of opposition to the Government and also for making the People's Party meetings successful. He referred to certain other secret missions which had to be performed by the F. S. F. including an attack on Muhammad Ali Actor under orders by Mian Muhammad Abbas.

328. At the end he stated that he had acted in accordance with law and had made true statement regarding all the facts of the case before the Court. He had not committed any offence and instead of being arraigned as an accused in the case he should have been produced as a witness. He summed up by saying that this offence had been committed under the orders, pressure and intimidation of Mian Muhammad Abbas and on being told that it was a duty provided by the F. S. F. Act and the Rules, and also the oath administered to him, which he should perform.

329. He filed a written statement in which he repeated what had already been said. He added in this statement that once he received a telephonic call from Mian Muhammad Abbas to ask Ghulam Hussain to finish as soon as possible a traitor to the Nation. He also said that the principal accused and P. W. 2 had disgraced him on account of the delay and if Ghulam Hussain did not execute the mission he should be thrown out of the office. He threatened that another party was being detailed which will carry out the secret mission and will deal with the confessing accused as well as Ghulam Hussain. The accused referred to a murderous attack in which Amjad Iqbal. brother of Arshad Iqbal received fatal injuries.

330. Arshad Iqbal, as stated above, confessed the role said to have been played by him. He referred to the telephone call by Ghulam Mustafa to Mian Muhammad Abbas in which he informed the latter about the refusal of Arshad lqbal to perform the mission. Soofi Ghulam Mustafa then informed him of threatening words used by Mian Muhammad Abbas on the telephone. He received a telephonic call after one hour from Ch. Nazir Ahmad, Deputy Director (Intelligence and Operations), Rawalpindi, who threatened him with murder if he failed to perform the duty assigned to him. 'He stated that he had to abide by the orders because he and his other c6-accused were afraid of their lives. Soon after the occurrence he tendered his resignation to Ghulam Mustafa who forwarded it to Mian Muhammad Abbas but the latter rejected it and held out threats to him. He submitted other resignations also which were similarly turned down. He stated that when P. W. 2, Mian Muhammad Abbas and Ch. Nazir Ahmad were fed up with his resignations, they planned his murder but in the murderous assault carried on him in 1975, his elder brother Amjad Iqbal received grievous injuries as a result of which he died. He gave instances where direct instructions were given to him by Mian Muhammad Abbas. He referred to various misdeeds of the F. S. F. and the secret missions which he was asked to perform, but it is unnecessary to describe the same in detail.

331. He filed a written statement in which he reiterated what he had already stated under section 342, Cr. P. C.

332. Rana Iftikhar Ahmad, the last confessing accused also gave the details of the occurrence. He also relied upon the form of oath, which according to him, bound him to remain loyal even to the principal accused. He stated that the persons enrolled in the F. S. F were brain-washed so as to abide by their oath and obey all orders issued by the Headquarters. He also referred to several other missions in which he participated as a Member of the F. S. F. under order of Mian Muhammad Abbas and said that Mian Muhammad Abbas used to be the incharge of all such missions. He reiterated almost all these points in his written statement.

333. No evidence was led by the principal accused in his defence.

334. Mian Muhammad Abbas accused summoned three defence witnesses namely Safdar Shah, Bahadur Ali and Azmat Ullah- but gave them upon the 7th February 1978. He examined three formal witnesses, Muhammad Amin . D. W. 1, Abdul Majid, D. W. 2 and Abdul Khaliq, Deputy Director, F. I. A. D. W. 3 who were summoned for the production of some record. D. W. 1 Muhammad Amin produced a copy of the statement of Mian Muhammad Abbas dated the 21st July 1977, pertaining to the affairs of F. S. F. (Exh. D. W. 1/1). Abdul Majid D. S. P. Special Cell, Ministry of Interior, Government of Pakistan, D. W. 2 was produced to prove an order alleged to have been passed by Mian Muhammad Abbas directing an inquiry to be held against Ghulam Hussain P. W. 31, and Anwar Anjum Accountant. The witness, however, denied the existence of such an order on the record, He stated that the document on the record only showed that an inquiry was ordered by Sardar Tahir Ali Kheli, Director Training, F. S. F. who had sent the papers to Mian Muhammad Abbas for appointment of a .particular person as an Inquiry Officer from his Cell but Mian Muhammad Abbas regretted his inability to do so and suggested that one Mr. Najmi alongwith an Inspector of the Accounts Branch may be asked to do so.

335. D. W. 3, Abdul Khaliq, who had also appeared as P. W. 41, produced attested copies of Report Yo. 2 dated the 26th October 1974, and report No. 5 dated the 7th November 1974 from the Daily Diary of Battalion No. 3, F. S. F. Walton Camp, Lahore, which were taken into possession by Recovery Memo. Exh. D. W. 3 by Inspector Muhammad Boota P. W.

39. He also produced the Office copy of the T. A. Bill of Mian Muhammad Abbas for the month of November 1974, to prove the presence of Mian Muhammad Abbas in Peshawar till the afternoon of the 12th of November 1974. He produced letter dated the 10th January 1973, purporting to have been initialled by 'late Haq Nawaz Tawana, former Director General of the Federal Security Force.

336. The three confessing accused produced Abdul Majid who had already appeared on behalf of Mian Muhammad Abbas, as D. W.

4. He produced Annual Confidential Reports of Mian Muhammad Abbas, Exhs. D. W. 411 pertaining to the period from 1-1-1974 to 31-12-1974 Exh. D. W. 4~2 for the calendar year 1975 and Exh. D. W. 4/3 for the calendar year 1976. He produced the order Exh. D. W. 4/4 dated the 15th January 1974, passed' by Mian Muhammad Abbas, Acting Director, F.. S. F. promoting Ghulam Hussain P. W. 31, as Sub-Inspector and another order Exh. D. W. 4/5 dated the 16th July 1974, passed by Mian Muhammad Abbas awarding Ghulam Hussain, Inspector Rs.75 with a recommendation certificate for running a Commando Course painstakingly and efficiently. He also proved documents Exh. D. W. 4/6, a recommendation by P. W. 2 to process the case of promotion of Mian Muhammad Abbas to the post of Director, F. S. F. in Grade 19; D. W. 4/9, an order of P. W. 2 dated 15th June 1976 according sanction of honoraria to Officers of the F. S. F. including Mian Muhammad Abbas for the performance of works of special merit; Exh. D. W. 4/ 7 notifying grant of two months' leave by P. W. 2 to Mian Muhammad Abbas from 15th March 1975, and Exh. D. W. 4/8, a certificate of no objection to the grant of loan to the said accused. This witness was directed to bring the oath taken at the time of their induction in the F. S. F. by Ghulam Mustafa and Arshad Iqbal, but he could not find such oath on the record. The only oath of Ghulam Mustafa discovered on the file is dated 5-12-1974 although Ghulam Mustafa was recruited on 1-7-1973. Similarly, Arshad Iqbal's oath is dated 9-11-1973 although he was recruited on 1-6-1973. In cross-examination he proved Exh. P. W. 4/10, T. A. Bill of Mian Muhammad Abbas which as stated above was produced by the same witness as P. W. 2 to prove the stay of Mian Muhammad Abbas in Peshawar till the afternoon of 12th November 1974.

337. After the production of this evidence Mian Muhammad Abbas filed a supplementary written statement making reference to his statement Exh. D. W. 1/1 made before the F. S. F. Inquiry Committee, identifying the original entries in the Roznamcha Register taken into possession by Memo. Exh. D. W. 3/1 to 'be in the handwriting of Muhammad Yousaf, Head Constable. He stated in the statement that the Annual Confidential Reports were given by the Deputy Director-General (O) who was the reporting officer and P. W. 2 had given his remarks on those reports in routine which in fact indicated that he was not prepared to say anything in his favour. lie admitted that he had obtained loan from the Agricultural Development Bank on a No-Objection Certificate, but he stated that P. W. 2 bad no hand in the matter. He admitted that he was given an honorarium of Rs. 700. but he added that this was given to him by the Director. Regarding the award of Rs. 7.5 to Ghulam Hussain, he stated that it was given on the recommendation of that Director-General. He stressed, however, that there was no separate Commando Course at Islamabad.

338. After the defence evidence was closed Mian Qurban Sadiq Ikram argued that the Public Prosecutor should be called upon to sum up his case and the accused should be allowed to sum up his reply later. This submission ignored section 265-6, Cr. P. C. which provides in its subsection (2) that "In cases where the accused, or any one of the several accused examines evidence in his defence, the Court shall, on the close of the defence case, call upon the accused to sum up the case whereafter the prosecutor shall make a reply." This is a mandatory provision which clearly envisages the summing up of their case first by the accused persons where even one accused examines evidence in his defence. If no defence evidence bad been led the matter would have been governed by subsection (1) of this section and in that case the defence would have had the opportunity to sum up its case after the arguments by the prosecution. The contention was consequently repelled. The principal accused also raised the same contention when he was asked on 22-2-1978 to be ready to argue his case after the arguments of Mian Muhammad Abbas but the Court did not find it possible to agree to this. He then refused to argue his case.

339. Before dealing with the evidence it would be necessary to dispose of certain objections by the learned counsel. Before the charges were read out to the accused, Mr. D. M. Awan, appearing for accused No. 1 raised some preliminary objections against the competence of the trial. He argued that the Federal Investigation Agency Act, 1974 (Act VIII of 1975) allowed the Federal Investigation Agency constituted under the Act to enquire into and investigate offences specified in the Schedule and no other offence. He argued that sections 302 and 307, P. P. C. were not included in the Schedule to the Act and consequently could not be investigated by the Agency. He further urged that though the Federal Government has the power under section 6 of the Act to amend the Schedule by notification in the official Gazette so as to add any entry thereto or modify or omit any of its entry, yet it did not make any amendment in the Schedule incorporating either of these sections.

340. This argument is without merit since section 302, P. P. C. is one of the sections added to the Schedule by Notification No. SRO-405(I)/75 published in the Gazette of Pakistan, Extraordinary, Part II, dated the 9th April 1975. Section 307 deals with offence of attempt to murder which can be investigated by the Agency under section 3 of the Act which empowers the Agency not only to investigate offences specified in the Schedule but also "an attempt or conspiracy to commit, and abetment of any such offence."

341. The second objection of Mr. D. M. Awan is that the final report was not submitted by a Police Officer Incharge of any Police Station as .required by section 173, Cr. P. C. but was submitted by. Mr. Abdul Khaliq, Deputy Director, F. I. A. The cognizance of the case could not, therefore, be taken by the Magistrate and the trial of the accused on such challan would be illegal. He argued that section 190, Cr. P. C. allows a Magistrate to take cognizance of the offence either upon a report in writing of facts constituting the offence made 5y any police officer, or upon receiving a complaint or upon information from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed, where the cognizance is taken upon ,~ report it must be on the report of a Police Officer described in section 173; Cr. P. C. :. e., an Officer-in-Charge of a police station. Since in the instant case there is no report of an officer-in-charge of the police station, the Magistrate had no jurisdiction to take cognizance of this case or to send it to the Court of Session.

342. In reply Mr. M. Anwar produced Notification No. I0/1/75-FIA-II dated the 12th of January 1976, by which the Government, in exercise of the powers conferred by subsection (4) of section 5 of the Federal Investigation Agency Act, 1974, declared inter alia offices of the Deputy Director and the Assistant Director, Federal Investigation Agency, Lahore as Police Stations for the purpose of the Code of Criminal Procedure on and from the II of January 1975. Subsection (2) of section 5 of the Act provides that any member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under the Act, exercise any of the powers of an Officer-in-Charge of a police station in an area in which he is for the time being and, when so exercising such powers, shall be deemed to be an Officer-in-Charge of a police station discharging his functions as such within the limits of a station. The Deputy Director or the Assistant Director, as the case may be, whose offices were notified as police stations must therefore be held to be the Officer-in-Charge of the police station. This objection also is without force.

343. The third objection is that on 11th of September 1977, when the Magistrate took cognizance of this case and sent it under section 193, Cr. P. C. to the Court of Session, only an incomplete challan had been presented. It was urged that the Magistrate had no authority to take cognizance of the matter unless a complete challan was presented to him. He urged that only such a challan could be said to be a final report as required by section 173, Cr. P. C. .

344. This objection is equally without merit since the law does not recognize the distinction between an incomplete challan and a complete challan. As observed in Wazir v: The State (P L D 1962 Lah. 405), trial can be started on an incomplete challan. In Zafar Sartvar v. The State (1969 S C M R 59) it was held that there is no provision for submission of any interim or incomplete report under p section 173, Cr. P. C. In that case the investigation was complete in all other respects except that the report of the Ballistic Expert had not been received by the 27th of December 1967. It was held that it could not, therefore, be said that the report dated the 27th December 1967, did not satisfy the -requirement of section 173 or that the Magistrate was precluded from taking cognizance until the final challan was submitted. In Ata Muhammad v. Inspector-General of Police, West Pakistan (P L D 1965 Lah. 734) and Muhammad Akbar v. State (1972 S C M R 335) it was held that there is no statutory prohibition for the G police not to embark on a fresh investigation of the case even after the submission of the final report and to remove defects in the first investigation detected subsequently.

345. Mr. D. M. Awan conceded that this was the law but he submitted that it became inapplicable after the amendment of the Code of Criminal Procedure by the Law Reforms Ordinance and addition of section 265-C which makes it incumbent upon the Court to supply to the accused copies of the statements of witnesses under sections 161 and 164, Cr. P. C. 7 days before the start of trial. He submitted that an investigation continued after the start of trial may render nugatory the provisions of the above section.

346. This argument is misconceived. There is no justification for reading into the language of section 265-C such an interpretation o sections 173 or 190, Cr. P. C. Section 265-C only means that after the submission of challan and before the start of trial the statements of those witnesses who have been named in the calendar must be supplied to the accused persons. It does not take away the power of the Investigating Officer to make a fresh investigation or to correct errors in the earlier investigation by submission of a fresh report. If new witnesses are added, the Court can substantially comply with the provisions of section 265-C by affording opportunity to the defence to meet the additional evidence b . H adjourning the trial for a reasonable time not exceeding a week.

347. What is requisite before a Magistrate takes cognizance is that the report submitted to him, even though incomplete, should make out an offence. In the present case the incomplete challan dated the 11th o September 1977, included the names of all the accused, the evidence collected by that time. as also the facts prima facie connecting the accused with the offence. In these circumstances, nothing more was required for the learned Magistrate to enable him to take cognizance or for the trial Court to start trial. Moreover the mere fact that a Police Officer not competent to l, investigate has carried out the investigation is not a. defect which may vitiate the trial, Walizar v. State (P L D 1960 Kar. 204) and Manzoor Elahf v. State (P L D 1960 Kar. 607) nor is a complete challan a sine qua non of the trial.

348. It was also argued that the High Court could have transferred the case to its own file after the same was taken cognizance of by the Magistrate and was sent by him to the Court of Session. This argument would be without force if once it is held that the Magistrate can take cognizance of an incomplete challan and transmit the case on its basis to the Court of Session under section 193, Cr. P. C.

349. After the start of trial both the prosecution and the defence wished the report of Mr. Justice Shafi-ur-Rabman to be admitted in evidence. Mr. Justice Shafi-ur-Rahman was appointed as a Tribunal under the provisions of the West Pakistan Tribunals of Inquiry Ordinance I I of 1969, to inquire into the causes of the death of the deceased.

350. The object of the prosecution was to prove from this report that the Tribunal had specified certain guiding principles for investigation, but the Investigating Officer while conducting the investigation, purposely did.' not keep those principles in view. Mir. D. M. Awan, the learned counsel for the principal accused wished to rely upon certain portions of the report which according to his contention, was favourable to his client. He also wanted. to rely upon it to prove his assertion that Ahmad Raza. P. W. 1 had in a statement made before the Tribunal referred to more than one person entertaining a motive to kill him. He also complained that contrary to the provisions of section 265-C the copy of that statement had not been supplied to the defence.

351. In reply to this last contention the learned Special. Public Prosecutor made a categorical statement that only one statement was made by Ahmad Raza Khan Kasuri before the Tribunal and the copy of that statement had been supplied to the learned counsel for the defence. Ahmed Raza Khan Kasuri also denied having made any other statement before the Tribunal.

352. Mr. D. M. Awan relied upon Malik Diet v. Muhammad Aslam (PLD1969SC136) in which it was held that judgments, whether inter parties or not, are conclusive evidence for and against ail persons whether parties, privies, or strangers, of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In other words, the law attributes unerring verity to the substantive as opposed to the judicial portions of the record. It was also held in that case that where the judgment is inter partes, even recitals in such a judgment are admissible to prove a statement or admission or an acknowledgment made by a party or his predecessor-in-interest in his pleadings in a previous litigation. Mr. D. M. Awan also relied upon the provisions of section 4 of the West Pakistan Tribunals of Inquiry ordinance, 1969 which confers upon the Tribunal powers of a civil Court for certain specified purposes. He argued on this basis that the report of the Tribunal is a judgment to which the authority of the Supreme Court would apply. 353. .None of the arguments have any force. The authority relied upon by Mr. D. M. Awan is distinguishable for several reasons. The Evidence Ac does not make findings arrived at on the evidence before the Court in one h case evidence of that fact in another case. Each case is to be judged upon its own facts established by the evidence led therein. Muhammad Khurshid v. State (PT.D1963SC157). Malik Din v. Muhammad Aslam, does not depart from this principle. It only lays down the principle that (1) a judgment is evidence of its own existence (2) of the date on which it purports to have been delivered and (3) of its effect as provided by law, as distinguished from the accuracy of the decision rendered. A judgment which decides disputes between two parties is admissible ever. to prove recitals of pleadings, admissions, or' acknowledgements made during the course of litigation provided that the same parties are ranged as litigants and disputants in the case in which the earlier judgment is admitted in evidence.

354. Now the Tribunal constituted under the above Ordinance is not al Court and is not competent to render any judgment. The Tribunal is appointed under section 3 of the above Ordinance by the Government for the purpose of making an inquiry into any definite matter of public 3mpottance. Section 4 confers powers of a civil Court upon the trial in order to enable it to perform its functions of 'enforcing attendance of persons for their examination on oath, for discovery and protection of documents, for receiving evidence on affidavits or through Commissions. Analogous powers are conferred by subsection .(6) of section 5 for the limited purpose of requisitioning any public record or copy thereof from any Court or office.

355. The Ordinance does not envisage the adjudication of any controversy, between two contending parties or trial of any offence. These provisions neither confer upon the Tribunal the status of a Court (except.,, for the limited purpose expressed in the above two sections) nor render its report effective or executable in any manner, or even binding upon the Government. The report cannot be held to be a judgment:

356. It was held in Muhammad Saeed v. Election Tribunal, West Pakistan etc. (I) that generally a person performs judicial functions if he is confined by the law to adjudicate upon and determine, as between the parties, some controversy relating to the existence or non-existence of a right or liability, whether such right or liability be the creation of common law or Statute, provided the right or liability is actionable under the general law or special law, and the duty to determine the controversy is derived from the State and rests on the ascertainment, with notice and opportunity to parties of the facts and the law applicable to them and not on policy, expediency or some other extraneous considerations, for reasons given in the foregoing para., many of the criteria laid down in this case would not apply to the Tribunal under the Ordinance aforementioned. The report of the Tribunal is not therefore a judgment.

357. In this view of the matter the authority of the Supreme Court which deals with settlement of disputes inter partes by a judgment of the Court is clearly distinguishable.

358. The report being merely an opinion of a Tribunal based upon the evidence recorded by it is not relevant under any section of the Evidence Act nor reference to any such section was made by .the learned counsel during arguments. The contents of the report and the reference in it to any statement made before the Tribunal is. not therefore relevant.

359. The relevant portions of the report which were relied upon by Mr. D. M. Awan were read before us. 1 do not find those extracts susceptible of any interpretation in favour of the existence of a supplementary statement of Ahmad Raza Kasuri in the record of the Tribunal. Mr. D. M. Awan during the course of trial had been referring again and again to a similar statement which Ahmad Raza Kasuri is alleged to have made before a Deputy Superintendent Police under section 161, Cr. P. C. during the investigation of the incident of firing on Ahmad Raza Kasuri at Islamabad. It is quite possible that the Tribunal might have referred to some statement alleged to have been made by Ahmad Raza Kasuri before that Police Officer. Even if it is assumed that such a statement under section 161, Cr. P. C. was made by Ahmad Raza Kasuri P. W. 1 (although this is denied and no such statement has been proved) it would not be relevant except for the purpose of contradicting the witness (P. W. 1). It is, therefore,' difficult to hold that the Tribunal's report, if it refers to this statement can be relevant for any other purpose or in the absence of independent proof of the existence of such a statement can be used even for the purpose envisaged in section 162, Cr. P. C. I am, therefore, of the view that the report of the Tribunal is inadmissible in evidence.

360. Some statements are attributed to the persons who are now dead. (1) P L D 1957 S C (Pak, 91 'they were Abdul Ahad, D. S. P., Ichhra, an Investigating Officer in this case, Abdul Hameed Bajwa an Officer on Special Duty in the Prime Minister's Secretariat who assisted P. W. 3., and Haq Nawaz Tiwana, prior Director-General, F.'S. F.

361. The evidence about Abdul Ahad is that he prohibited Abdul Hayee Niazi, S. H. O., lchhra, P. W. 34 from preparing the recovery memo. of articles on 11-11-1974 until he reached the place of occurrence, on the ground that the name of the Prime Minister was mentioned in the First information Report, that he asked P. W. 34 to show the empties to the Ballistic Expert before they were sealed, that he sealed the F.

1. R. P. W. 34/3, that on 11-11-1974 he took the empties and bullet in loose condition in a service envelope to the residence of the Inspector-General of Police, and on return from there informed P. W. 34 that the Inspector-General bad kept the above articles and said that he would pass further orders and investigation should be conducted according to his orders, that after his return from Rawalpindi, two or three days after the 13th November 1974, he showed to P. W. 34 a draft for preparation of recovery memo. of empties and bullet which, he said, had been given to him from the Prime Minister's House and which he took back after the necessary memo. was prepared, that at the time of preparation of the recovery memo. the empty cartridges were not present but the D. S. P. told him that the same would be returned later, that P. W. 34 found the number of the empties on the draft recovery memo. different from the empties actually recovered and when he questioned the D. S. P. about the empty cartridges he intimated to him that it was an order which must be complied with "otherwise both of us would find ourselves in trouble and not only our services would be terminated but we would also be involved" (in criminal cases), that the D. S. P. gave empty cartridges still unsealed on 23rd of November 1974 (i.e. 12 days after their recovery), and ordered P. W. 34 to seal them and send them to the Inspectorate of Armaments and that . the lead bullet and two metallic pieces recovered from the spot were given much later and sent to the Inspectorate of Armaments on 24-11-1974 under orders of D. S. P.

362. Similarly, there is evidence in regard to certain statements made at different times, orally as .well as in writing by Abdul Hameed Bajwa. 1t is in the evidence of Muhammad Asghar P. W. 12, Sardar Abdul Wakil Khan, P. W. 14, Muhammad Waris, P. W. 15 and Abdul Hayee Niazi, P. W. 34 that Abdul Hameed Bajwa on different occasions showed bis resentment that the F. t. R. was recorded on the statement of Ahmad Raza hasuri, P. W. I. His view was that this report ought to have been recorded on the statement of some other complainant in which case Ahmad Raza Kasuri could be examined under section 162, Cr. P. C. as a witness only and in such a case the name of the .Prime Minister would not have been recorded in the F.

1. R. and received. publicity. To the blame effect is a note Exh. P. W. 3/2-A,Il dated 20th November 1974, by Abdul Hameed Bajwa. There is also evidence that Abdul Hameed Bajwa made inquiries about the empty cartridges recovered from the place of occurrence but Sardar Abdul Wakil Khan, P. W. 14 tried to put him off by saying that they had already been sealed. Abdul Hameed Bajwa was very much upset and remarked, "What was the hurry when the name of the Prime Minister was involved in it". Sardar Abdul Wakil Khan also stated that he enquired about a fortnight later from Abdul Ahad (D. S. P.) whether the result from the Ballistic Expert to whom the empties were sent, had been received. He was surprised to hear that the sending of the empties had been delayed because they had been taken by Abdul Hameed Bajwa and returned to him after 2 or 3 days.

363. Similarly there is evidence of Masood Mahmud, P. W. 2 to the effect that before he accepted the post of Director-General, Federal Security Force, Abdul Hameed. Bajwa impressed upon him the fact that if he did not accept the job offered to him, his wife and children might not be able to see him again. He reminded him several times about the mission to liquidate Ahmad 'Raza Kasuri P. W.

1. He communicated to him an order of the principal accused to keep his mouth shut when it was discovered that P. W. 2 knew about the delivery of arms and ammunitions to Jam Sadiq Ali in the office of the Defence Secretary.

364. There is evidence that secure reports were sent by Abdul Hameed Bajwa to the Prime Minister vide covering letters Exhs. P. W. 3/1-A, p. W. 3/1-B and P. W. 3/1-C. There is not only evidence that Abdul Hameed Bajwa made efforts to bring Ahmad Raza Kasuri to the fold of the people's Party but there are also reports sent to the then Prime Minister (the principal accused) regarding Ahmad Raza Kasuri's activities in this regard. These are Exhs. P. W. 3/2-C, P. W. 3,/2-F, P. W. 3/2-J, P. W.3/2-K, P. W. 3/2-L, P. W. 3/2-N, P. W. 3/2-O, P. W. 3/2-Q, P. W. 3/2-R and p. W. 3/2-S. Some other documents bear the signature of Abdul Hameed Bajwa e.g. Exhs.. P. W. 3/2-H, P. W. 3'2-G, P. W. 3/2-P, and P. W. 3/4-A. There are T. A. Bills of Abdul Hameed Bajwa bearing signature Exhs. P. W. 31'5, P. W. 3/6, P. W. 3/7, P. W. 3/8, P. W. 3/9, P. W. 3/10. There is evidence that Abdul Hameed Bajwa directed Ashiq Muhammad Lodhi P. W. 28 to report to him the description of the gunman of Ahmad Raza Kasuri who accompanied him to the National Assembly.

365. Mr. D. M. Awan some times raised specific objections in regard to such and similar statements, oral or written, that they do not fall under any of the clauses of section 32 of the Evidence Act and as such are inadmissible. This objection was not taken specifically m regard to some documents emanating from or signed by Abdul Hamid Bajwa and some oral statements ascribed to him. It was, however; understood that the objection under section 32 of the Evidence Act would relate to each statement/document attributed to Abdul.Hameed Bajwa or Abdul Ahad.

366. Section 32 of the Evidence Act provides that a statement, written or verbal, of relevant facts made by a person who is dead . . . . . . are themselves relevant facts in the following cases : (1) (2) When the statement was made by such person in the ordinary course of business, . . . . . . . . . or in the discharge of professional duty, (3) When the statement . . . . . . if true, it would expose him . . : . , .. . . . to a criminal prosecution . . . . . . (4) (6) (7) (8) The evidence objected to either consists of threats to witnesses or efforts to tamper with evidence clearly with a view to save the actual offenders from legal punishment or statements and reports in writing sent to the Prime Minister or other officers. The evidence of P. W. 28 relates to something done in furtherance of the conspiracy.

367. The provisions in Chapter XIV of the Code of Criminal Procedure particularly sections 154, 157, leave no manner of doubt that it is incumbent upon the officer-in-charge of the police station to record the first information Q report (See Sawant v. S. H. O., Police Station, Saddar, Kasur and another (P L D 1975 Lah. 733) Ch. Shah Muhammad v. S. H. O., Police Station Rahim Yar Khan and 2 others (P L D 1976 Lah. 1412) and Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others (P L I) 1977 Lah. 424) as well as to start investigation on receipt of such information to apprehend the real culprit and to bring him to book. Similar is the provision of section 23 of the Police Act. It provides that it shall be the duty of every Police Officer to detect and bring offenders to justice and to apprehend all persons who he is legally authorised to apprehend, and for whose apprehension sufficient grounds exist. A Police Officer no doubt acts subject to supervision by higher officers in the same hierarchy as is clearly laid down in Paragraph R No. 25.17 of the Police Rules, 1934, but he cannot' act arbitrarily, capriciously and whimsically since he is as much bound by law as any other person and may for violation of duty or wilful breach or neglect of any rid or regulation, be liable to penalty under section 29 of the Police Act. All this presupposes that he must be left free, no doubt subject to lawful order made by any competent authority or supervision by higher Officers, to investigate the matter without interference from any other agency.

368. In the case of Emperor v. Khawaja Nazir Ahmad (AIR 1945 P C 18=I L R 1945 Lah.) the following observations were made by their Lordships of the Privy Council deprecating interference even by the Judiciary although honest investigation of a case is necessary for correct administration of justice : "In their Lordships' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code to give directions in the nature of habeas corpus." In the case of Shahnaz Begum v. Hon'ble Judges of the High Court of Sind Baluchistan (P L D 1971 S C 677), it was held that the High Court has no power of supervision or control over Investigation Agencies under the Letters Patent. In Raiz Muhammad v. Haq Nawaz (1971 S C M R 717) the High Court suggested to the Inspector General of Police to transfer investigation and it was accordingly transferred from the local police to the Crime Branch. The order was held to be without jurisdiction.

369. If therefore, the investigation which is a step towards administration of justice is outside the purview of the Court it cannot obviously brook an interference from any other quarter much less from persons who have the least connection with any Police Agency. Moreover, the investigation in this, case was carried on by the Punjab Police. The Constitution does not permit any interference by the Central Executive in matters within the sphere of the Provincial Government.

370. It is obvious from the evidence that illegal interference in the investigation of the case by Abdul Hamid Bajwa etc. was plainly with a view to harbour the real offenders and to make it impossible for the Office investigating the case to detect the persons who had committed the offence.

371. It was the duty of Abdul Ahad to investigate the case or supervise its investigation according to law in order to detect and bring the offenders to justice. In order to preserve the evidence, it was his duty to see that the empties were sealed and a recovery memo. prepared immediately after the recovery. He delivered the empties to Abdul Hamid Bajwa and subjected ,himself to his influence in the investigation of the case. Th6 directions given by him to P. W. 34 in this connection would have exposed him to the prosecution under sections 217 and 218 of the Pakistan Penal Code since what he did amounted to disobedience of a direction of law as to the way in which he was required to conduct himself as such public servant and charged with the preparation of any record, as he was, he prepared that record in a manner which he knew to be incorrect. These illegal acts and omissions were clearly with a view to save the actual offenders from legal punishment. The threats would have exposed him to prosecution under section 506, Penal Code.

372. Abdul Hamid Bajwa would have been exposed equally to prosecution for abetting those offences. In these circumstances, I have no doubt in m mind that the statements attributed to these dead persons regarding threats and interference with the course of investigation would be admissible under clause (3) of section 32 of the Evidence Act.

373. The order to P. W. 28 to report to him the description of the gunman of Ahmad Raza Kasuri would have exposed Abdul Hamid Bajwa to prosecution for the offence of conspiracy in this case. It would also be covered by section 32(3), Evidence Act. Mr. Qurban Sadiq Ikram did not argue in favour of interference by Abdul Hamid Bajwa etc. in the investigation of the case. He argued that the Investigating Officer was only brought on the right lines so that P. W. 1 may not exploit the situation. I do not feel impressed by this argument. This argument ignores that the superior authority of Abdul Hamid Bajwa and Saeed Ahmad Khan in that regime gave an advantage to them over the entire police organisation including the Inspector-General of the Police. Their orders or directions could not be disobeyed by any of them. This was not, therefore, only an interference but a case of directing the investigation according to the whims of those officers.

374. The evidence about the report is admissible and relevant under clause 2 of section 32 as a statement made in due course of business or in discharge of professional duty. Saeed Ahmad Khan P. W. 3 specifically stated about file Exh. P. W. 3/2 that it was being maintained in the ordinary course of business. The documents bearing the signature of Abdul Hamid Bajwa proved from that file would fall under this provision. This principle will apply to the documents also from files Exh. P. W. 3/1 and Exh. P. W. 3/3 and the remarks or entries in the Peon Book since these are all official documents maintained presumably in the ordinary course of business and in discharge of duties.

375. This fact is virtually admitted by the principal accused in his statement under section 342, Cr. P. C. While on the one hand refusing t answer questions about the above-mentioned files he added that so far as he remembered ("from British times, the D.1. B, the D. G.1. S. I. Special Branches of the Provincial Government and the District Magistrates kept copious files of prominent individuals. This practice has continued from time to time. In view of his refusal to answer the question it would be necessary to refer to section 342, Cr. P. C., which, in case of refusal of an accused examined under that section to answer any question, allows the Court to draw such inference from such a refusal as it thinks just. The Court would be justified in drawing an inference of admission about the maintenance of these files, from the analogy drawn in his answer by the said accused from the working of the Intelligence Branches in the British period and subsequently.

376. Similar objection was raised by Mr. D. M. Awan to the questions put by Haq Nawaz Tiwana (now dead) former Director-General of the F. S. F. to Ghulam Hussain P. W. 31 at the time of his interview for appointment, regarding his qualifications. The statement attributed to Haq Nawaz Tiwan must have been made by him clearly in the discharge of his duties and in due course of business. The objections raised under section 32, Evidence Act are therefore repelled.

377. During the course of cross-examination the learned counsel for the defence, in order to make out a case of improvements made by witnesses in their examination-in-chief before this Court, drew the attention of the witnesses to certain omissions in their earlier statements made before the Police under section 161, Cr. P. C. and sometimes also mad a before a Magistrate under section 164, Cr. P. C. The witnesses explained the omission and sometimes pleaded want of memory. In case where the witness pleaded lack of memory the learned counsel invariably requested the Court to make a note in bracket that the statement put to the witness from his examination in Court was not recorded in some or all of earlier statement. The Court did not consider it necessary to make such a note which does not have any legal sanction. It was pointed out that an earlier statement would be relevant under section 145 of the Evidence Act if it is intended to contradict the witness. The questions put to the witness only pertained to omission which may or may not amount to contradiction. The defence would X therefore be allowed to provisionally prove the earlier statements formal and the questions whether in the circumstances of the case an omission a contradiction would be decided after hearing the final arguments. I is in view of this undertaking that the defence was allowed to prove statements Exh. P. W. 39/5-D, Exh. P. W. 39/6-D, Exh. P. W. 39/7-D, Exh. P. W. 39/8-D, Exh. P. W. 39/9-D, Exh. P. W. 41/3-D, Exh. P. W. 41/4-D, Exh. P. W. 41/5-D, Exh. P. W. 41/6-D and Exh. P. W. 41/7-D made by the witnesses before P. Ws. 39 and 41 under section 161, Cr. P. C. and statements Exhs. P. W. 10/15-D, Exh. P. W. 10/16-D, Exh. P. W. 10/17-D, Exh: P. W. 10/18-D, Exh. P. W. 10/19-D, Exh. P. W. 10/20-D and Exh. P. W. 10/21-D made under section 164, Cr. P. C. before P. W.

10. Mr. D. M. Awan argued that the answer 'I do not remember' itself amounts to a contradiction within the meaning of section 145, Evidence Act. He relied upon Mohinder Singh v. Emperor (A I R 1932 Lah. 103) and Gopi Chand v. Emperor (A I R 1930 Lah. 491). These authorities deal with the manner in which the provisions of section 145, Evidence Act should be used by counsel and Courts while confronting a witness with his statement made before the police under section 161, Cr. P. C. After reproducing the provisions of section 145, Evidence Act, it was laid down in the case of Gopi Chand that : "'The proper procedure would, therefore, be to ask a witness first whether he made such and such statement before the police officer. If the witness returns the answer in the affirmative, the previous statement in writing need not be proved and the cross-examiner may, if he m chooses, leave it to the party who called the witness to have the discrepancy, if any, explained in the course of re-examination. If, on the other hand, the witness denies having made the previous statement attributed to him or states that he does not remember having made any such statement and it is desired to contradict him by the record of the previous statement, the cross-examiner must read out to the witness the relevant portion or portions of the record which are alleged to be contradictory to his statement in Court and give him an opportunity to reconcile the same, if he can. It is only when the cross-examiner has done so, that the record of the previous statement becomes admissible in evidence for the purpose of contradicting the witness and can then be proved in any manner permitted by law." This statement of law was relied upon with the approval in the other case.

378. These authorities are distinguishable since the dictum laid down therein would apply only to a case where a witness has specifically made- a statement in his earlier statement which is said to be contradictory to the statement made during his examination at the trial. It cannot be applied to a case where the statement made at the trial yeas not made at the earlier stages and is a mere omission as distinguished from a contradiction.

379. Strictly speaking, the words "I do not remember" cannot be interpreted as either an affirmance or a denial of the query put to the witness. These words can make out a contradiction only, if in the previous statement the witness admits remembering something which in the statement at the trial he denies re-calling. It cannot, therefore, be laid down as a rule of law that a statement of a witness that he does not remember should always be treated as akin to a denial of a having made the earlier statement. It may be treated as a denial only in case the previous statement is clearly contradictory. to the statement made at the trial. But this principle would not, apply to a mere omission. Where an omission in the earlier statement is put to the witness the words "I do not remember" will only mean that he is not in a position to state whether he made such a statement or not. specific contradiction becomes admissible when the witness does not distinctly admit having made the statement. An example of it is furnished where the witness does not remember if he made a statement. But the converse cannot be true because the principal "does not distinctly admit having made the statement" cannot be stretched to include "does not distinctly admit having omitted to make the statement."

380. It is true that sometime an omission may have the force of an inconsistent or contradictory statement and may be used for the purpose of impeaching the credit of the witness but such cases are rare. A witness may omit to furnish details in his previous statement or the previous statement may be absolutely devoid of details. The omissions of details do not amount to contradiction. They may have the force of contradiction only if the witness omits to refer to anything in the previous statement which he must have mentioned in it in the circumstances of a particular case.

381. The question whether an omission amounts to contradiction was considered in Ponnuswami v. Emperor (A I R 1.933 Mad. 372). It was pointed out in that case that whilst the bare omission can never be a contradiction a so-called omission in a statement may sometimes amount to a contradiction, for example, when to the police three persons are stated to have been criminals and later at the trial four are mentioned. This statement of law by-Burn, J., is clearly based upon the principle that in order to amount to inconsistency the omission must be of such material fact which the witness would not have omitted to state.

382. Generally the witness is confronted with his statement made either before the police under section 161, Cr. P. C. or made before a Magistrate under section 164 of the same Code. As regards the statement under section 162, Cr. P. C. it was pointed out in Queen-Empress v. Nazir-ud-Din (L R 16 All. 207) that such statements are recorded by the Police Officers in a most haphazard manner. The Officers conducting investigation not unnaturally record what seems in their opinion material to the case at that stages and omit many matters equally material, and, it may be of supreme importance as the case develops. Besides that, in most cases they are not experts of what is and what is not evidence. The statements are recorded hurriedly in the miffs,, of crowd and confusion subject to frequent interruption and suggestion from by-standers. Over and above all they cannot be in any sense termed "depositions's they have not been prepared in the way of deposition, they arc not read over to, nor are they signed by, the deponent. There is no guarantee that they do not contain much more or much less than what the witness has said. In Deo Lal Mohtan and others v. Emperor (A R 1933 Pat. 440) is was observed teat such statements are notoriously very condensed and the omission of some detail in the note of a statement is not always a sure indication that such detail was absent from the statement. What was observed in the Allababad case is borne out by the statement of the Investigating Officer Abdul Khaliq P. W. 41 who made it clear that while interrogating the witnesses whose statements have been proved by the defence as Exhs. P. W. 41/3-D, P. W. 4l/4-D, P. W. 41/5-D, Exh. P. W. 41/6-D and P. W. 41/7-D, he bad merely kept note on the basis of which he subsequently reduced the statement to writing. In these circumstances, it is not safe to rely upon the statement under section 161, Cr. P. C. made before P. W. 41 as depositions of the witnesses before the Investigating Officer.

383. It may happen some times that the witness . himself may no consider a fact as material, and that fact may be brought on the record on specific questions by the prosecution. Such are the questions which the Prosecutor might have considered to be material in the light of the law governing the matter or after he has gone through the police record or after the case for the prosecution has developed. The omissions of such fact cannot be considered to verge on inconsistency. There are numerous examples on the present record of such matters.

384. The only example of such omissions which on the present record would have been considered equivalent to contradiction was the statement made about the role of Mian Muhammad Abbas made at the trial, by P. W.

24. But in view of the clarification made by Muhammad Boota P. W. 39 that he had recorded another statement of that witness under section 161, Cr. .P. C. pertaining to Islamabad incident I am of the view that the omission of that role in the statement under section 161, Cr. P. C. recorded about the Lahore incident cannot be considered as amounting to an inconsistency. The learned counsel for the non-confessing accused did apply for copy of the earlier statement alleged to have been made by Ahmad Raza Kasuri in the Islambad incident. He could have also applied for the copy of such statement made by P. W.

24. It can, therefore, be assumed that his statement to the police during that investigation was in accord with the evidence he gave at the trial. In my view the omission put to the witnesses in the present case do not amount to contradictions and are not sufficient to discredit them.

385. During the course of the statement of Raja Nasir Nawaz P. W. 23 who appeared before the Court to prove the F.

1. R. dated 24th August, 1974, Exh. P. 23/1, which pertained to the earlier occurrence at Islamabad. Mr. D. M. Awan made an effort to get the writing of the Deputy Superintendent of Police of the same circle identified on which was stated to be a photostat copy of a copy of statement alleged to have been made by Ahmad Raza Kasuri P. W. 1 before the said Deputy Superintendent of Police under section 161, Cr. P. C. He was not allowed to prove this document through P. W. 23 for two reasons. Firstly, Ahmad Raza Kasuri denied having made such a statement. In such circumstances, even if the identity if the band writing of the Deputy Superintendent of Police was established, it would not have proved that the statement was really made by Ahmad Raza Kasuri. It would be necessary for the principal accused to prove by legal evidence, the fact that the statement was made by P. W. 1, the factum of the making of the statement cannot be proved by the writing being in the hand of the Officer, who purports to have recorded it. The second ground was that the witness did not have before him the original signature. No justification was made for proving the photostat copy of the original statement. The D. S. P. could be produced as a defence witness but this course was not adopted.

386. When Muhammad Yousaf Qazi, P. W. 26 proved the writing of Abdul Hamid Bajwa in Exh. P. W. 3/2-B (which had already been proved by P. W. 3 Mr. Saeed Ahmad Khan), Mr. D. M. Awan raised an objection that it would not be permissible to let the same document be proved by two witnesses. In support of this objection he submitted that he was not allowed by the Court to prove the copy of the statement of Ahmad Raza Kasuri made by him under section 161, Cr. P. C. before the Deputy Superintendent of Police, Islamabad, through P. W. 23 who bad worked with the Deputy Superintendent of Police. This point has already been dealt with in some detail. However, there is no analogy between the objection raised and the order passed earlier. In fact the reference to the earlier order was absolutely irrelevant. The only objection taken to the statement of P. W. 26 was that he could not prove what had already been proved by another witness. To say the least the objection is absurd because it $ would amount to suggesting that a matter can be proved only by the evidence of a single witness and the evidence of another witness to corroborate or support the testimony would be inadmissible. This objection was, therefore, over ruled.

387. The argument in support of this last objection and the irrelevant reference to the earlier ruling brings in bold relief uncounsel-like arrogance of Mr. D. M. Awan which has been discussed in detail while disposing of the petition of the principal accused dated 18-1-1978 for transfer of the case.

388. At this stage an objection by Mr. Ijaz Hussain Batalvi, the learned Special Public Prosecutor may be considered. He argued that a statement recorded under section 161, Cr. P. C. during the investigation of the occurrence at Islamabad cannot be used in this case. This objection was held to be without substance, since section 162 bars the use of a statement made under section 161, Cr. P. C. during the course of the investigation of the same case which is being tried except for the purpose of contradicting him in the manner provided by section 145, Evidence Act. There is no such bar regarding the statements made before a police officer by the same witness in the investigation of any other case which is not before the Court. Such a statement can, therefore, be used for the purpose of contradicting a witness under section 145, Cr. P. C. as well as for other purposes admissible to law.

389. P. W. 28, Ashiq Muhammad Lodhi stated that in January 1975, Abdul Hamid Bajwa called him and ordered him to give the description of the gunman of Ahmad Raza Kasuri, who accompanied him to the National Assembly Cafetaria and the Gallery. Mr. D. M. Awan raised an objection to the admissibility of this evidence on the ground that this was a matter subsequent to the occurrence in which a murderous attack was made on Ahmad Raza Kasuri resulting in the murder of his father. Mr. Ijaz Hussain Batalvi stated that this matter fell within the four-corners of section 7 of the Evidence Act. The matter was adjourned to enable the learned counsel to address arguments on the question.

390. Since there is a charge of conspiracy to murder Ahmad Raza Kasuri Mr. D. Awan argued that the said conspiracy culminated in the murder of Nawab Muhammad Ahmad Khan and as such any evidence relating to the period after the said murder was not relevant. He, however, conceded that if the charge had related to the second part of section 120-B, P. P. C. or if the challan had been of conspiracy simplicitor the evidence would have been relevant. Mr. Ijaz Hussain Batalvi drew our attention to charge No. 1, which relates to a conspiracy to commit murder of a particular person, namely Ahmad Raza Kasuri and not only to commit the murder of "a person". He argued that there was no culmination of the conspiracy. He referred to sections 5, 6 and 10 of the Evidence Act in support of the arguments. In reply, Mr. D. M. Awan submitted that the charge was about a conspiracy between the principal accused and Masood Mahmood P. W. 2, and not between the principal accused and Abdul Hamid Bajwa.

391. It is clear from the record that the conspiracy to which charge No. 1, relates, did not culminate with the death of Nawab Muhammad Ahmad Khan since it was a conspiracy to murder Ahmad Raza Kasuri. Any even subsequent to the murder in furtherance of the conspiracy would be relevant both under section 6 as well as section 10 of the Evidence Act. The facts sought to be proved are so connected with the charge of conspiracy (fact in issue) as to form part of the same transaction though the persons other than the actual conspirators may have participated in it. Such persons might have acted on the directions and orders of the actual conspirators. Moreover conspiracy may be proved by the surrounding circumstances or by the antecedent or subsequent conduct of the accused. Bhola Nath and others v. Emperor (A I R 1939 All. 567).

392. The prosecution case is that Ahmad Raza Kasuri had adopted certain measures for his safety. The evidence of P. W. 28 related to a survey of those measures obviously with the object of.. achieving the successful culmination of the conspiracy. Such acts cannot be held to be isolated acts or acts unconnected with the conspiracy.

393. Mr. D. M. Awan conceded that if the matter was covered by the second part of section 120-B, P. P. C. with which it is undoubtedly covered, the evidence would not be irrelevant. This is sufficient answer to his objection.

394. The learned Special Public Prosecutor wished to prove, on the 15th of December 1977, diaries in which the departure and arrival of P. W. 31, Ghulam Hussain, was recorded in the month of October 1974. Mr. D. M. Awan objected to this evidence on the ground that these diaries were not produced with the challan and as such their copies could not be supplied to the defence. Mr. M. A. Rahman, the learned Public Prosecutor, argued that this record was summoned by the defence itself. Moreover, it was filed with an application for necessary permission to prove it. In reply, Mr. D. M. Awan submitted that a document summoned by the defence can be used by it for the purpose of cross-examination of the witness but it cannot be availed of by the prosecution. When he was asked to show the legal bar and to distinguish between evidentiary value and admissibility of the document, he submitted that he had no objection to its admissibility. 394-A. After considering the arguments, particularly the provisions of section 265-C and section 265-F on which reliance was placed by Mr. D. M. Awan, we found that neither these sections nor any other law preclude the production of additional evidence or the proof by the prosecution of. document summoned by the defence. Such evidence can be allowed to be produced' finder section 540, Cr. P. C. It appears that for this reason Mr. Qurban Sadiq Ikram made it clear that he had no objection to the admission of these documents in evidence.

395. The reliance on Sections 265-C and 265-17 was misconceived. Section 265-F is not at all relevant while section 265-C provides only for providing to the defence copies of certain documents a week prior to the commencement of the trial. This section neither provides for a copy of the documents in question to be supplied to the defence nor places any limitation on the powers conferred upon the Court under section 540, Cr. P. C. to all additional evidence. The objection was, therefore, overruled.

396. Mr. D. M. Awan objected to the admissibility in evidence of a document which apparently was carbon copy of the original and bore the initials of one of the accused, namely Iftikhar. This objection was overruled and the document was exhibited as P. W. 31/3 and P. W. 31/4 on the evidence of P. W. 31 who proved that it was a carbon copy of the original and that the same was initialled in his presence by Iftikhar accused. The objection had to be overruled in view of the clear provisions of section 62 of the Evidence Act, the first portion of Explanation-2 of which clearly provides that where a number of documents are all made by one uniform process as in the case t of printing, lithography or photography, each is primary evidence of the contents of the rest. Clearly, where several copies are prepared by inserting carbon papers between different leaves, each copy is as much primary evidence as the first copy.

397. Some times a witness had to be allowed to make a statement about the contents of the documents either for clarification of ambiguities, if any, or for proper appreciation of the oral evidence. On such occasions Mr. D. M. Awan invariably objected to any reference to the contents of documents in view of the provisions of section 92, Evidence Act. This objection is without force since section 92 forbids evidence of oral agreement or statement for the purpose of contradicting, varying, adding to or subtracting from the terms of the document. This is subject to some provisos with which I am not concerned. There is, however, no bar to the recording of contents of proved documents in the statement of a witness. The Court can allow the contents of a proved r, document to be brought on the record for the sake of convenience.

398. Moreover, section 92 of the Evidence Act deals with a specific category of documents i.e. contract, grant or other disposition of property or any letter required by law to be reduced to the form of a document. The rule embodied in the section cannot be applied to document not included in this category. The objection is not tenable in law.

399. An objection was taken to the proof of unsigned reports enclosed with a signed covering letter. This objection cannot be sustained. There is evidence on the record that many a document e.g. secure reports were never signed. There is no law making it obligatory for each document to be signed! before it is admitted in evidence. It is a different matter that the factum of document being unsigned may affect its reliability but it cannot affect it admissibility in evidence. Moreover, the enclosures to signed documents we not produced to prove the correctness of what was contained therein. The were produced to prove the conduct or reaction of the witness or the accused. This objection is unsustainable.

400. Strangely enough an objection was taken even to the refreshing of memory by P. W. 3, although there are clear provisions in section 159 of the Evidence Act permitting a witness to refresh his memory.

401. An objection was also taken to a reference to a letter written by P. W. to the Chief Martial Law Administrator in which the witness "made clean breast of the misdeeds of F.S.F. conducted" by him "under the orders of Mr. Zulifiqar Ali Bhutto". Mr. D. M. Awan raised an objection that these are contents of a document which cannot be proved except by the production of that document. This objection could have force if the contents of the document had been material. It is not the object of the prosecution to prove the correctness of this assertion. Reference was made to the document to bring on record the circumstances which led to the confession of the witness with regard to the murder of the deceased. Attempt was made by Mr. D. M. Awan to prove a photostat copy but he was not allowed to do in the absent of, proof of any circumstance laid down in section 65 of the Evidence Act prior to leading secondary evidence. 402. . The learned Public Prosecutor objected to the admission in evidence of photostat copy as Exh. P. W. 3/16-D. The document was admitted in evidence subject to this objection since it was stated at that time that the original was not forthcoming. This objection must be upheld since no attempt was made by the principal accused to prove the loss of the original nor did he summon the original.

403. The fatal injuries received by Nawab Muhammad Ahmad Khan and his death as a consequence thereof is established by the evidence of his son Ahmad Raza Kasuri, P. W. 1, Dr. Muhammad Asif Chaudhury P. VJ. 6 and Dr. Sabir Ali P. W.

7. This evidence is supported by the out-patient card Exh. P. W. 6/1, Entry No. 24 (Exh. P. W. 6/2-A) at page 2 of the Emergency Room Register, Exh. P. W. 6,.'2, X-Rays Exh. P. W. 6/5 and Exh. P. W. 6/4, X-Ray Report Exh. P. W. 6/5, Death Certificate Exh. P. W. 6/6, Medico-legal Report Exh. P. W. 6/7 and post-mortem Examination Report Exh. P. W. 7/2. Nawab Muhammad Ahmad Khan was brought to the Emergency Room at 12-30 a.m. on the 11th November 1974, was admitted there at 1 a.m. and expired at 2-55 a.m. . the same day of bullet injury to the brain. One bullet and two thin metallic pieces were recovered by P. W. 7 during the post-mortem examination. P. W. 7 recovered the bullet from the right cerebral hemisphere in the middle and two thin metallic pieces from the margin of the wound which were handed over to the police vide memo. Exh. P. W. 7/6. According to the both Medical Experts, the injuries which were the result of the fire-arm were sufficient to cause death in the ordinary course of nature.

404. Some other witnesses, namely, Abdul Aziz P. W. 11, Asghar Khan P. W. 12, Abdul Wakil Khan P. W. 14 and Abdul Hayee Niazi P. W. 34 have also, in their depositions, referred to the injuries and death of Muhammad Ahmad Khan. 405: It is proved by the evidence of Ahmad Raza Kasuri P. W. 1, that while he, accompanied by his parents and aunt, was returning from a wedding in his self-driven car, after midnight on the night between 10th and 11th of November 1974, he was fired at by automatic weapons near ShadmanShah Jamal Round-about, Lahore. As a result of this attack his father received fatal injuries. This finds support from the evidence of Ghulam Hussain approver P. W. 31, who described the details of the time, place and' the manner of that attack. It is proved that the shots by sten-gun were fired by Arsbad Iqbal and Rana Iftikhar-Ahmad accused both of whom have confessed their role in this attack in their statements under section i64, Cr. P. C. Exh. p.W. 10/3-1 and Exh. P. W. 10/2-1 as well as their statements under section 342, Cr. P. C. The evidence of Ghulam Hussain approver in regard to the details abut the time, place and the manner of attack is corroborated fully by the evidence of P. W. 1 the bullet marks on the car (vide photographs Exh. P. W. 36/1, and Exh. P. W. 36/2, Exh. P. W. 36/3 and Exh. P. W. 36/4), the recovery of broken pieces of glass and blood of Nawab Muhammad Ahmad Khan from it vide memo. Exh. P. W. 1/6), the recovery by P. W. 34 of 24 empties bearing No. 661/71 which have been proved vide Exh. P. W. 24/1, Exh. P: W. 24,/3, Exh. P. W. 24/5 as well as Exh. P. W. 39/ 1 and Exh. P. W. 39/2 and Exh. P. W. 39/3) to have been supplied by the Central Ammunition Depot, Havelian, to the Headquarters of the Federal Security Force. The version about the place of occurrence given by the aforementioned approver is also corroborated by the site plan Exh. P. W. 34/2.

406. The statement of Ghulam Hussain approver that he made a reconnaissance of the locality (Shadman Colony) at about 8-00 a.m. on the 10th November 1974, prior to the attack, to trace out the car of Ahmad Raza Kasuri near the place where the wedding was being held, is corroborated by the statement of Muhammad Amir Driver P. W.

19. All the three confessing accused who had taken part in this reconnaissance admitted their presence in it.

407. It is further established by the evidence of Abdul . Wakil Khan P. W. 14, Saeed Ahmad Klan P. W. 3, and Fazal Ali P. W. 24, that the ammunition and weapons of this calibre 7.62 mm were in the use and possession of the Federal Security Force.

408. The supply of weapons (chinese sten-gun of 7.62 mm. bore used in this ' attack) to Ghulam Mustafa accused is corroborated by the statement of Amir Badshah Khan P. W. 20 who made the supply on the specific order of Mian Muhammad Abbas accused. It is further corroborated by Muhammad Amir Driver who took Ghulam Mustafa accused in his jeep to the office of Amir Badshah P. W. 20 and saw him bringing something wrapped in a cloth which appeared to be a weapon.

409. It is, therefore, proved that Nawab Muhammad Ahmad Khan died as a result of the murderous attack by Arshad lqbal and Rana Iftikhar Ahmad accused made under the supervision of Ghulam Hussain P. W. 31 near the Shah Jamal-Shadman Round-about, Lahore on the night between the 10th and 11th November 1974, with weapons of 7.62 mm. bore obtained by Ghulam Mustafa confessing accused from Amir Badshah Khan P. W. 20 for that purpose under order of Mian Muhammad Abbas accused.

410. Mian Muhammad Abbas has denied the presence o Ghulam Hussain at Lahore during the period from 31st October 1974, to the 12th of November 1974. His learned counsel relied upon - the T.-A. Bill of Ghulam Hussain Exh. P. W. 31/6 by which the travelling allowance was claimed by him for his visit to Karachi during this period as also for his visit to Peshaw4r from the 21st November 1974 to the 28th November 1974. Ghulam Hussaun P. W. 31, in his evidence has categorically stated that this document was fabricated under the orders of Mian Muhammad Abbas accused and he neither visited Karachi nor Peshawar during the period referred to in this document. M Similarly, he deposed that the entries Exh. P. W. 31/4 and Exh. P. W. 31/5 about his departure from Peshawar and return from there on the dates mentioned in the T. A. Bill (Exh. P. W. 31/6) were also fabricated.: He! referred to the entry Exh. P. W. 31/3 in the Roznamcha of Battalion No. 4 of the Federal Security Force. This entry proves departure of Iftikhar Abmad accused and P. W. 31 on 31-10-1976 for an undisclosed destination on special duty. P. W. 31 explained that this destination was not disclosed since he had to perform the secret mission of the murder of Ahmad Raza Kasuri at Lahore. He further stated that he left Lahore on the morning of the 12th November 1974, in the car of the Director-General (P. W. 2).

411. The statement that P. W. 31 travelled in the car of the Director General from Lahore to Rawalpindi on the morning of the 12th of November, 1974, is corroborated by the Driver' of the car, namely, Manzoor Ahmad P. W. 21, who had arrived from Multan a day before after the conclusion of the tour of P. W.

2. He stated that Ghulam Hussain travelled with him to Rawalpindi where they reached at about 2-00 p.m. on the 12th of November, 1974. The statement of Ghulam Hussain about his presence at Lahore on the 10th November, 1974, finds corroboration from the statement of Muhammad Amir P. W. 19 who had driven him in a jeep LEJ-7084, when he (P. W. 31) reconnoitred the place where the car of Ahmad Raza Kasuri was parked near the house where the marriage ceremony was going on.

412. In his cross-examination by Mr. Irshad Ahmad Qureshi, Ghulam Hussain stated that 2 or 3 days before the occurrence while he and his party were going towards Model Town in a jeep without number-plate he was checked by Abdul Wakil Khan D. I.-G. who on being informed by him about his designation of Inspector of F. S. F. had allowed him to proceed only aftct checking the information from Mr. Muhammad Irfan Mallhi, Director, F. S. F., Lahore. Abdul Wakil Khan P. W. 14 has corroborated this statement though he could not state the name of the person who had informed him that he was an Inspector in the F. S. F.

413. It appears that Mian Muhammad Abbas too is not serious about this objection since in his second written statement filed after the close of the defence evidence, he referred to the Roznamcha of Muhammad Yousaf, Head Constable in the Federal Security Force, brought by Abdul Khaliq D. W. 3 and the copies of two entries dated 25-10-1974 and 7.11-1974 made in it in order to show that P. W. 31 had obtained weapons directly from Muhammad Yousaf, Head Constable of Federal Security Force, Battalion No. 3 posted. at Lahore inter alia on the 7th of November, 1974. The entries have not been proved on record, but it is clear from this written statement that on the one hand the plea of Mian Muhammad Abbas is that Ghulam Hussain was not in Lahore from the 31st October, 1974 to the 12tb November, 1974 and on the other hand he pleads that he bad obtained r weapons at Lahore from Muhammad Yousaf, Head Constable on the 71hr of November, 1974. There is no doubt. left in my mind that Ghulam Hussain was not at Karachi during this period but was at Lahore.

414. The statement of Ghulam Hussain that the entries Exh. P. W. 31/ and Exh. P. W. 31/5 in the Roznamcha about his visit to Peshawar and the C T. A. Bill P. W. 31/6 were all fabricated is borne out and corroborated, further by both the oral and the documentary evidence. Ghulam Hussain stated that empties of 1500 cartridges received by him (vide road certificate Exh. P. W. 24/7) from Fazal Ali P. W. 24, were returned by him to the same witness on the 25th November, 1974 (vide road certificate Exh. P. W. 31/9). He also stated that he had gone to return the empties in the Armoury of F. S. F. Headquarters, Rawalpindi, three or four days earlier but Fazal Ali P. W. 24 refused to receive them since they were short by 51 empties including 3n rounds fired at Lahore and 7 rounds fired at Islamabad. He reported the matter to Mian Muhammad Abbas who asked him to return the same three or four days later. On the next meeting after 3 or 4 days, Mian Muhammad Abbas gave to him 51 empty cases of sten-gun ammunition. The deficiency )raving thus been made good he returned all the 1500 empty cases to Fazal Ali, P. W. 24 on the basis of road certificate Exh. P. W. 24/9 dated 25-11-1974. Fazal Ali corroborated P. W. 31 about his visit to him two or three days prior to 25th November, 1974 with spent ammunition and empties which were found short by 50 to 51 S. M. G. empties about his refusal to accept it and about the return of the entire spent ammunition in the morning of the 25th November, 1974. It is, therefore, proved from this evidence which is supported by documentary evidence Exh. P. W. 24/9 dated the 25th November, 1974, that Ghulam Hussain P. W. 31, was at Rawalpindi on the above date when according to the record Exhs. F. W. 31/4, P. W. 31/5 and P. W. 31/6 he should have been at Peshawar. The oral evidence proves that even two or three days prior to this date Ghulam Hussain was at Rawalpindi. This evidence oral and documentary establishes the contention of Ghulam Hussain that the entries in the Roznamcha Exh. P. W. 31; 4 and Exh. P. W . 31/5 were fabricated and so were the corresponding entries in the T. A. Bill Exh. P. W. 31/6. The T. A. Bill Exh. P.W. 31/6 was fabricated with the active connivance of Mian Muhammad Abbas who bad signed this document presumably in token of its correctness. The argument of the learned counsel for Wan Muhammad Abbas based on these fabricated documents is, therefore, without merit.

415. The murderous attack on Ahmad Raza Kasuri in Lahore which resulted in the death of his father was. Preceded by an incident of firing at Islamabad which is proved by Ahmad Rata Kasuri P. W. 1 and Ghulam Hussain approver P. W. 31, who had supervised the firing. Under instructions from Ghulam Hussain, Mulazim Hussain who was armed with a step-gun had fired in the air whereas he was supposed to fire at Ahmad Raza Kasuri who was then driving his car at an intersection while coming from the M. N. A. Hostel and going towards his residence at Islamabad. This statement is further corroborated by Nasir Nawaz, S. H. O., Police Station Islamabad P. W. 23, who recorded the statement of Ahmad Raza Kasuri Exh. P. W. 23/1 and registered F. I. R. No. 346 under section 307, P. P. C. on the basis of this statement on the 24th August, 1974. He also recovered five empties from the spot vide copy of the recovery Memo. Exh. P. W. 23/3, prepared a site-plan, copy of which is Exh. P. W. 23/2, and sent the empties in a sealed parcel to the Inspectorate of Armaments, General Headquarters, Rawalpindi, from where he obtained report Exh. E. W. 23/4 which proved the abovementioned empties to have been fired from Chinese weapons of 7.62 mm. calibre.

416. P. W. 31 obtained the sten-gun used in the firing from Fazal Ali P. W. 24 under orders of Mian Muhammad Abbas accused. This is fully corroborated by Fazal Ali.

417. It is proved from Exh. P. W. 23/4 that the ammunition used i the Islamabad incident was' of 7-62 mm. bore of Chinese weapon of the same calibre. Exh. P. W. 23/3, the recovery memo. of the empties, establish that these empties were engraved at their base with No. 661/71. Accordin to the evidence of Abdul Hayee Niazi P. W. 34, the 24 empties recovere by him from the spot in the Lahore incident were also engraved with simila numbers at their base. It is further proved by his evidence which i corroborated by Abdul Ikram P. W. 18 and Nadir Hussain Abidi, Ballistic Expert P. W. 36, that the 24 empties and a piece of metallic metal recovered by P. W. 34 were not sealed on the 11th November 1974. Nadir Hussain Abidi P. W. 36 gave an opinion that they were not fired from a G-3 rifle the calibre of which is also 7.62 mm. but he could not say what type of automatic weapon was used without detailed inspection and study of the relevant literature. It is clear from this evidence that the empties recovered by P. W. 34 were of the cartridges fired from automatic weapons. It is further implied in the statement particularly in his reference to G-3 rifle of 7.62 mm. calibre that he was convinced that the empties were of ammunition of the same calibre.

418. The Ballistic Expert P. W. 36 found the empties unsealed in the morning of 11th November, 1974. There is evidence that they were not sealed till 23rd of November, 1974.

419. P. W. 34 stated that Abdul Abad, D. S. P. of Circle Ichhra, Lahore took these unsealed empties and lead bullet during the night of the 11th November, 1974, to the residence of the Inspector-General of Police on the latter's instructions, in a service envelope. The same is the statement of Abdul Ikram P.W. 18, who corroborates P. W. 34 in this point.

420. Abdul Hayee Niazi further stated that Abdul Ahad did not bring the empties with him when he returned from the residence of the Inspector-General of Police in the night of 11th November, 1974, and on his inquiry Abdul Ahad informed him that they bad been kept by the Inspector-General of Police with him and that he would return them later. P. W. 34 further stated that Abdul Ahad left for Rawalpindi on the 13th November, 1974 and took the site plan Exh. P. W. 34/2 with him. He returned two or three days later and directed him to prepare the recovery memo. of the empty cartridges and the lead bullet from a draft which he (Abdul Ahad) showed to him. The draft was taken away after the witness bad prepared the recovery Memo. Exh. P. W. 34%

4. At that time P. W. 34- raised an objection before Abdul Ahad that the memo (Exh. P. W. 34/4) did not make any mention of the lead bullet and that the number of 24 empty cartridges given on this memo. was also different, in so far as 22 empties bore number BBI/71 while 2 contained No. 31/71. He also asked Abdul Ahad to give back to him the 24 empty cartridges but he put him off by promising to return them later. On further questioning Abdul Ahad informed him that it was an order which had to be complied with otherwise both of them would be in trouble. He also stated that the entry P. W. 16/1-1 about the recovery memo. Exh. P. W. 34/4 which purports to be dated 11th November, 1974 was made in Register No. 19 (Exh. P. W. 16/1) on the 17th November, 1977, after the return of Muhammad Bashir, A. S. I., Mobarrir Malkbana P. W. 16 from leave. He directed P. W. 16 that entry should be made in the handwriting of Abdul Ikram, Head Constable. On inquiry from Muhammad Basbir P. W. 16 about the parcel of the empty cartridges, which was not in the Malkhana, he promised that it would be given to him later. Abdul Ahad gave the 24 empty cartridges on the 23rd November, 1974, on which date they were sent to the Inspectorate of Armament.

421. This evidence finds support from the statement of Muhammad Bashir P. W. 16 who gave the same circumstances leading to the entry Exh P. W. 16/1-1 in Register No.

19. This was corroborated by Abdul lkram P. W.

18. Muhammad Bashir P. W. 16 corroborated P. W. 34 that Muhammad Sarwar A. S. 1. received the parcel of empties directly from P. W.

34. It is clear from his statement that Muhammad Sarwar asked Abdul Ikram, P. W. 18 to issue a road certificate for taking the parcel containing the empties to Rawalpindi. The fact that Abdul Hayee Niazi had given the parcel of empties directly to Muhammad Sarwar P. W. 17 on the 23rd November, 1974, is further corroborated by the latter's own evidence as well as the evidence of Abdul Ikram P. W. 18.

422. The parcels containing the blood and lead bullets with two metallic pieces were however with Muhammad Bashir P. W.

16. Their entry was also made on the 17th November, 1974 in the portion encircled as Exh. P. W. 16/1-1. P. W. 16 gave this parcel to Abdul Ikram on the 24th December, 1974, for issuing the road certificate. The parcel containing the lead bullet and 2 metallic pieces was taken by P. W. 17, who took it to, the Inspectorate of Armament on the 24th of December, 1974, on the basis of a road certificate entered in P. W. 16/1-2.

423. The fact that the empties remained unseated is also corroborated by the evidence of Abdul Wakil Khan P. W. 14 who stated that he gave incorrect information to Abdul Hamid Bajwa about the sealing of the empties in order to avoid any suggestion from him to tamper with them in order to exonerate the Federal Security Force. He later enquired from Abdul Ahad. D. S. P. if any result had been received from the Ballistic Expert to whom the empties were sent but he was surprised to hear from him that the empties had been taken away by Abdul Hamid Bajwa on the ground that the empties were required to be taken to the Prime Minister's House to be shown to the high officers and returned after two or three days.

424. From this evidence it is clearly established that the crime empties were not sealed up to the 23rd November, 1974, nor their recovery memo was prepared at the time of the recovery nor were they ever deposited i the Malkhana. It is further clear that the crime empties which were engraved R clearly with No. 661,/71 were changed with 22 empties on which the number could be read as BB 1 /71 anti on the rest two the number was 31;

71. It is true that Nadir Hussain Abidi P. W. 38 had read the number on the 221 empties as 661/71 but the change of the empties is established by the fact that while Abdul Hayee Niazi P. W, 34 had read this number on the bases of the crime empties as 661/71, the number of the empties as given in the recovery memo. Exh. P. W. 3414 is BB1/71 which implies that the person who prepared the draft of the recovery of empties read the number as such. The number on the bases of the present empties is not, therefore easily readable. This finds support from the evidence of P. W.

36. He stated that what is inscribed on the bases of 22 empties is No. 661/71 but this number can be read as BB1/71 by a person who has weak eye-sight and whoa does not examine them closely. Then two of the empties bear an absolute different number 31/71 which itself is a proof of the substitution of the crime empties by the empties P. 8 to P. 31.

425. Mian Qurban Sadiq Ikram criticised the statement of P. W. 34 on the ground that the statement made by him now was not made before the Tribunal. This argument overlooks the explanation given by the witness about the circumstances in which he made the statement before the Tribunal. There is no reason to disbelieve Abdul Hayee Niazi or any of the abovementioned witnesses since they have no animus against the accused nor any reason to favour the prosecution. The evidence of Abdul Hayee Niazi is corroborated almost on each point either by one or several witnesses from amongst P. Ws. 14, 16, 17, 18 and 36.

426. P. W. 36 very clearly stated that at the time of his examination of the empties in the police station on the 11th November, 1974, he found them unsealed. The same statement appears to have been made by him before the Tribunal and it is for this reason that Abdul Hayee Niazi P. W. 34 was confronted there with this statement of P. W.

36. This is clear from the following question put by the defence counsel and the answer given by P. W. 34: Q.-I put it to you that in this Court you stated that under the direction of the D. S. P. empty cartridges were shown to Mr. Abidi at. the Police Station while you stated before Mr. Justice Shafi-ur-Rahman on 25-12-1974 that 'it is also incorrect in the statement of the Director that the empties were shown to him there and they had not been sealed at the spot") A.-I made a statement to that effect but it had been made under some compulsion." This question and answer proves that P. W. 36 had made a similar statement before the Tribunal and that this was the correct statement.

427. Faced with this situation Mian Qurban Sadiq Ikram argued that it is quite possible that the empties might nave been sealed the same day. This argument is just conjectural and ignores the evidence of P. Ws. 14, 16, 17 and

18. In view of the considerable corroboration there appears to be no reason to doubt the correctness of the statement of Abdul Hayee Niazi P. W. 34.

428. It is established by the evidence of Fazal Ali P. W. 24 and the documents Exh. P. W. 34/1 read with Exh. P. W. 39/2 and Exh. P. W. 24/3 and Exh. P. W. 24/5 (which are the same as Exh. P. W. 38/3 and Exh. P. W. 38/2 respectively), that the cartridges of S. M. G/L. M. G. of V,2 mm. calibre bearing number 661/71 and cartridges of rifle bearing No. 31/71 were supplied by the Central Ammunition Depot, Havelian to the Headquarters of the Federal Security Force.

429. This evidence corroborates the statement of Ghulam Hussain P. W. 31 that the 24 empties recovered by P. W. 34 in the Lahore incident and the 5 empties recovered by P. W. 23 in the Islamabad incident vide Memo. No. P. W. 23/3 were part of the 1500 rounds issued by Fazal Al? P. W. 24 to Ghulam Hussain (P. W. 31) by Road Certificate Exh. P. W. 24/7. It does not require much imagination to safely conclude that the 22 empties bearing No. 661/71 and 2 bearing No. 31/71 which .have now been proved as Exhs. P. 8 to P. 31 also come from the consignment sent by C. A. D., Havelian to the Headquarters, F. S. F.

430. It is in the evidence of Fazal Ali P. W. 24 that the empties of the used cartridges are kept in the Armoury and after 40 to 50 boxes of the empties are collected there, they are sent to the Wah Factory. He stated that 8 to 10 days before Ghulam Hussain deposited 1,500 fired rounds (this approximately comes to 15th of November, 1974) Mian Muhammad Abbas accused inquired from him if he had fired cartridges in the Armoury. On his answer being in the affirmative, Mian Muhammad Abbas accused asked him to bring 25-30 fired cartridges of S. M. G./L. M. G. He returned to the Armoury and took 30 such empties to the said accused who ordered him to place them on the table saying that he would let him know when he was required to collect them. The accused sent for him again after 2J hours and directed him to take away the empties which on physical checking were found to be correct.

431. This evidence accords with the statement of Abdul Ahad, D. S. P. made to Abdul Wakii Khan P. W. 14 about the taking away of empties by Abdul Hamid Bajwa and their return two or three days later. This evidence, the circumstance of letting the crime empties remain unsealed and final the statement of Abdul Hayee Niazi P. W. 34 about the difference in the number engraved on the bases of empties recovered by him and the number of the empties recorded on the belatedly prepared recovery memo. Exh. P. W. 34/4 prove beyond a shadow of doubt that the crime empties recovered from the spot were substituted with empties Exhs. P. 8 to P. 31 and this substitution was effected by Mian Muhammad Abbas accused.

432. It has already been seen that Amir Badshah Khan P. W. 2 supplied the step-guns which were used in the Lahore incident under the direction of Mian Muhammad Abbas only on a chit which was given back to Ghulam Mustafa accused on the return of the weapons: Similarly Fazal Ali gave to Ghulam Hussain the step-guns used in the Islamabad incident on the direction of and threat from Mian Muhammad Abbas, on a chi 1 which was given back to Ghulam Hussain on the return of the weapons. P. W. 20 and P. W. 24 both were directed by Mian Muhammad Abbas no to make entries of the issue of these weapons in their registers. Thus both these witnesses corroborate the evidence of Ghulam Hussain P. W. 31 in material particulars regarding the supply of arms for launching an attack on Ahmad Raza Kasuri under the specific orders of Mian Muhammad Abbas.

433. Mian Qurban Sadiq Ikram argued that P. W. 20 has made the statement on account of his enmity with Mian Muhammad Abbas. He referred in support of the argument to inquiry report Exh. P. W. 20/1 and the admission by this witness that he had filed Service Writ Petition. He further argued that the statement of P. W. 24 regarding the delivery of arms to Ghulam Hussain P. W. 31 and the involvement of Mian Muhammad Abbas is an improvement on the statement made by him under section 161, Cr. P. C. (Exh. P. W. 39/9-D) and should not be given any credence.

434. Mr. Ijaz Hussain Batalvi, learned Special Public Prosecutor on the other hand argued that the report is really against Abdul Hamid, Deputy Director in which Amir Badshah Khan P. W. 20 appeared as a witness only. He referred to the statement of P. W. 20, who said that he was never given a copy of the report Exh. P. W. 20/1) nor was he served with a charge-sheet, rather he had tendered his resignation and had obtained his discharge in 1975 on account of ill-health. P. W. 20 admitted that he had filed a writ petition but he explained that it was filed on a claim of the salary for the post of Deputy Director since he had been paid his salary only for the post of Assistant Director.

435. It appears from Exh. P. W. 20/1-D that Mian Muhammad Abbas had visited Mandi Bahauddin under a directive of the Director General (P. W. 2) that the "atmosphere prevailing in Mandi Bahauddin Camp warrants pulling out the Deputy Director in charge of Battalion No. 3 and the Acting Deputy Director Battalion No. 15". The report shows that at the end a recommendation was made against Amir Badshah Khan also. There is, however, no evidence that any action was taken on the basis of this report or it had ever come to the knowledge of P. W.

20. Amir Badshah Khan P. W. 20 stated in his cross-examination that he retired from the service on the 16th October, 1975. He denied that he was removed from the job by Mian Muhammad Abbas or that in his place Zulfiqar was appointed or that Mian Muhammad Abbas made any observation against him. He stated that he had resigned from the job and presented his resignation to M. M. Hassan, Additional Director-General. Despite this line of cross-examination, Mian Qurban Sadiq lkram's only suggestion to P. W . 20 was that he had made the statement against the accused because he was threatened by the F. I. A. that he would be involved in this case as an accused person. P. W. 20, no doubt, denied this. A similar suggestion was put by Mr. D. M. Awan in his cross-examination that the witness had made a false statement because of the fear of Martial Law. But he replied that he was afraid only of God and had never been to the Martial Law Authorities.

436. A question was also put to P. W. 2 that Amir Badshah Khan had to quit the force on the report of Mian Muhammad Abbas accused but his answer was that his services were terminated since the Officer had outlived his utility.

437. It was suggested to P. W. 20 that the writ petition was filed since he was only an Assistant Director but he had started writing his designation as Acting Deputy Director to which Mian Muhammad Abbas had taken an objection. He denied this allegation and stated that he had filed a writ petition since he was not being paid the salary of the Deputy Director.

438. The suggestion that Mian Muhammad Abbas objected to. the writing by the witness of his designation as Acting Deputy Director is proved incorrect by Exh. P. W. 20/1-D in which he is referred to by the same designation. There is no evidence that the witness ever had any notice or knowledge of this report or any action was taken against him on its basis. On the other hand he is proved to have resigned his job.

439. There is, therefore, no justification for holding that the relations between Mian Muhammad Abbas and Amir Badshah Khan P. W. 20 were ever strained and that he had any motive to involve him in this case. He appeared to be a truthful witness whose testimony is corroborated to a certain extent by the statement of Muhammad Amir Driver P. W. 19 and finds further support in the confessional statement of Ghulam Mustafa accused.

440. As regards Fazal Ali, P. W. 24, the learned Special Public Prosecutor referred to the statement of Muhammad Boota P. W. 39 that he. recorded two statements of P. W. 24 under section 161, Cr. P. C. one of which pertained to the case under section 307 in regard to the Islamabad incident. He also made reference to the persistence with which P. W. 24 repeated that he had stated in his police statement what he had stated in Court. He therefore argued that the other statement recorded by Muhammad Boota P. W. 39 about the occurrence at Islamabad definitely contained what has been said in the statement in Court.

441. It is true that the statement made in Court regarding the directions of Mian Muhammad Abbas to give the required weapons to Ghulam Hussain P. W. 31 on a chit without recording the same in his register and the threats given by him in this connection do not find any mention in the statement under section 161, Cr. P. C., Exh. P. W. 39/9-D; but P. W. 24 positively stated that he bad given all the details of facts to the Investigating officer though he had not read his statement nor had he signed it. In answer to a question that he had made improvement upon his statement under section 161, Cr. P. C. to bring the present statement in line with the prosecution version and that he had done this dishonestly, he stated that he had already taken an oath before he started making a statement and had stated what had really happened. The statement of Muhammad Boota P. W. 39 is clearly explanatory of the omissions in Exh. P. W. 39/9-D which were put to P. W.

24. While proving the statement Exh. P. W. 39/9-D he stated that "so far as Fazal Ali's stand is concerned, I would like to point out that his statement was also recorded in a case under section 307, P. P. C. which was being investigated contemporaneously with the present case and a few things deposed by him which are incorporated in his statement in the other case were not reduced to writing in the present case . . . "307, P. P. C. case related to the attack on Ahmad Raza Kasuri at Islamabad".

442. This statement explains the above omission. According to the evidence of P. W. 24 and the Approver P. W. 31, the weapons were taken from P. W. 24 for being used in the Islamabad incident. It is, therefore, clear that the portion of the statement of Fazal Ali put to him as an omission was relevant for the case registered under section 307, P. P. C. as a consequence of murderous attack on Ahmad Raza Kasuri at Islamabad. The witness should have been confronted with that statement in order to prove such omission or improvement. There is, therefore, no reason to disbelieve the evidence of Fazal Ali.

443. Reference may also be made to the statement of Mian Muhammad Abbas that Ghulam Hussain was in direct contact with Masood Mahmud P. W. 2 and that he had been rewarded by him and also promoted as Inspector. This statement was made clearly to exonerate himself from the w criminal liability and further to show that Ghulam Hussain was in direct contact with Masood Mahmud who must have directly assigned to him the task of murdering Ahmad Raza Kasuri. The learned counsel for Mian Muhammad Abbas placed great reliance for this proposition upon the statement made by Ashiq Muhammad Lodhi P. W. 28.

444. The evidence on the record does not justify this conclusion. It appears clear from the statement of Ghulam Hussain P. W. 31, Amin Badshah Khan P. W. 20, Fazal Ali P. W. 24 that Mian Muhammad Abbas was supervising the operation against Ahmad Raza Kasuri and these witnesses were directly in contact with him. It is further clear from the evidence of Masood Mabmud that he did not even know Ghulam Hussain P. W.

31. Ghulam Hussain also stated clearly that he had appeared before Masood Mahmud along with other candidates on the 20th August, 1974 only at the time of his interview for promotion to the post of Inspector.

445. A suggestion was put to P. W. 2 that Ghulam Hussain was one of his favourite Officers but he denied the suggestion. A question was put to him that under his orders the Deputy Director had awarded to Ghulam Hussain a first class certificate and Rs. 5,000 as cash prize for efficient performance of his duties in the National Assembly. P. W. 2, however, stated that as a Director General he had to act on the notes put up before him but he did not have to see or know the person to whom the award or -certificate was given not did he remember whether any such award was given on 5-6-1974. On the other hand, Exh. D. W. 4/4 proves that Ghulam Hussain was promoted as Sub-Inspector on 15-1-1974 by Mian Muhammad Abbas and was also given by him an award of Rs. 75 with Commendation Y Certificate for running a Commando Course with great pain and efficiency (Vide order Exh. D. W. 4/5). In this state of evidence it is not possible to hold that Ghulam Hussain obtained orders directly about the mission to kill Ahmad Raza Kasuri from P. W. 2.

446. Ashiq Muhammad Lodhi P. W. 28 was produced by the prosecution to prove the report Exh. P. W. 22/1 submitted by him along with the covering letter Exb. P. W. 3/2-T to Abdul Hamid Bajwa on the latter's orders regarding the description of the gunman of Ahmad Raza Kasuri who accompanied him to the National Assembly Cafetaria and the gallery. In cross-examination by Mian Qurban Sadiq Ikram he stated that he was promoted by Haq Nawaz Tiwana as Assistant Director, Federal Security Force, on the 1st of April, 1974, and that this promotion was opposed by Mian Muhammad Abbas. He then stated that Ghulam Hussain Approver was posted on duty during the Ahmadia agitation outside the National Assembly. He was given a special award of Rs. 500 by the Director-General (P. W. 2) for his good work in June, 1974, in the National Assembly. Mr. Masood Mahmud did send for Ghulam Hussain through him once or twice and it was correct that at the end of July, 1974 he sent for Ghulam Hussain through him and the two were closetted together while the red light remained glowing. He also stated that Rana Iftikhar Ahmad accused was one of the gunmen attached to the Director General in those days. He stated that Mian Muhammad Abbas had told him in June, 1974, that be tendered his resignation which had not been accepted and this information was repeated by him in February, 1976.

447. The learned Special Public Prosecutor argued that this witness had made some uncalled for concessions which the Court can disbelieve. He cited Bagu v. The State (P L D 1972 S C 77) and Sikandar Shah v. The State (P L D 1965 Pesh. 134). In Sikandar Shah v. The State it was held that: "It is well settled that when such like formal witnesses make certain concessions in favour of the accused in their cross-examination, their statements cannot be considered to be of any credence, no matter, if they had been produced by the prosecution." This was approved by their Lordships of the Supreme Court in Bagu v. The State and it was observed that "the obliging concessions made by formal witnesses in cross-examination cannot be considered to be of any value".

448. I agree with the argument of the learned Special Public Prosecutor that the concessions made by P. W. 28 fall under this category. He was produced to prove only his report Exh. P. W. 28/1. By admitting that Mian Muhammad Abbas accused had opposed his promotion he plainly attempted to prove that he had no reason for having any soft corner for him. He thus laid the foundation for his concessions to be taken as true and then ' agreed with the suggestion of the learned counsel for Mian Muhammad Abbas that Ghulam Hussain was sent for by P. W. 2 through him once or twice in the end of July, 1974, and that he remained closetted with him in his room while the red light was glowing on the door.

449. Ghulam Hussain, as stated above, admitted having an interview with P. W. 2 on the 20th July, 1974. Mian Q urban Sadiq 1kram also argued that obviously Ghulam Hussain was sent for through Ashiq Muhammad Lodhi P. W. 28 and remained closetted with P. W. 2 on this very date. But it is clearly established in the evidence of P. W. 31 that that was the date on which he was promoted as Inspector. He stated that other candidates were also interviewed along with him. If the interview was for the purpose of promoting him, it is not conceivable that he would be sent for through P. W.

28. No suggestion was made to Masood Mahmud about the exclusive interview or about the glowing of the red light on the door during the interview nor was Ghulam Hussain cross-examined about having been called for the interview tbrough P. W.

28. It was suggested to him that he was summoned for interview through a letter but he stated that he had appeared in response to a wireless message by Mian Muhammad Abbas. I cannot prefer the evidence of P. W. 28 over the natural statement of P. W. 31.

450. Even otherwise this evidence is not sufficient to impeach the credit of Ghulam Hussain in regard to his evidence about the role played by Mian Muhammad Abbas which in its material particulars has been corroborated by the independent witnesses like P. W. 20 and P. W. 24.

451. It is clear from the record that Mian Muhammad Abbas who instigated and goaded Ghulam Hussain to kill Ahmad Raza Kasuri and helped him in obtaining the arms both for the attack in Islambad as well as in Lahore had no motive of his own to commit the offence. P. W. 31 and the three confessing accused either bad no such motive. The evidence establishes that this motive was on the part of the principal accused.

452. The evidence of motive is furnished by the testimony of P. W. 1, A P. W. 2 and P. W. 3 and the same is corroborated by the documentary evidence produced by P. W. 1 and P. W. 22.

453. It is established from the evidence that relations between Ahmad Raza Kasuri P. W. 1 and the principal accused though cordial before 1970. became strained from the beginning of 1971 on account of acute difference of views on political matters and the former's opinion about the latter being power hungry and ambitious. In fact Ahmad Raza Kasuri held the view that the ambition of the principal accused was to attain power even if the country was broken and its East Wing was lost to it. In his statement he made a pointed reference to the failure of the principal accused to secure an agreement with Sh. Mojeeb-ur-Rehman on the point of sharing power and the threats given by his party would not participate in the National Assembly meeting at Dacca scheduled to be held in March, 1971, that the legs of any person going to Dacca would be broken and that such a person would be going on a single fare. He referred to a demand made by the said accused at public meeting held at Nishter Park, Karachi for separate transfer of power in each Wing of Pakistan to the majority party of that Wing by saying "Idhar Ham Udhar Tum". It is proved by this evidence that Ahmad Raza Kasuri became a strong and virulent critic of the principal accused and offered provocation to him day in and day out. This is corroborated by documentary evidence.

454. Exh. P. W. I/9, is the official report of the debates, held in the National Assembly on the draft of the Constitution of 1973. It reproduces the speech made on that occasion by Ahmad Raza Kasuri P. W. I as a Member of the Opposition. He deplored that the Parliament of half of Pakistan was meeting in the absence of 167 members from East Pakistan. He queried why the Members from East Pakistan were not present and then furnished the answer that they were not present here because the leader of the minority party, bad decided to overthrow the majority party. He used such epithets about the principal accused as a leader obsessed with power, a leader who destroyed this country for the sake of power". He said that "it was that leader who on the 14th February, 1971, in Peshawar said that the P. P. P. would not be attending the forthcoming sessions of the National Assembly" because they would be treated as "double hostages". He continued that "again, the same leader on the 28th of February, 1971, in Lahore said that whosoever would go to Dacca, his 'legs would be broken' and whosoever would be going to Dacca, he would be going on a 'single fare'."

455. He also referred to the speech of 14th March, 1971, made in Karachi in which the principal accused is said to have uttered the formula "Idhar Ham Udhar Turn" and thus demanded separate transfer of power in West Pakistan when he failed to secure an agreement with Sh. Majeeb-ur-Rehman, on the point of sharing power, and said : "It was not my fault if the majority party leader was not prepared to share power. It was not the fault of the people of Punjab if the majority party leader was not prepared to share power. It was not the fault of the toiling teeming millions of Pakistanis if the majority leader was not prepared to share power, but then why my country suffered, why my country was made to face the humiliation? It was done by no other man except one who was obsessed with power, and the history will catch that man, history will bring him to the bar of public opinion and that man will have to answer. He will not go scot-free."

456. He also criticised the concept of equating the stability of the country with a strong centre and defined "strong centre" as meaning "self-centre". He referred to Machiavelli and how Hitler became a dictator through a "terrorised Parliament" and compared the conditions of the country to the conditions in Hitler's Germany. He said that witch-hunting was going on in Pakistan similar to the witch-hunting which took place after the burning of the German Parliament of which victims were Ch. Zahur Elahi and Maulana Tufail Muhammad who had already been detained. He warned that anybody who wanted to follow Hitler, must read the Rise and the Fall of the Third Reich because the fall was terrible. He referred to the detention of General Agha Muhammad Yahya Khan, who had been declared as a usurper in Asma Jilani's case and said "is it a house arrest or is it a protection to the traitor from the people of Pakistan? He criticised the elimination of the word "East Pakistan" from the definition of Pakistan. This, according to him, was an indirect way to try to give recognition to Bangla Desh. Referring to the coining of the phrase "New Pakistan" he said: "I don't believe in the term 'New Pakistan'. I only believe in Quaid-eAzam's Pakistan. For me there is only one Pakistan and that is Quaid-e-Azam's Pakistan what 'New Pakistan'? Because you should be the Quaid-i-Awam of a new Pakistan. This is not good. Don't think that only you are the oracle of the wisdom. Don't think that only you know the politics. There are much brighter people on the other side of the fence also who can understand every gesture of yours, who can give meaning to your every antics. Now it is being said that Himalaya will weep. If the Pakistan Army is purposely to be defeated by the Indian Arm, then of course Himalaya will weep." This speech continued on the 20th February, 1973 as is clear from the official report of the debates of the National Assembly Exh. P. W. 1/8. While dealing with the fundamental rights guaranteeing protection and privacy of home, he stated that " . . our telephones are being taped. Our talk is being checked. We are being chased by the C. I. D. agencies, and in this particular Assembly you will find in the lobbies and in the Cafeteria .less visitors. more C. I. D. people. Now is this right of privacy being given to us? There are particular gadgets which are being fixed on our telephones through which, even if the telephone is just lying, they can hear our talks in their cost intelligence headquarters." He said that the regime was talking of Roti, Kapta and Makan and although the Country's economy is virtually "in shambles and the country is dying of poverty, Jashans were being held in Larkana and Bahawalpur. After citing Lord Acton "that power corrupts and absolute power corrupts absolutely" he stated "if a dishonest man becomes a Prime Minister in this country, surely under these powers he can ruin the country and can become virtually the 'civilian dictator'. He hit mercilessly at the provisions in the draft Constitution for Vote of No-Confidence on the Prime Minister by 2/3rd majority and said "He wants this particular Article to be inserted in the body of the Constitution for fifteen years in order to continue in office. This is their argument, a very convenient argument, a very excellent argument. This is an argument for their own personal interests. A man invariably cannot go beyond 15 years in power. So this particular argument is not for the stability of the country but for the stability of the man because he can expect to be in power for 15 years. If the country's stability is needed, then we must create stable institutions. You cannot give stability to a country by giving protection to the personalities." At another place he said that the principal accused had become the strongest Dictator in the world and will be so powerful that he will not go out of the House as a living person. He opposed the provision about giving commission in the Armed Forces of Pakistan in the name of the Prime Minister (and not in the name of the Head of the State). He said that this was being done to make it the Army of the Prime Minister. Regarding Chief Election Commissioner he said that he should be appointed on the recommendation of the Chief Justice of Pakistan because in this Country there had been the traditions of rigged elections.

457. Exh. P. W. 1/10 contains the speech of Ahmad Raza Kasuri P. W. 1 on the draft bill of the F. S. F. He stated that "For instance, if I spell out, one of the charges of duty of this special force is to quell disturbances. Sir, to check the smuggling, to stop the highway robbery. But, Sir, the people of Pakistan feel that the charter of duty which is assigned to them by the special Law is to disturb the public meetings, to commit the political murders, to plant bombs into the places of the political leaders, to fire at their houses, to abduct their children. These are the duties which have been assigned to this force. This force has been established to create terror in the minds of the opponents of the regime. This force has been created to check the process of democracy in Pakistan. This process has been created to dislodge the opponents of the Government."

458. That such speeches and immediate reaction is proved by Exh. an official report or the Assembly dated 26th May, 1973 which contains the Privilege Motion moved by P. W. 1 in regard to a telephonic call received by him on the 7th March, 1973 from Iftikhar Ahmad Tari, Minister of Works and Communications, Government of the Punjab, in which he used threatening language that he would be meeting the same fate as that of late Kh. Mohammad Rafique, if he did not stop criticising their regime and its policies forthwith. The witness re-counted in this Privilege Motion, the history of at least 9 earlier attacks made upon him by the P. P. P. workers from 2nd May, 1971 to the 20th December, 1972. The document also proves that this Privilege Motion was ruled out of order with the observation by the Speaker that the purpose of the mover (P. W. 1) was served by the Motion being placed on the record.

459. The episode of the 3rd June, 1971, deposed to by Ahmad Raza Kasuri, is corroborated by the official reports of the National Assembly dated the 3rd June, 1974. It proves that on the pointing out of P. W. 1 that nine persons had not signed the Constitution, the principal accused said: "You keep quiet. I have had enough of you; absolute poison. I will not tolerate your nuisance." Then followed an exchange of hot words. The principal accused once again said "I have had enough of this man. Who does he think of himself?"

460. A Privilege Motion (Exh. P. W. 22/3) was moved by P. W. 1, on the 4th June, 1974, in order to bring forth the reaction of this altercation with the principal accused. He stated in the Motion that he had been receiving threatening calls of dire consequences on this altercation and some Goondas had also visited the Government Hostel and tried to find out his whereabouts. This, according to the Privilege Motion, was a gross breach of Privilege of Freedom of Expression of Members of the Elected Bodies.

461. It appears clear from the Official Report of the Debates of National Assembly dated the 4th June, 1974, that this Privilege Motion was to be taken at No. 2 in the Agenda regarding Privilege Motions. The Speaker, however, announced in the presence and despite the protest of P. W. 1, that it would be taken up later. It was taken last on that date and was ordered to be filed oh account of his absence.

462. It is proved by the evidence of P. W. 3 that a file in respect of Ahmad Raza Kasuri was opened by him in the month of December, 1973 under the orders of the principal accused since he had become very bitter and critical and, in fact, virulent against the said accused. Orders were, therefore, issued that he should be kept under strict surveilance. As a result of this directive, his telephone was taped by the Intelligence Bureau and his movements were checked by the Provincial Special Branches.

463. This evidence of P. W. 3 finds corroboration from Exh. P. W. 3/1-A, with which was enclosed a secure report about a telephone talk of P. W. 1 with a lady and the note Exh. P. W. 3/1-A given by the principal accused on it on the lath December, 1973. This note reads as follows : "This is very interesting .but who is the 'lady'. Surely, if we were efficient, we would know by now: What is the use of half-baked information coming to us with the taping of telephone which requires no effort., It is effort we want _ _ Similar are the secure reports about the taping of telephone Exhs. P. W. 3/1-B, P. W. 3/1-C and P. W. 3/1-D. Exh. P. W. 3/1-C bears a remark by the principal accused (Exh. P. W. 3/1-C/1) : "How stupid can you get ?" Similarly, Exh. P. W. 3/1-D bears the signature of the principal accused (Exh. P. W. 3/ 1-D/ 1) in token of his having seen it.

464. This evidence, oral as well as documentary, proves the parliamentary but strong attacks by Ahmad Raza Kasuri, P. W. 1 on the principal accused and his reaction as well as the reaction of his followers. It appear., from the statement of Masood Mahmud that orders had already been passed by the princial accused and communicated by him to Mian Muhammad Abba L through Haq Nawaz Tiwana. After the altercation in the National Assembly t on the 3rd of June, 1974, he made Masood Mahmud (P. W. 2) responsible for execution of the order already given to Mian Muhammad Abbas and to direct the latter to produce the dead body of Ahmad Raza Kasuri or his body bandaged all over. The motive to kill Ahmad Raza Kasuri is proved to be on the part of the principal accused.

465. Mian Qurban Sadiq lkram argued that in order to prove the motive it was necessary for the prosecution to establish by evidence the truthfulness of the allegation levelled by P. W. I against the principal accused in his speeches before the National Assembly as well as in his statement in Court. He particularly referred to the two speeches made in the month of February and March 1971 and one statement given in February of the same year from which Ahmad Raza Kasuri concluded that the principal accused was power-hungry and was after securing power even at the cost of dismemberment of Pakistan.

466. I do not agree with this argument. The proof of the allegations is not relevant to this case. What is relevant is the virulence and poignancy of the criticism of Ahmad Raza Kasuri. If the allegations are incorrect they 1f would give much more provocation to the accused than would accrue to him if they be correct. Even if they were correct, the principal accused would not have liked this chapter of his politics to be revealed to the public at large and to be called a person responsible for the dismemberment of the country. The argument is thus repelled.

467. According to P. W. 2 he protested against this order but the principal. accused said that he would have no nonsense from him or from Mian Muhammad Abbas and said to him "You don't want Vaqar chasing you again" The witness further continued that he repeated the orders of the principal accused to Mian Muhammad Abbas accused who was the least disturbed and he asked him not to worry about it. The said accused promised that the orders of the Prime Minister would be duly executed because he had already been reminded of this operation by his predecessor more than once."

468. This statement is corroborated by Saeed Ahmad Khan P. W. 3, who stated that in the middle of 1974, in one of his usual interviews with the principal accused, after all subjects had been discussed, he (the said accused) abruptly asked him whether he knew Ahmad Raza. He replied that he did not know him personally. On this the principal accused said that he ha 'G given some assignment to Masood Mahmud P. W. 2 about Ahmad Raza Kasuri and asked him to remind him. On his return to his office he (P. W. 3G passed the message to P. W. 2 on the green telephone in the same words Y. W. 2 said in answer "alright". This evidence of P. W. 3 also corroborate the evidence of P. W. 2 that the principal accused kept on reminding an goading him through Sated Ahmad Khan (P. W. 3) and Bajwa for the execution of the order.

469. The evidence of Masood Mahmud P. W. 2 which is corroborate by independent evidence of P. W. 3 is sufficient proof of the directive of the principal accused to Masood Mahmud P. W. 2 to get executed the order of assassination of Ahmad Raza Kasuri through Mian Muhammad Abbas . It also proves that Masood Mahmud after a mild protest which was followed by threats from the principal accused agreed, to the execution of the order.

470. Mian Qurban Sadiq Ikram argued that this evidence falls short of the proof of agreement as envisaged in the definition of "conspiracy" in section 120-A, P. P. C. He argued that the emphasis in this definition is on an agreement, but the same is not proved in this case. He relied upon paragraphs Nos. 58 and

60. Volume 11, of the Halsbury's Laws of England, (Fourth Edition).

471. The relevant portion in para. 58 is :- "The essence of the offence of conspiracy is the fact of combination by agreement, express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursue the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other." Paragraph No. 63 says that wens rea is an essential ingredient of conspiracy.

472. Clearly, therefore, the agreement is a consensus to do that which is illegal. It can be express or implied, or in part express and in part implied and can be proved from facts and circumstances which taken together apparently indicate that they are part of some complete whole. It is an offence which is complete as soon as an agreement is made and it is immaterial whether an agreement was ever carried out.

473. Conspiracy is an offence in which actus reus (guilty act) is complete the moment there is an agreement. It is not essential that the agreement should have been reached in one or several sittings or that an express agreement should be proved. The agreement can be implied by subsequent conduct, by acts done, by anything said and/or written by any one of such persons. In Punjab Singh-Ujagar Singh v. Emperor (A I R 1933 Lah. 977) it was held that though the essence of the offence of criminal conspiracy is agreement between two or more persons to commit an offence or do any of the acts mentioned in section 120-A in the matters described therein, the finding of criminality in such cases is a matter of inference deduced from the acts of persons done in pursuance of an apparent criminal purpose in common between them. Same is the ratio decidendi in Benoyendra Chandra Pandey v. En peror (A 'i R 1936 Cal. 73), Gotake Behan Tako! and others v. Emperor (A I R 1938 Col. 31) and Kesha6deo Baghat v. Emperor (A 1 R 1941 Cal. 93).

474. It was held in Amir-ud-Din v. State (P L W 1967 Lab, 1190) that an agreement as refer to in section 120-A, P. P. C. is to be inferred from the facts and circumstance of each case. The offence of conspiracy by its very nature is secretive and surreptitious, and if a rule of evidence is laid down to the effect that an agreement as referred to in section 120-A, P. P. C. is to be positively proved, the proof o conspiracy would become impossible. It is very seldom that there is direct evidence available with regard to conspiracy. It is a matter of inference from the sequence of circumstances and if an inference from circumstances can legitimately be drawn that privity between the persons concerned existed to commit an offence or to achieve an object by unlawful means, the offence of conspiracy will be said to have been proved.

475. The principle relied upon by Mian Qurban Sadiq Ikram does not at all help the principal accused or Mian Muhammad Abbas. The protest made by P. W. 2 in regard to the execution of the illegal order is immaterial in the face of the evidence that P. W. 2 communicated the order to Mian Muhammad Abbas. He also indicated his assent to P. W. 3 on his communicating to him the pressing demand of the principal accused for the execution of the offence. There is considerable evidence of subsequent facts which proves that Masood Mahmud was a party to the completion of the agreement to commit the illegal act. The argument is without force.

476. The conspiracy in the present case became complete as soon as Masood Mahmud P. W. 2 agreed to and did convey the unlawful order of the principal accused to Mian Muhammad Abbas. The next significant development of this conspiracy was the order of the principal accused to P. W. 2 to take care of Ahmad Raza Kasuri P. W. 1 on his visit to Quetta. P. W. 2 gave directions to M. R. Welch P. W. 4 to get rid of Ahmad R1 Kasuri P. W.

1. This part of the statement of P. W. 2 is not only corroborated by M. R. Welch P. W. 4 in his testimony before the Court but it find further corroboration from the documentary evidence on the record.

477. On the 14th September 1974, P. W. 4 submitted a secure report Exh. P. W. 2/1 to P. H'. 2 by his designation in which he informed him about the arrival of Ahmad Raza Kasuri and others at Quetta by P. I. A. on the 13th September 1974. There is a reference in this report to Retired Air Marshal Asghar Khan of Tehrik-e-Istaqlal and several others and the speeches made by Ahmad Raza Kasuri and Retired Air Marshal Asghar Khan, what is important to note in this document is the information which pertained to Ahmad Raza Kasuri only (out of the whole of the party) that he was not residing in the room reserved for him in Imdad Hotel, This document does not contain such information about any other person.

478. Another report (vide office copy Exh. P. W. 4/1) bearing No. 9681 was sent by P. W. 4 to P. W. 2 by name on the l8th September 1974, In which the departure of Abroad Raxa Kasuri and one Feroze Islam from Quetta for Lahore on the 18th September 1974, at 11-30 a.m. by P. I. A. was reported. The departure of Retired Air Marshal Asghar Khan and some others for Rawalpindi on the 17th September 1974, was also reported. It was stated that throughout his stay at Quetta the Party was protected by at least 20 persons. These persons were exceptionally cautious and the persons wishing to see the visitors were usually searched by the persons detailed for their security. The time of their movements was never disclosed and they spent little or no time in the hotel room reserved for them. It is also stated that a source who had infiltrated into their ranks on a false claim of being a relative of Sattar Khan of Mardan was detected when Sattar Khan himself arrived at Quetta and was removed from the inner circle. A photostat copy of the original report document (Exh. P. W. 2/Z) bears an endorsement dated the 21st September 1974, by P. W. 2 to Mian Muhammad Abbas to discuss and return this document after seeing it.

479. Mian Muhammad Abbas wrote a letter Exh. P. W. 2/2 on 25tb September 1974 to M. R. Welch P. W. 4 with reference to the intelligence report dated the 14th September 1974 (Exh. P. W. 211) enquiring from him "If Ahmad Raza Kasuri did not stay at Imdad Hotel which was reserved for him, where else did he stay during his sojourn at Quetta?" This query was answered by M. R. Welch P. W. 4 on the 17th November K 1974 by letter Exh. P. W. 2/3 which states that the gentleman in question _Y had reserved a particular room in the Imdad Hotel but seldom stayed in that room during the night. He occupied some other room reserved for members of the Party in the Hotel.

480. The documentary evidence therefore shows that although there was evidence of the stay of several persons belonging to the party of Ahmad Raza Kasuri P. W. 1 in Imdad Hotel, but the report Exh. P. W. 211 and the query of Mian Muhammad Abbas accused (Exh. P. W. 2/2) were confined to the dwelling place of Ahmad Raza Kasuri P. W.

1. It is clear in this context that report Exh. P. W. 4/1 about the arrangements of the security of the Party of Ahmad Raza Kasuri is a device to submit a report that he was well-protected. This was explained by M. R. Welch P. W. 4 who stated, that since he had no intention of committing the heinous murder he had to find a plausible excuse for not executing the order of P. W. 2 and he took refuge in the fact that Ahmad Raza Kasuri was well-protected.

481. The learned counsel for Mian Muhammad Abbas argued that the words "Ahmad Raza Kasuri should be taken care of" used by Welch P. W. 4 in his statement, are not borne out by the evidence of Masood Mahmud. This is not correct because Masood Mahmud used the expressions "to be got rid of" or "to take care of".

482. Alternatively, the learned counsel argued that the words "to take care of" could not necessarily mean "assassination." It might be a case of looking after the security of Ahmad Raza Kasuri, an MNA, since there were disturbances m Baluchistan in those days and there were bomb-blasts there on the visit of the principal accused.

483. This argument is without force in view of the explanation by Welch P. W, 4 that "get rid of" meant elimination or assassination. T hl M argument cannot also be reconciled with the subsequent perturbed state i M which P. W. 2 and Mian Muhammad Abbas accused found themselves on the receipt of intelligence report Exh. P. W. 2/1 and Exh. P. W. 2/Z (which is the same as Exh. P. W. 4/1) and the inquiry made by Mian Muhammad Abbas accused by Exh. P. W. 2/2 about the stay of Ahmad Raza P. W. 1 at a place other than the one reserved for him. In fact, the query Exh. P. 2/2 appears clearly to have been put with the object of making a probe why Welch P. W. 4 could not execute the order at Quetta. It is proof of the collaboration of Mian Muhammad Abbas in the conspiracy.

484. The incident at Islamabad also lends full support to the evidence of conspiracy. This incident was in aid of the execution of the unlawful ac for which the conspiracy was hatched. The statement of P. 1X, 31 about 1 this incident has been corroborated by Fazal Ali P. W. 24 who supplied the weapons used in this incident under orders of and threats by Mian Muhammad Abbas, the site plan of the occurrence Exh. P. W. 23/2, the recovery of five empties from the spot bearing No. 661/71. by Recovery Memo. Exh. P. W. 23/3 and the report of the Ballistic Expert. Exh. P. W. 23/4 that the empties were of 7.62 mm. calibre originating from China. P. W. 31 has stated clearly that the rounds fired in the Islamabad incident were a part of the cartridges issued to him on the road certificate Exh. P. W. 24/7. The statement of Fazal Ali and the documents Exh. P. W. 24/1 read with Exh. P. W. 39/2 connects these empties with the rounds supplied by the C. A. , Havelian to the Armoury at the Headquarters of the Federal Security Force.

485. The learned counsel for Mian Muhammad Abbas urged in his argument that there is no evidence that the Islamabad incident was engineered by the Federal Security Force. This. argument is without merit in view of the evidence referred to above.

486. He also argued that in case the shots were fired by Mulazim Hussain from the back window of the jeep, the empties could not have been ejected on the road. This argument ignores the statement of P. W. 31 in cross-examination of Mr. Irshad Ahmad Qureshi, Advocate that an "empty is always ejected front a sten-gun in such a way that it is thrown outside towards road and in front of the muzzle. Normally an empty would fall in the jeep when a sten-gun is fired from a jeep if in the course of being ejected it hits some other object and its progress is thus altered." It is clear from this statement that the possibility of these empties falling inside the jeep could arise only if in the course of being ejected they had hit some other object and their course had thus been altered.

487. It is in the evidence of P. W. 31 that he was reprimanded by Mian Muhammad Abbas accused for his failure in carrying out the mission of assassination of Ahmad Raza Kasuri P. W. I despite his being a Commando having jeep and automatic weapons at his disposal and despite the attack having been launched from a distance of 30 yards only in broad day light. Mian Muhammad Abbas told him that the principal accused was very angry and directed him to remain on the job and give no time to Ahmad Raza Kasuri to collect his wits. He also directed him to return the weapons to Fazal Ali. He advised him to obtain arms from the nearest Battalion as and when he was able to locate P. W.

1. Under orders of Mian Muhammad Abbas he sent Zabeer and Liaquat to go to Lahore in search of Ahmad Raza Kasuri. He was himself sent for by Mian Muhammad Abbas a day before Bid in October 1974 and admonished that he was staying at Rawalpindi while his men (Zahter and Liaquat) were enjoying holidays, He also warned him that the principal accused was against him. Under the directions of Mian Muhammad Abbas, P. W. 31 left immediately for Lahore where he stayed for ten days and thereafter returned to Rawalpindi after finding out the whereabouts of Ahmad Raza Kasuri.

488. The evidence of P. W. 31 regarding the return of the weapons issued to him for the Islamabad incident under orders of Mian Muhammad Abbas accused is corroborated by P. W.

24. Similarly his visit to Lahore is supported by the entries of departure for Lahore on the 16th of October 1974, and his arrival at Rawalpindi on the 26th of October 1974, Exh. P. W. 31/1 and Exh. P. W. 31/2 respectively. It is clear from these documents that he had come to Lahore on a special duty.

489. The evidence of P. W. 31 about the Lahore occurrence is supported in material particulars, (i) about the supply of arms under the orders of Mian Muhammad Abbas by Amir Badshah Khan, P. W. 20, (ii) about his being checked while going in a jeep without number-plate by Sardar Muhammad Abdul Wakil Khan, P. W. 14, (iii) about reconnaissance of the wedding place in Shadman Colony to find out the car of Ahmad Raza P. W. I by P. W. 19, (iv) about his departure on the 12th November 1974 for Rawalpindi by Manzoor Hussain P. W. 21 and (v) about his absence from Rawalpindi from the 31st October 1974 onwards, by Exh. P. W. 31/6, the story about attack on the car of Ahmad Raza Kasuri on the night between l0th and 1ltb of November 1974, by automatic weapons belonging to the Federal Security Force is corroborated by the site plan Exh. P. W. 34/2, the recovery of empties bearing the same number as the empties of the Islamabad incident, i.e. 661/71, by P. W. 34, the finding implied in the evidence of Nadir Hussain Abidi P. W. 36 about their calibre being 7.62 mm. and the evidence of P. W. 14 and P. W. 3 about the knowledge that the weapons of this calibre were in the use of the Federal Security Force.

490. The substitution of the crime empties so recovered by empties P. 8 P to P. 31 is proved conclusively by the evidence of Abdul Hayee Niazi P. W. 34, Abdul Ikram P W. 18, Muhammad Bashir P. W. 16 and Fazal Ali P. W. 24, 22 of these empties which have now been proved bear No. 661/71 and 2 bear No. 31/71. It is established by Exh. P. W. 24/1 read with Exh. P. W. 39/2 and the document Exh. P. W. 24/3 read with Exh. P. W. 38/1 and Exh. P. W. 38/3, that these empties also emanate from the stock of the Armoury at the Headquarters of the Federal Security Force and are part of the ammunition supplied by the C. A. D., Havelian to this Armoury.

491. The prosecution bas led considerable evidence to prove the subsequent conduct of the principal accused and his Officers in the uncalled for and illegal tampering with the evidence and investigation of the case. The fact that the empties were not sealed initially, were not kept in the Malkhana of the police station and were allowed to be substituted is proved beyond any shadow of doubt by the evidence of P. W. 34, P. W. 36, P. W. 14, P. W. 16, P. W. 18 and P. W.

24. This story proves the tampering of evidence by Abdul Hamid Bajwa and Mien Muhammad Abbas.

492. It is in the evidence of Asghar Khan P. W. 12 that Abdul l4amid 9qjwa was at Lahore on the 11th November 1974 and he participated in the meeting held that day at the residence of the Inspector General of Police. He also bald meetings later with P. We. 12 and

14. The presence of Abdul Ramid Bajwa at Lahore is corroborated by his T. A. Hill, Exh. P. W. 3/S which proves that he remained at Lahore from 8th November 1974 to13th November 1974, and during this period he made only a few hours' visit to Samundari on the 12th November 1974. He was again in Lahore from the 16th November 1974 to 20th November 1974. In fact his T. A. Bills Exh. P. W. 3/5, Exh. P. W. 3/6, Exb. P. W. 3/7, Exh. P. W. 3/8, Exh. P. W. 3/9 and Exh. P. W. 3/10 prove his frequent visits to Lahore during the months of November and December 1974 and January and February 1975. This is corroborative of his unusual and illegal interest in the investigation of this case.

493. I have already referred to the evidence that P. W. 34 did not seal. the empties recovered from the spot on a specific direction by Abdul Ahad D. S. P. Abdul Ahad had given this direction on the ground that the name o the Prime Minister had been mentioned in the F. I. R. There is documentary evidence of direct liaison between Abdul Ahad and Abdul Hamid Bajwa. Exh. P. W. 3/2-A is a note of Abdul Ahad dated 22nd November 1974, with Q which was enclosed the copy of the F.

1. R. It bears the comment o Exh. P. W. 3/2-A/1 of Abdul Hamid Bajwa which means that the note o Abdul Ahad was meant for him. Abdul Hamid Bajwa in his comment referred to the desire of the Chief Security Officer of the Prime Ministe (P. W. 3) to see the F.

1. R. After referring to the time of occurrence (12-30 a.m.) and the time of the registration of the case on the statement o Ahmad Raza Kasuri (after 3-00 a.m.). he wrote: "What prevented them to register case immediately it was known that attempt to murder was made. This statement would have formed part of the case diary in that case and not in the F. I. R." This note is followed by the note Exh. P. W. 3/2-B written by Saeed Ahmad Khan on the 24th November 1974, and sent to the Secretary to the Prime Minister. The note records that the F.

1. R. had been sealed yet a good deal of publicity had been given to it. He concluded by saying that R such an incident involving firing in the heart of the town, not far away from the police station could have been detected immediately, by the police. and the case registered suo motu by it. This note bears an endorsement o the principal accused (Exh. P. W. 3/2-B/1): "I agree with you." 493-A. These two documents prove that Abdul Hamid Bajwa w perturbed over the registration of the case on a first information report given by Ahmad Raza Kasuri since it named the principal accused. He sugge ted in his note that this could have been obviated by registration of the case by the police sun motu and by making the statement of Ahmad Raza Kasuri P. W. 1 as a part of the case diary. The same suggestion was given by Abdul Hamid Bajwa to P. W. 12 and P. W. 14 also. These documents corroborate the evidence of these witnesses on this point. These documents further show that the principal accused as well as P. W. 3 agreed to this suggestion.

494. It is in evidence of P. W. 3 that the principal accused took serious exception to his remaining at Rawalpindi when his name was being taken before a judicial inquiry being held at Lahore by my learned brother Shaft-sir-Rehman, J. in the murder case of Muhammad Ahmad Khan and he directed him to proceed to Lahore immediately and meet the Advocate- s General, the Chief Secretary, the I.-G. of Police and the Investigating Officer and look into the case. P. W. 3 arrived in Lahore and had a meeting with the above mentioned officers. He found that nothing worthwhile had been done in the investigation of the case. He also came to know about the calibre of the bullets used for the offence which indicated the use of Chinese weapons which were in the official use of the Federal Security Force. He, however, noticed the helplessness of the local police who were deliberately avoiding to make the investigation on this line.

495. It was decided in the meeting that Malik Muhammad Waris of the C. I. A. who had been entrusted with the investigation, should go to Rawalpindi and seek further instructions from him. Malik Muhammad Waris P. W. 15 and Abdul Ahad, therefore, saw him at Rawalpindi on the 14th January 1975. The principal accused had already laid down the guiding principles for the investigation and had directed him to find out from the Joint Army Detection Organization about the availability of such arms in the country and also to write to the Defence Secretary to find out which Army Units were using the Chinese weapons officially. He had also directed him to make inquiries from Bara, regarding availability of these arms. These directions were given because the principal accused was keeping the F. S. F. out of the investigation. The principal accused had further talked to him about the family disputes of Ahmad Raza Kasuri, P. W. 1, the local political rivalries and previous litigation in the family and directed him to help the Investigating Officers in collecting all the evidence on these lines and to see that this material was produced before the Tribunal.

496. P. W. 3 stated that on the visit of Malik Muhammad Waris P. W. 15 and Sh. Abdul Ahad to him on the 14th January 1975, he rang up the Officer-in-Charge of J. A. D. O. and informed him that he was sending Malik Muhammad Waris to him in order to find out whether the Chinese weapons in question were available elsewhere. He asked him to give his report in writing. It was in these circumstances that the report Exh. P. W. 3/3-B was brought to him.

497. He directed Malik Muhammad Waris P. W. 15 to find out if such weapons were available at Bara, and further directed him to collect material regarding the family disputes, political rivalries with Ahmad Raza Kasuri and his family.

498. This evidence is corroborated not only by Malik Muhammad Waris P. W. 15 but also, though partly, by the report of the J. A. D. O. (Exh. P. W. 3/3-B) which refers to the visit by the Investigating Officer to the Directorate General I. S. I., in connection with this case and states that such arms and ammunition were available in Darrah Adam Khel as well as from the underground elements in the settled Districts. Exh. P. W. 3/3-A, a letter dated 17th January 1975. written by P. W.3 to the Defence Secretary, proves that the report of J. A. D. O. Exh. P. W. 3/3-B was already with him (P. W. 3) because he sent a copy of this report to the Defence Secretary. In this letter P. W. 3 requested the Defence Secretary to clarify which Army Units used this calibre of weapons. The Defence Secretary answered by letter Exh. P. W. 3/3-C that the Chinese arms of this calibre which were issued to Army Units in West Pakistan had almost been withdrawn from all units and were being held only by the Federal Security Force, Frontier Corps Units and the Army Corps Tank Crews. 499. - P. W. 3 further stated that on receiving the above report of the Defence Secretary, he was perplexed because it was mentioned that the Chinese arms were in the use of the Federal Security Force while he had been given positive instructions by the principal accused to keep the Federal Security Force out. He, therefore, had no other alternative but to go back to the principal accused. In his meeting with him he showed the said letter of the Defence Secretary and enquired as to whether it should be produce before the Tribunal. On this, the principal accused got infuriated and asked T him whether he had been sent to safeguard his interest or to incriminate him He also said that this letter would not be produced before the Tribunal.

500. This portion of the statement has been corroborated by the fact that the original D. O. Letter Exh. P. W. 3/3-C has remained throughout in the file Exh. P. W. 3/3 and has been proved on this record from that file.

501. According to tile evidence of P. W. 3. the fri`vestigating Officer, Malik Muhammad Waris, carried on the investigation in accordance with the directions given to him and collected some material regarding the family disputes, political rivalries etc. of Ahmad Raza Kasuri and his family. Malik Muhammad Waris as P. W. 15 supported him in this respect.

502. Although this exercise in fishing for local disputes and political rivalries was to change the venue of investigation in order to exonerate the real culprits, yet it is important to note that despite concentrating all his efforts in conducting the investigation on the: lines directed by Saeed Ahmad Khan, P. W. 3, Malik Muhammad Wars completely failed to make any headway. The investigation about the alleged disputes with the local persona and about the distribution of family property led to no worthwhile results. lie found that the disputes of Ahmad Raza Kasuri with Yadoob Maan's party had already come to close.

503. The learned counsel for Mian Muhammad Abbas accused argued vehemently that the evidence of Ahmad Raza Kasuri P. W. 1 itself reveals that he was attacked by Yaqoob Maan's and Toot's Party several times. This evidence, therefore, is compatible with the possibility of 1'. W. 1 having been attacked by the same party.

504. This argument i< without force for the simple reason that if such was the case there was no reason why P. W. 15 might not have brought those culprits to book in order to free the principal accused from the blame of this attack. It is, therefore, proved beyond any shadow of doubt that the guidelines given by the principal accused to Saeed Ahmad Khan and communicated by him to P. W. 15 were not correct and were not given for the purpose of helping the discovery of the actual culprits. The purpose of these guidelines and direction was only to lead the Investigating Officer astray.

505. This conclusion is supported by the helplessness pleaded by P. W. 15 as well as P. %V. 12 in carrying on investigation according to their own views. P. W. 12 stated in answer to a cross-examination question by Mr. D. M. Awan that investigation of blind murder cases was always started on the basis of motive but the present case could not be investigated on those lines despite the fact that the motive in the F. I. R. was clearly mentioned by P. W. 1 since he or his subordinates were not in a position to interrogate the Prime Minister (the. principal accused). He also made a statement about the pressure brought upon him in connection with the investigation of the case by Saeed Ahmad Khan, P. W. 3, Abdul Hamid Bajwa and Rao Abdul Rashid. He stated that even Mr. D. M. Awan, learned counsel for the defence joined these persons in this connection. Malik Muhammad Waris complained that he was not allowed to conduct the investigation freely and he did not join any employee of the Federal Security Force in the investigation of this case. 506. 1 am in complete agreement with the statement of Asghar Khan P. W. 12 that to start with, the Investigating Officer should have had access to the principal accused in order to interrogate him since his name was recorded in the F. I. R. In view of the evidence about the use of Chinese weapons of 7.62 mm. calibre which were in the use of the Federal Security Force, the Investigating Officer ought to have taken his investigation into the ranks of that force but the efforts of the principal accused and his Officers, namely, Abdul Hamid Bajwa and Saeed Ahmad Khan P. W. 3, were to keep the Federal Security Force as well as the principal accused out of the reach of the Investigating Officer. This nominal investigation ultimately ended in a report Exh. P. W. 35/4, a memo dated 27th September, 1975, by the Inspector-General of Police to the Home Secretary recommending the filing of this case as untraced.

507. Exhibit P. W. 3/3-D is a note by Saeed Ahmad Khan, to the DirectorGeneral of Information and Broadcasting Division, proposing that publicity might be given to the statements of S. S. P., Lahore (P. W. 3) and Malik Muhammad Waris, D. S. P. (P. W. 15) made by them before the Inquiry Tribunal on the 29th January, 1975, in the inquiry into the murder case of Nawab Muhammad Ahmad Khan. The portions to be given publicity were L side-lined. It is proved from the signature of the principal accused, Exh. P. W. 3/3-E on this note that he approved the suggestion. These statements were given publicity in the newspapers on the 30th February, 1975 (vide Exh. P. W. 3/3-F which is initialled by P. W. 3 at Exh. P. W. 3/3-G and by Abdul Hamid Bajwa at Exh. P. W. 3/3-H). Despite the publicity given` to a portion of the inquiry proceedings, the principal accused did not agree to the publication of the inquiry report of the Tribunal.

508. This inquiry report was sent by the Tribunal by covering letter Exh. P. W. 35/1 dated the 26th February, 1975, on which there is an endorsement (Exh. P. W. 35/1-A) by the Chief Secretary Punjab that : "Secy. to the C. M. may kindly see and bring the matter to C. M's. notice." The Chief Secretary wrote a separate note Exh. P. W. 35/2 on the noting part of the file that he had discussed the report with Saeed Ahmad Khan P. W. 3 and the latter had suggested that the report may be sent for information to the Prime Minister (the principal accused) and a copy of it may be sent to him. He also suggested that a copy may be sent to the Inspector-General of Police for taking necessary action, for obtaining explanation from the Investigating Officers against whom aspersions had been made and for implementing the directions of the Tribunal. Lastly, it was suggested by him that : "C. M. may kindly consider asking for P. M's. advice whether this document is to be made public." Then follows the note of Shahid Hameed, Secretary to the Chief Minister. Punjab (Exh. P. W. 35/2-A) dated the 7th March, 1975, that the Chief Minister had seen the above note and had written a letter to the Prime 'Minister. He lead also desired that another copy may be sent to Saeed Ahmad Khan P. W. 3 and yet another copy to the Inspector-General of Police. The Chief Minister had sought advice whether or not the report of the Tribunal should be made public.

509. According to the statement of P. W. 3, he put up a note Exh. P. W. 3/3-1 to the effect that the Tribunal had criticised the lapses in the investigation at the initial stages but seemed to have been satisfied with the investigation carried on later by the D. S. P., C. I. A. Lahore. He recommended publication of the relevant portion of the report. The document fully supports his statement. The principal accused made a note (Exh. P. W. 3/3-J) on this document that he would decide after seeing the report. This matter was, therefore kept pending. Later he received letter Exh. P. W. 3/3-K; dated the 8th March, 1975, from the Chief Secretary, Punjab, with which was enclosed a copy of the Tribunal's report "as desired by the Chief Minister". This letter also referred to the discussion with P. W. 3 on this case on his last visit to Lahore. P. W. 3 wrote a note Exh. P. W. 3/3-L, on the body of this letter on the 14th March, 1975, directing for preparation of a draft which could be recommended for publication. P. W. 3 stated that on receipt of the D. O. letter from Mr. Muhammad Haneef Ramay, Chief Minister (copy of which has been proved a (Exh. P. W. 35/3), the principal accused marked it to him (P. W. 3) with the remarks "What was the point of discussing it with you ? Please discuss." He met the Prime Minister who told him that the report should not publicised as it was adverse and that he should have nothing to do with the case any more. Since the original D. O. letter of Mr. Muhammad Haneef Ramay to the principal accused is not available, the prosecution proved the latter's aforesaid remarks by an entry made in the challan form Exh. P. W. 27/2. In order to prove that these remarks were communicated to and received by P. W. 3 the Peon Book Exh. P. W. 3/4 containing entry of despatch of the letter containing the remarks (Exh. P. W. 3/4-A has been proved.

510. These documents further corroborate the evidence about the undue interference in the investigation of the case and the interest of the principal accused in publicising what he considered to be in his interest and to withhold FY the publication of what he considered to be against him. It throws lurid light w on the interest of the principal accused in misdirecting the investigation as well as in directing the publicity pertaining to the case.

511. Reports Exhs. P. W. 3/2-K, P. W. 3/2-L, P. W. 3/2-N, P. W. 3/2-O P. W. 3/2-Q are the intelligence reports of Abdul Hameed Bajwa while Exh. P. W. 3/2-M is an intelligence report of Saeed Ahmad Khan which prove the surveilance by Abdul Hamid Bajwa as well as P. W. 3 on the lactivities of Ahmad Raza Kasuri which were continued even after the death of his father.

512. Exh. P. W. 3/2-K dated the 28th November, 1975, states that Ahmad Raza Kasuri was trying to win sympathies of the police by saying that the Government had made no arrangement for providing them the food while on duty. It further states that Ahmad Raza Kasuri claimed that four persons had been deputed to kill him, that they had fired with automatic weapons while hiding near Shadman Round-about, that his friends had collected some empties from the spot, and that a message was passed from Lahore to Rawalpindi after "the mission was complete." The report also refers to the condolence by Lt. General Niazi and the opinion of Senior Army Officers that the assailants were armed with heavy calibre automatic weapons not availa'61c with private persons. It further states that Ahmad Raza Kasuri who had 40 relatives in the Army would not sit idle till they traced out and, dealt with the culprits. It further refers to the threat by Lt. General Niazi that the murder would be avenged. It concludes by the remarks that Ahmad Raza Kasuri was harsh to Muhammad Haneef Ramay for the latter's statement that the murder was due to his enmity in Kasur and party faction in Tehrik-e-Istaqlal.

513. On the 29th November, 1974, Ahmad Raza Kasuri P. W. 1 filed a Privilege Motion Exh. P. W. 1 /7 in which he made reference to numerous attacks on him by the P. P. P. Workers, the threat by the principal accused in the Assembly on the 3rd June, 1974, the attack on him on the 24th August, 1974 to eliminate an "absolute poison", the incident at Lahore resulting in the death of his old father and that no investigation had been made in the case despite the recovery of bullet empties. He made a demand that the principal accused should resign and submit himself to the process of law since he had been mentioned in the F. I. R.

514. Another Privilege Motion Exh. P. W. 22/6 was tabled a day earlier on the 28th November, 1974, by another Member of the National Assembly, namely, Ch. Zahoor Elahi.

515. Both the Privilege Motions were considered together on the 2nd December, 1974, vide proceedings of the National Assembly of that day Exh. P. W. 22/7, and were ruled out of order by the Speaker on the 3rd December, 1974. This ruling is printed on pages 135 to 137 of the Official Reports of the Debates of the National Assembly of Pakistan Exh. P. W. 22/8.

516. Saeed Ahmad Khan, P. W. 3 attached a copy of the Privilege Motion Exh. P. W. 1/7 to his note Exh. P. W. 3/2-M which bears the signature of the principal accused in token of his having seen it. It appears from the note that the Privilege Motion was not brought on the record of the proceedings of the National Assembly. P. W. 3 commented in the note that the privilege motion contained a pack of lies and remarked that its copies had been distributed by Abmad Raza Kasuri and his henchmen to foreign Embassies and to Foreign Journalists including Chinese News Agency. It concludes with the report that Ahmad Raza Kasuri was in a desperate state and had been heard saying that he will take revenge of the murder of his father personally.

517. It appears from the ruling of the Speaker on the Privilege Motions of Ahmad Raza Kasuri and Ch. Zahur Elahi Exh. P. W. 1/7 and Exh. P. W. 22/6 that the Speaker had expunged certain remarks of Ahmad Raza Kasuri from the record. In his report Exh. P. W. 3/2-N dated the 8th December, 1974, which bears the signature of the principal accused, Abdul Hamid Bajwa reproduced a talk between Ahmad Raza Kasuri,and a friend in which Ahmad Raza Kasuri had stated that : "He had said at the Floor of the House that Mr. Bhutto is the murderer of his father and he should be brought before the Court of law", but "it was expunged by that bloody dishonest man-Speaker . . . . He also complained that the statements of Ch. Zahoor Elahi and Mian Mahmood Ali Kasuri also had spoken on this issue, were not published in the newspapers.

518. The report Exh. P. W. 3/2-L submitted on the 29th November, 1975, the date on which the Privilege Motion Exh. P. W. I!7 was moved is a revealing document. It states that Ahmad Raza Kasuri had employed some persons from N.W. F. P. as his personal gunmen and as guards at his residence and he would request for the favour of police guard if asked by the Speaker or some other Cabinet Minister for any help. He would also request that Army Intelligence should investigate into the murder case of his father and he might project this demand through Party or some M. N. A. in the National Assembly. The report continues that the father of Ahmad Raza Kasuri was a holder of fire-arms licence for a gun and for a prohibited bore revolver. Ahmad Raza' Kasuri was thinking of depositing these weapons with the Speaker and requesting him to help him in getting a licence for himself so that he could retain those weapons as souvenire. The report concludes with the following sentence : "He is being conveyed through a contact that such arms have to be deposited with Police or Arms Dealers, under the orders of the District Magistrate."

519. It is clear from this document that special emphasis was lard in the report on the ways in which Ahmad Raza Kasuri had taken steps for his security by keeping personal gunmen as well as guards at his residence, and by requesting the Speaker to help him in ,securing the licence for the arms left by his deceased father, but Abdul Hamid Bajwa had-engaged the services of some 'contact' to advise Ahmad Raza Kasuri to deposit these arms with the police or Arms Dealers.

520. Exh. P. W. 3/2-Q is the report dated the 9th December, 1974, by Abdul Hamid Bajwa (and signed by the principal accused), conveying the satisfaction of Ahmad Raza Kasuri on the appointment of the Tribunal to inquire into this case. It is a reproduction of the talk between him and his brother Sher Ali regarding a scheme for violating section 144, Cr. P. C. by collecting 300 to 400 guns for confrontation with F. S. F. and the Police. The report makes a particular reference to an advice of Sher Ali to Ahmad Raza Kasuri P. W. 1 to get licence for a carbine from Mr. Qayyum and the promise made by Ahmad Raza Kasuri to abide by this.

521. There is the evidence of Ashiq Muhammad Lodhi, P. W. 28 about report Exh. P. W. 28/1 which he submitted to Abdul Hamid Bajwa with covering letter Exh. P. W. 3/2-T dated 10-1-1975 conveying to him on his demand, the description of the gunman of Ahmad Raza Kasuri who accompanied him to the National Assembly.

522. These documents particularly Exh. P. W. 3/2-L, Exh. P. W. 3/2-Q and secure report Exh. P. W. 28/1 prove that Abdul Hamid Bajwa continued, with the consent of :he principal accused, his witch-hunting against Ahmad Raza Kasuri even after the Lahore occurrence and left no stone unturned to drive a wedge in the security measures taken by the latter to effect a break through obviously in order to facilitate the completion of the Z performance of the conspiracy.' There could be no other object of collecting information about the security measures taken by Ahmad Raza Kasurr and about the description of his gunman. Similarly there could be no other motivation for gathering information about his intention to obtain arms licence or for dissuading him through a contact for keeping the weapons off his father. 522-A. Mr. Qurban Sadiq Ikram urged that such reports are usually collected by the Intelligence about persons pursuing a political career. But he could not give any motive for collecting reports about measures of security adopted by Ahmad Raza Kasuri and the description of his gunman or for infiltrating contacts to dissuade him from keeping the arms of his father. The argument is not sound.

523. It appears from the evidence that after experiencing frustration upon frustration in the performance of the conspiracy efforts started for bringing Ahmad Raza Kasuri to the fold of the People's Party. P. W. 3 gave the background of how he was made to rejoin the PPP. He stated that somewhere in the middle of 1975 when there was rift growing between Ahmad Raza Kasuri and Retired Air Marshal Asghar Khan, he was instructed by the principal accused to win over Ahmad Raza Kasuri and bring him back to the Pakistan People's Party's fold. He told him that he did not know Ahmad Raza Kasuri but he would ask Abdul Hamid Bajwa to initiate the matter. The principal accused, however, told him that Abdul 4amid Bajwa had already been instructed in this matter.

524. P. W. 3 had meetings with Ahmad Raza Kasuri. In the first meeting he advised him to consider rejoining the People's Party as he claimed to be a founder Member. On this Ahmad Raza Kasuri blurted out, how could he rejoin the Party of which the Chairman was the principal accused who was responsible for the murder of his father and was after his life. The witness prevailed upon him by resort to threat as well as persuation that being a marked man it was in his own interest to rejoin the Party. Ahmad Raza Kasuri took time to think over and ultimately consented to the course proposed to him. 535_ Exh. P. W. 3/2-C is report by Abdul Hamid Bajwa bearing the signature of the principal accused about Ahmad Raza Kasuri's intention to establish a forward block in Tehrik-e-Istaqlal. It shows he was thinking of forming an independent political party at that time.

536. Exh. P. W. 3/2-D dated the 4tb June, 1975, is a report by Saeed Ahmad Khan about the criticism by Ahmad Raza Kasuri of Air Marshal Asghar Khan. It states that arrangements were in hand to widen the gulf between Air Marshal Asghar Khan and Ahmad Raza Kasuri through other sources also.

537. Exh. P. W. 3/2-E is another report of Saeed Abinad Khan P. W. 3 about his meetings with Ahmad Raza Kasuri, about his views that he had realised that his future lay with the Pakistan People's Party of which he claimed to be a founder Member and about his request for audience with the Prime Minister (accused) at his convenience.

538. Exh. P. W. 3/2-F, Exh. P. W. 3/2-H, Exh. P. W. 3/2-1 and Exh. P. W. 3/2-J are reports which prove the process how by holding various meetings with Ahmad Raza Kasuri, Saeed Ahmad Khan P. W. 3 and Abdul Hamid Bajwa chiselled "his rough edges" and sobered him.

539. The statement of P. W. 3 about how and in what circumstances Ahmad Raza Kasuri was made to rejoin the People's Party is corroborated by the documents which show Inter alia that the officers of the Prime Minister's staff attempted to widen the gulf between Ahmad Raza Kasuri, and Air Marshal Asghar Khan and they held a number of meetings with him to achieve the object of bringing him back to the party. The evidence of P. W. 3 read along with these documents would show that when Ahmad Raza Kasuri was compelled to feel that all avenues of help, the police and the assembly combined, bad been foreclosed to him and he was in constant B danger to his life, attempts were initiated for making him to rejoin the Pakistan People's Party "in his own interests" and these efforts ultimately' succeeded. The evidence is fully supported by the statement of Ahmad Raza Kasuri himself. The defence is not benefited by P. W. 1 rejoining Pakistan People's Party.

540. The conspiracy to murder Ahmad Raza Kasuri is thus further proved not only by what transpired at Quetta as well as the incidents at Islamabad and Lahore but also by the subsequent conduct of the principal . accused, P. W. 3 and Abdul Hamid Bajwa in misdirecting the investigation thus rendering it impossible for the actual culprits to be detected, in c continuing the witch-hunting against Ahmad Raza Kasuri by taking special C precautions and steps that he should be kept unarmed and unprotected and ultimately after being frustrated in achieving the object of conspiracy, in prevailing upon him to let bygones be bygones, condone what had happened and join the Pakistan People's Party.

541. The learned counsel for Mian Muhammad Abbas criticised the evidence of Masood Mahmud and Saeed Ahmad Khan only on the ground that they had made some improvements in their earlier statements. He pointed out certain omissions. I have already dealt with this question and found that these omissions are more or less omissions of details or omissions of matters which have been brought on record by the Public Prosecutor by putting specific questions. There are no inconsistencies or contradictions between their earlier statements and the statements before the Court.

542. It is clear . from the record that neither Masood Mahmud P. W. 2 nor Saeed Ahmad Khan P. W. 3 have any motive to involve any of the accused falsely. Masood Mahmud could not have any motive since his father and the deceased were great friends: Moreover it is the principal accused's own case as brought out by suggestions in cross-examination that he 'had been given a post of utmost importance and was given concessions which are not afforded to other Government servants similarly placed. He was allowed to stay in Deluxe Hotels during his tours. He was sent to visit foreign countries and enjoyed such visits by staying in costly hotels. His wife was also allowed] to visit foreign countries at Government expense and the Government bore considerable expenses on his medical treatment outside the country and, even on his purchase of spectacles fitted with a hearing aid. These' questions were put to him when he dubbed the principal accused and Waqar Ahmad, Establishment Secretary as his enemies in the sense that he was used for illegal purposes. The reason suggested to P. W. 2 by the learned counsel for the principal accused and to P. W. 3 by both the counsel was that false statements were made by them on being pressurised from the Martial Law Authorities. But they denied this. It is, therefore, established that they have no motive of their own to involve the principal accused falsely. There is similarly no personal motive on the part of Mian Muhammad Abbas and the confessing accused to commit the offence. s

543. The suggestion about the pressure from Martial Law Authorities has been put to most of the witnesses but I am convinced that no such pressure was brought. - On the other hand most of the witnesses have been corroborated in what they stated, by. documentary evidence and sometimes by oral evidence.

544. The learned counsel for Mian Muhammad Abbas argued that the relations between Masood Mahmud and Mian Muhammad Abbas have been strained. Nothing is farther from the truth. There is not evidence about this except bare suggestions in cross-examination. They said accused summoned three witnesses to prove this, but ultimately gave them up.

545. It is on the other hand clear from the documentary evidence] that during the years 1974, 1975 and 1976 Masood Mahmud had been giving extremely good Confidential Annual Reports in favour of Mian Muhammad Abbas (Exh. D. W. 4/1, Exh. D. W. 4;/2 and Exh. D. W. 4/3). Mian Muhammad Abbas was only an Acting Director when Masood Mahmud took over, but it was on his recommendation that he was promoted to the post of Director in Grade 19 (Exh. D. W. 4/6). He was also awarded honorarium amounting to Rs. 700 for the performance of work of special merit .vide D. W. 4/9, which proves that he was held` in great esteem by P. W.

2. P. W. 2 also went to see him in the Hospital when he was ill. All these documents prove that the relations between Mian Muhammad Abbas and the P. W. 2 had throughout been cordial.

546. It was urged that Mian Muhammad Abbas had twice tendered his resignation, but the same was not accepted by P. W. 2, This is denied by the P. W.

2. It, is strange to note that these resignations Exh. P. W. 2/ 12-D and P. W. 2/12.D have been produced by the accused from his own custody. They bear no indication that they were ever submitted to the Director-General or any Officer in the office. No reliance can, therefore, be placed upon these documents. Even if it is conceded that these resignations were not accepted by Masood Mahmud, it will only prove that Masood Mahmud did not want to lose the service of Mian Muhammad Abbas, accused, for whom he had the highest regard: 547, The learned counsel ultimately referred to a statement of Mian Muhammad Abbas accused (Exh. D. W. 1/1) made by him on the 21st of July, 1977 before some Inquiry Committee, appointed by the Martial Law Authorities. 1n this `statement the said accused has only thrown light on the .misdeeds of the Federal Security Force and has corroborated the statement of P. W. 1 and P. W. ?. about the manner in which this force was used by the principal accused. It, however, proves that P. W. 2 had always been taking Mian Muhammad Abbas in confidence. Though the statement is mostly self-exculpatory and incriminating against P. W. 2 but it does not prove that the relations between the two were in any manner strained. It rather proves otherwise.

548. It was suggested that it was on account of this statement that Masood Mahmud has involved Mian Muhammad Abbas. There is no justification for these arguments since there is no proof that this statement had ever been brought to the knowledge of P. W. 2.

549. A suggestion was put to Welch P. W. 4 that in an inquiry against Mustafa Jan, Deputy Director, Mian Muhammad Abbas had made a report attributing lack of control to him (P. W, 4). This apparently surprised the witness and he stated that it was the first time he was hearing about such a report. P. W. 4 is an independent witness. There is nothing on the record to show that what he was stating was not truthful.

550. Some exception was taken during cross-examination to his statement that the photostat copy of Exh. P. W. 2/Z was given to him by Mian Muhammad Abbas. It was suggested that this copy was given to him by Nazir Ahmad, Deputy Director and not Mian Muhammad Abbas. This was denied. The suggestion proves Exh. P. W. 2; Z to be a genuine document since it was not denied that this copy was given by the F. S. F., Rawalpindi.

551. Mian Qurban Sadiq lkram criticised that material witnesses were withheld thus causing prejudice to the offence. These are Muhammad Yousaf, H. C., Col. Wazir Muhammad Khan of C. A. D., Havelian, and the recovery witness in the Lahore incident. Muhammad Yousaf, Head Constable. Walton, Lahore had given the weapons and ammunition to Ghulam Mustafa accused under orders of Amir Badshah Khan, P. W.

20. It was urged during arguments that the intervention of Mian Muhammad Abbas for ensuring the supply of weapons to Ghulam Hussain at Lahore was unnecessary since the latter had obtained weapons directly from Muhammad Yousaf on the 25th of October, 1974 and 71h of November, 1974. Reference was made to the Roznamcha of Muhammad Yousaf but neither the Roznamcha nor its relevant entries were proved.

552. This argument firstly falsifies the plea of Mian Muhammad Abbas that Ghulam Hussain was not in Lahore between 31st of November, 1974 to the 12th of December 1974. Secondly it is not understandable why the said accused did not produce Muhammad Yousaf as a defence witness to prove the Roznamacha entries when he had summoned Abdul Khaliq, D. W. 3 for proving Exh. D. W. 3/1, recovery memo of that Roznamcha.

553. An application was submitted by the prosecution to summon Col. Wazir Ahmad Khan, Colonal Incharge of C. A., Havelian, but it was disallowed by the Court as no case was made out for permission to examine him. No protest was made at that time by any of the counsel for the defence. This argument is, therefore, absolutely without merit.

554. The learned counsel urged that if Col. Wazir Ahmad Khan had been produced it could have been proved in cross-examination that C. A. D., Havelian did not supply the entire lot bearing No. 661/71 of 7.62 calibre ammunition SMG, LMG to the Federal Security Force Headquarters. Thus a case could be made that no adverse inference should be drawn from the recovery of the empties engraved with this number in the two incidents at Islamabad and at Lahore. This is no ground for permitting the prosecution to produce the witness since Mian Muhammad Abbas could have produced him in his defence, in the manner he has produced other defence evidence.

555. There is no reason why he should have withheld this record. On the other hand it appears clear from the statement of Ghulam Hussain made in answer to a cross-examination question of Mian Qurban Sadiq Ikram that the lot bearing a particular number and manufactured in any particular year cannot be issued to anybody else.

556. In view of this answer which excludes the possibility of lots bearing the same number and year of manufacture to be: issued to two different organizations it can safely be presumed under section 114, Evidence Act that if Col. Wazir Muhammad Khan had been summoned as a defence witness, he would not have supported Mian Muhammad Abbas.

557. Objection was also raised about non-production of the report of the Fire Arms Expert which admittedly was a negative report and was not therefore relevant in view of the non-recovery of the weapons used in the attack.

558. Mian Qurban Sadiq Ikram further argued that two witnesses of recovery of 24 crime empties were not produced. I do not think that the evidence of these witnesses would have made any difference, in view of the independent evidence of P. W. 36 Nadir Hussain Abidi that the recovered empties were not sealed.

559. The learned Public Prosecutor argued that it is not necessary under the law that all the witnesses cited in the calendar should be produced by the prosecution. He referred to Shaukat Ali v. The State (1976 P Cr. L 7 214), Nazir Jat and others v. The State (P L D 1961 Lah. 58.) and Malak Khan v. Emperor (AIR 1946PG 16), which support his contention. I agree that in the circumstances of this case no adverse inference can be, drawn by the non-production of any particular witness since the prosecution has produced sufficient evidence not only to corroborate the approvers in material particulars but even other witnesses.

560. Mian Qurban Sadiq Ikram took objection to the mode of 'roof of Exh. P. W. 1 i12, Exh. P. W. 3/3-1. Exh. P. W. 36/1, Exh. P. W. 36/2, Exh. P. W. 36/3, Exh. P. W. 36/4, Exh. P. W. 35/1, Exh. P. W. 35/2, Exh. P. W. 35/3, Exh. P. W. 35/4, Exh. P. W. 35/5, Exh. P. W. 38/2 and Exh. P. W. 38/3. This objection is also without force. The first six and the last two documents were admitted without any objection by any counsel. Objection was taken to the proof of other documents without the production of the writer thereof, by the evidence of a witness identifying the handwriting. This objection was held to be unsustainable in view of the provisions of section

67. Evidence Act.

561. It was argued that document Exh. P. W, 3/3-1 reproduces the report of the Tribunal which has not been allowed to be proved. As such this document should not have been admitted in evidence. It is true that document P. W. 3/3-I refers to some recommendation of the Tribunal, but this reference has been made only for the purpose of deciding whether the report should be given publicity or not. It does not prove the Tribunal's report as such and no objection can be taken to its being brought on record.

562. An objection was also raised that Mr. Irshad Ahmad Qureshi should not have been allowed to cross-examine the witness on behalf of the confessing accused after the cross-examination by the counsel of the principal accused since his role was that of a prosecutor. I do not agree with this argument. The order in which the cross-examination was conducted by different counsel was not regulated by the Court, but was left to the counsel themselves to determine. Mr. Irshad Ahmad Qureshi has done what he considered best for the technical defence of acting under superior order which his clients have taken. It would be a travesty to line him up with the prosecution.

563. It was urged that there was no motive either on the part of Mian Muhammad Abbas or on the part of the principal accused to conspire to kill Ahmad Raza Kasuri. I have already dealt with this question. I agree that Mian Muhammad Abbas had no motive of his own but the principal accused had a motive on account of the venom is his criticism by Ahmad Raze Kasuri.

564. Reliance was placed upon Exh. P. W. 3/16-D for this argument. This is the report of Saeed Ahmad Khan dated 29-7-1975, that Ahmad Raza Kasuri had a number of meetings with him and he had requested for hi audience with the principal accused. The note of Saeed Ahmad Khan ha already been proved as Exh. P. W. 3/2-E. Exh. P. W. 3/16-D was put in cross-examination for proof of the following endorsement on it "He must be kept on the rails, he must repent and he must crawl before he meets me. He has been a dirty dog. He has called me a ma man. He has gone to the extent of accusing me of killing his father. He is a lick. He is ungrateful. Let him stew in his juice for some time." There is another endorsement of the same date signed by the principal accused H reading "Please file", and addressed to the Private Secretary.

565. This document was exhibited subject to objection 5y the learned Special Public Prosecutor because it was urged by the learned Defence Counsel that its original was not forthcoming. I agree with the arguments of the learned Special Public Prosecutor that since the conditions of section 65 of the Evidence Act for leading secondary evidence, have not been proved, this document is inadmissible in evidence. I also agree that the first endorsement is clearly a forgery. There is no indication that the first endorsement was addressed to or was required to be seen by anybody. It is not possible to reconcile it with the second endorsement "Please file".