2002 PLP 1781 (YLR)

23. P.W.11 is Javed Iqbal, Head Constable No.1094 who was posted as Moharrar Head Constable at Police Station Saddar, Sheikhupura on 15‑4‑1998 and thereafter had performed certain duties during the investigation of this case such as keeping the sealed parcels in safe custody in Mal Khana and thereafter entrusting the same to different constables for transmitting the same to the respective offices.

24. P.W.12 is Muhammad Riaz Draftsman who on 19‑4‑1998 had visited the place of occurrence and had prepared the site plan Exh.P.Q. and its duplicate copy Exh. P.Q.1.

25. P.W.13 is Fazal‑ur‑Rehman Khan who lived at a distance of about 50/60 feet from the place of occurrence in Jandiala Sher Khan. On 15‑4‑1998, he had joined the investigation of this case and in his presence the I.O. had secured the blood‑stained earth from the spot which was sealed into different parcels and was taken into possession by the I.O. vide Memos. Exh.PR, Exh.PS. Exh.PT, Exh.PU, Exh.PV and Exh.P.W. which had been attested by him and also by Ali Asghar P.W. He stated that on 15‑4‑1998, the I.O. had taken into possession 156 empties of klashnikoves, 17 empties of .222 rifle, 5 empties of rifle 244, 5 empties of .12 bore gun and 12 bullets which were sealed into separate parcels and were taken into possession vide memo. Exh.PX which was attested by him i.e. P.W.13 and also by Ali Asghar P.W.

26. P.W.14 is Muhammad Ramzan who stated that on 8‑4‑1998 around 2‑00 p.m. he and his father Amir Ali P.W. Were present at the Dera of Saeed Ahmad Cheena accused and besides them Naseer Ahmad, Munir Ahmad, Qaisar, Akbar Gadhi and Shafique accused were also present there. On the meanwhile a Pajero and a car came there and were parked out side the dera and wherefrom Mushtaq Ahmad, Shehbaz Khan, Razzaq Khan, Mohsin Khan, Ishtiaq Khan, Aziz Khan, Asif Khan, Farooq alias Pomi and Farooq son of Sadiq came out and entered the Dera of Saeed Ahmad Chheena. After a short while, Mushtaq Khan asked Saeed Ahmad Cheena to stop aside as he had to mane certain "talks", but accused Saeed Ahmad Chheena replied that he could talk in the presence of those persons as they were their relatives and friends. Then, Mushtaq Ahmad accused started saying that Mahmood Akbar Khan, deceased M.N.A. had made their lives miserable, ever since he had become M.N.A. and that Mahmood Akbar Khan had favoured the accused of the murder case of his son and that he had got his land (Saeed Alunad Chheena's) into the possession of his enemies. Mushtaq Ahmad accused further stated that the deceased Mahmood Akbar Khan had got snatched the transport addas of accused Aziz Khan accused and that Fazal‑ur -Rehman accused was being implicated in false case by Mahmood Akbar Khan and if two brothers were not done away with, they would create troubled or theta. Saeed Ahmad Chheena accused agreed with Mushtaq Khan accused and stated that they were already for it and he inquired as to who would spy for Mahmood Akbar Khan and Mood Akbar Khan for their joint presence and Aziz Khan accused volunteered that he will take the said responsibility. Saeed Ahmad Chheena accused said that with the connivance of his friend Kafayat Ullah son of Inayat Ullah of District Gujrat, they had contacted Basharat Ali, Head Constable for the purpose and that he (Saeed Ahmad Chheena) would be arrested in a false case and sent to the judicial lock‑up and in this way he would be exonerated from the case and he would look after the case and also the interest of the other accused. Mushtaq Khan took the responsibility that his sons Shahbaz Khan and Razzaq Khan, would manage a wagon to be used in the commission of the offence and further that his son Mohsan Khan would stay there and his son Ishtiaq would supply the arms through Mohsan Khan accused. He further offered that his sons Ali Raza (since absconder) and Iftikhar would accompany them for the commission of the offence (to take part in the firing). Ishtiaq Khan accused offered that they would supply arms with the help of Mohsan Khan to them. Aziz Khan accused then took the responsibility for the confirmation of the presence of Mahmood Akbar Khan and Masood Akbar Khan together at the Dera and further offered to take part in the occurrence at the time of firing. He deposed that Qaiser Chheena accused and others also volunteered that they would arrange for the hired assassins and will also supply the arms. Then all the accused took special oath on Holy Qur'an that they would remain united in order to murder the said two brothers. Thereafter all the accused went away to their houses and he i.e. P.W.14 alongwith his father also went away to their houses. Ramzan, P.W.14 deposed that he and his father had divulged the said conspiracy before Mahmood Akbar Khan deceased and his maternal uncle Nasrullah Khan P.W.

27. P.W.15 namely Muhammad Akhtar, H.C. No.324 was entrusted with the non bailable warrants of Nasir accused, Exh.P.W.15/1. Shah accused Exh.P.W.15/2. Farooq accused Exh.P.W.15/3, Munir accused Exh.P.W.15/4, Naseer Ahmad accused Exh.P.W.15/5. Qaiser accused P.W.15/6, Shafique accused Exh.P.W.15/7, Fazal‑ur‑Rehman accused Exh.P.W.15/8 and Asif accused Exh.P.W.15/9 for the arrest of the said persons. He tried to execute the said non‑bailable warrants of arrest but as the said accused were not traceable, he recorded his reports on the said non‑bailable warrants of arrest and returned the same. On 13‑7‑1998 he was entrusted with the proclamations Exh.P.W.15/19 against Shah, accused, Exh. P. W.15/20 against Fazal‑ur‑Rehman accused, Exh.P.W.15/21 against Nasir accused, Exh.P.W.15/22 against Naseer Ahmad accused, Exh.P.W.15/23 against, Qaiser accused, Exh.P.W.15/24 against Shafique accused, Exh.PW‑15/25 against Munir Ahmad accused and Exh.P.W.15/26 against Farooq accused. He recorded his reports on the said proclamations (and returned the same).

28. P.W.16 is Arshad Parvaiz alias Gulloo Badshah who used to drive wagon NO. SGC 8186 from Lahore to Sheikhupura. He deposed that on 14-4‑1998 in the evening he was present at Adda Sheikhupura when Mushtaq Ahmad Khan, Shahbaz Khan and Razzaq Khan accused reached there and contacted him. Mushtaq Khan accused wanted to hire his wagon as Mehndi was to be taken from Jandiala Sher Khan to Lady Wallington Hospital, Lahore. He demanded Rs.700 (as fare) but Mushtaq Khan accused offered Rs.600 and ultimately the fare was settled at Rs.650. Shahbaz Khan and Razzaq Khan accused took their seats in the wagon and before departure Mushtaq Khan asked his sons to take the wagon, to the Dera of Naseer Ahmad Chheena and to act in accordance with the programme. Then he i.e. P.W.16 Shahbaz Khan and Razzaq Khan accused arrived at the Dera of Saeed Ahmed Chheena. The wagon was taken inside and the main gate was closed. At the time Moshin Khan, Iftikhar, Ali Raza and Rafiq Gadhi who were previously known to P.W.16 alongwith 15/16 other persons were present in the Dera. After some time, Shahbaz Khan, Razzaq Khan and Mohsin Khan accused made him sit in a room at gun‑point and Iftikhar Ahmed accused deprived him of the key of the wagon. Thereafter, the accused and other persons boarded in his wagon, in a car and also on a Motorcycle. Accused Shahbaz Khan, Razzaq Khan and Mohsin Khan remained with him in the room while the remaining accused went away on the aforesaid vehicles. Within half an hour, all the above stated accused arrived back at the Dera. Some of whom sat in the Dera while Shahbaz Khan, Razzaq Khan, Mohsin Khan and Iftikhar accused sat with him in the wagon while Iftikhar accused took up the steering wheel of the wagon. They brought him to the Gujranwala Road‑Check Post of Dheer. where they dropped him and themselves went away in his wagon. From there he went to Lahore. He deposed that while dropping him, the accused had threatened him with dire consequences, in case he revealed the above incident before any one and that his fate would be the same as that of Mahmood Akbar Khan and his brother Masood Khan etc. On reaching Lahore, he apprised the owner of the wagon about the entire incident. P.W.16 further deposed that he had joined the investigation of this case, on 17‑4‑1998 and he again joined the investigation on 29‑5‑1998 with CIA Staff Sheikhupura and he handed over his wagon parked outside the CIA premise at Sheikhupura. He deposed that at the time Mushtaq Khan accused and his sons namely Razzaq Khan, Shahbaz Khan and Mohsin Khan were present at CIA Staff where he had identified the wagon.

29. As regards the eye‑witness account of the occurrence, P.W.17 Nasrullah Khan complainant deposed that on 14‑4‑1998 about 10‑15/10‑45 p.m. He and Mahmood Akbar Khan, Masood Akbar Khan, Muhammad Sadiq, Muhammad Moazzam Khan, Sher Muhammad, Haji Taj Din, Riasat, Bashir Khan, Aziz‑ur‑Rehman, S.D.O. and Line Superintendent Abdul Lateet were sitting at the Dera of Mahmood Akbar Khan, M.N.A. and the main gate of the Dera was closed while smaller gate was open and the electricity light was on but all of a sudden they heard the noise of the vehicles stopping in front of the gate of the Dera. Thereupon accused namely Riasat, Ashiq, Munir, Iftikhar, Ali Raza, Fazal‑ur‑Rehman, Qaiser, Naseer, Aziz Khan, Nasir, Rafiq Gadi, Qaiser of Narowal, Mansha alias Dr. Javaid, Akram Rehmani, Shah and one unidentified assailant entered the Dera. The accused were armed with rifles, klashinkovs, .222 rifles and guns. All of them started firing at Mahmood Akbar Khan and Masood Akbar Khan. He i.e. P.W.17 and also Haji Taj Din, Bashir Khan and Moazzam Khan rushed to the northern room for shelter. The accused also fired at them and the shots hit the doors, windows and the walls of the Dera. The accused after raising Lalkaras fled away, also taking along their arms, on a motorcycle, a car and a wagon. Therefore, they came out of the room and found Mahmood Akbar Khan, Masood Akbar Khan, Aziz‑ur‑Rehman, S.D.O., Abdul Latif, Raisat, Sadiq and Sher Muhammad in injured condition. On hearing the sound of firing, Kamran and Faqir Hussain P.Ws. and other inhabitants of the area reached there. The occurrence had been witnessed besides him by Bashir Khan, Haji Taj Din and Moazzam Khan. He deposed that he and Moazzam Khan P.Ws. and others transported the injured to the Civil Hospital, Sheikhupura for treatment and that in the Civil Hospital Sheikhupura, Mahmood Akbar Khan, Masood Akbar Khan, Riasat, Abdul Lateef and Sher Muhammad succumbed to the injuries, while Aziz‑ur‑Rehman, S.D.O. and Muhammad Sadiq were referred to Mayo Hospital, Lahore. He, i.e. the complainant had hardly left for the police station to lodge the complaint that the S.H.O., Police Station Saddar, Sheikhupura arrived and he also recorded his supplementary statement about this occurrence. He deposed that he identified the dead bodies of Masood Akbar Khan, Mahmood Akbar Khan, Riasat.

30. It may be mentioned here that P.W.17 also deposed about motive. He stated that in the last General Elections deceased Mehmood Akbar Khan and Muhammad Munawar Manj were rival candidates to a seat for National Assembly. Mehmood Akbar Khan deceased defeated Muhammad Munawar Manj. The accused supported Munawar Manj against deceased Mehmood Akbar Khan. He further deposed that two years prior to the occurrence the accused Saeed Ahmed Chheena and Naseer Ahmad Chheena had forcibly got possession of land of one Waris Chheena. The matter went to the Court and the case was decided in favour of Waris Chheena about four months prior to the occurrence. Waris Chheena took possession of the so land. The accused Saeed Ahmad and Naseer Ahmad had grudge against deceased Mehmood Akbar Khan and Masood Akbar Khan for helping Waris Chheena against them. He deposed that accused Asif Khan and Aziz Khan had grudge over taking of Bus Stand, Sheikhupura/Hafizabad which was taken from them and was given to him by the owners of the vehicles. They believed that it was done at the behest of the deceased brothers. He further deposed that accused Fazal‑ur‑Rehman was associated in the investigation in a theft case of motorcycle of Village Warrant. Accused Fazal‑ur‑Rehman believed that it was also done at the behest of the deceased M.N.A. He, i.e. P.W.17 also deposed that one Muhammad Ishaq Khan, a son of the accused Mushtaq Ahmad Khan was murdered about 2‑1/2 or 3 years prior to the present occurrence. Masood Akbar Khan deceased was cited as an eye‑witness in that case but he refused to testify in the Court for the reason that he did not want to depose against certain innocent persons. Accused Mushtaq Khan had grudge over this issue. Lastly he deposed that Mahmood Akbar Khan deceased, Muhammad Ramzan and Ameer Ali P.Ws. told him that on 8‑4‑1998 at the Dera of Saeed Ahmad Chheena and Naseer Ahmed accused Mushtaq Ahmad Khan. Saeed Ahmad Chheena, Naseer Ahmad Chheena, Aziz Khan, Asif Khan and Fazal ur‑Rehman and others hatched a conspiracy to commit the murders of Mehmood Akbar Khan and Masood Akbar Khan due to the above said reasons and due to the behaviour of the deceased M.N.A.

31. P.W.18 Moazzam Khan another eye witness in this case who supported the version of P.W.17 in respect of all the material particulars.

32. P.W.19, Aziz‑ur‑Rehman, S.D.O., WAPDA is the injured P.W. He supported the prosecution story. Having received fire arm injury on his right leg, he had fallen on ground. He stated that" including him, seven persons was injured in the occurrence. The culprits who had alighted from the vehicles, had entered the Dera of Mehmod Akbar Khan, M.N.A. and had indulged in indiscriminate firing, were not known to him (and hence he did not name them specifically in his statement). However, he did name Nasurullah Khan and Moazzam, P.Ws. as among the persons who were present at the Dera of Mehmood Akbar Khan, M.N.A. when the assailants had arrived there. After having been given first‑aid treatment in DHQ Hospital, Sheikhupura, this witness was referred to Mayo Hospital Lahore. Subsequently he came to know that Abdul Lateef, Line Superintendent had died.

33. P.W.20 Kamran Khan is cousin (Khalazad) of Mehmood Akbar Khan deceased. He deposed that on 14‑4‑1998 around 10/15/10‑45 p.m. he was sitting on a small Thara outside his house in village Jandiala Sher Khan when he saw a motorcycle Yamaha without number plate, a wagon of SGC‑8186 and a Toyota Car No.GAA‑1400 coming from the side of Union Council and which stopped outside the Dera of Mahmood Akbar Khan, M.N.A. and Aziz Khan and Shan accused got down from the motorcycle, Naseer, Nasir, Munir, Qaiser, Riasat, Ashiq, Iftikhar, Ali Raza, Fazal‑ur‑Rehman, Qaiser Rajput and one unknown person alighted from the Toyota Wagon and Rafiq Gadi, Akram Rehmani, Dr. Javaid Mansha came out of the car. The said accused were armed with rifles. They entered the Dera of Mahmood Akbar Khan and resorted to indiscriminate firing. After firing from some time, the accused persons while firing fled away in the abovementioned vehicles. After the departure of the accused he entered the Dera of Mahmood Akbar Khan and saw Mahmood Akbar Khan and Masood Akbar Khan and their companions lying in injured condition, besmeared in blood. The injured persons were being attended to by Haji Taj Din, Moazzam Khan, Nasrullah Khan and Bashir Khan. In the meanwhile, Faqir Hussain, P.W. also arrived at the spot. Then they sent all the injured persons to DHQ Hospital, Sheikhupura. He deposed that around 2/2‑30 a.m. the S.H.O., arrived at the spot who recorded his statement. He further deposed that on 28‑5‑1998 he and Ali Asghar P.W. had joined the investigation with Muhammad Afzal, A.S.‑I. at Moor Khunda, Jaranwala Road where the Police had set tip a Naka and was checking the vehicles. In the meanwhile, Wagon No.SGC‑8‑186 arrived therein in which Shahbaz, Mohsan and Razzaq Khan accused were present. The Police took into possession the said wagon (P.14) vide memo. Exh.PY, and arrested the accused. The memo. was attested by him and Ali Asghar P.W. P.W.20 further deposed that on 5‑6‑1998, Haji Taj Din and he himself joined the investigation at CIA Staff, Sheikhupura and in their presence, Rafique Gadi accused while in custody led to the recovery of a rifle 222 (P‑15) from his residential house at the Dera Gadianwala. The rifle was recovered on his pointation lying in an iron box in his residential room which was taken into possession vide memo. Exh.PZ ' the Magazine which contained 8 bullets was also taken into possession He deposed that the I.O. had secured the Magazine P.16 which was extracted from the rifle P.15 and contained 8 live bullets Exh.P.16/1‑8 and were secured vide the same Memo. Exh.PZ which was attested by him and by Haji, Taj Din P.W. P.W.20 further deposed that on the same day i.e. on 5‑6‑1998 Aziz Khan accused while in custody led to the recovery of gun .12 bore P.17 from his residential room of his house which was lying in an iron box. A live cartridge P.18 was also recovered and was secured vide memo. Exh.PPA and the gun P 17 was made into a sealed parcel. He deposed that on 5‑6‑1998 Iftikhar Ahmad Khan accused while in custody led to the recovery of klashnikov (P.19) with a magazine (P.20) and 10 live bullets P.20/1‑10 which were 'secured vide memo. Exh.PBB. He stated that klashnikov P.19 was sealed into a parcel. He deposed that on 14‑4‑1998 at the time of the occurrence i.e. 10‑15/10‑45 p.m. he had identified the above mentioned vehicle and the accused in the electric light search light.

34. P.W.21 Haji Taj Din is another eye witness of the occurrence and who supported the prosecution story about the occurrence and the recovery of the weapons of offence at the, instance of some of the accused.

35. P.W.22 is Sajid Sohail Khan who deposed that on 8‑5‑1998 he had joined the investigation of this case at CIA Staff, Sheikhupura alongwith Muhammad Hanif P.W. They and Z1mir‑ul‑Haq, Inspector reached Muridke Narowal Road where one Abdul Sattar appeared before the Inspector and told him that Nasir, Naseer, Qaiser, Iftikhar Khan, Qaiser of Narowal and Farooq Pomi had fire‑arms with them and that they were present at the Dera of Altaf Saleh situated within the jurisdiction of Police Station Narang Mandi: Then they alongwith the police party went to the Dera of the said Altaf Saleh. However, before they reached the said Dera, the accused had left. The police party arrested Altaf Saleh and who took the police party to his Chobara. There he led to the recovery of four klashnikovs which were lying on .a carpet, one .303 rifle, four bags containing live bullets and eight empty magazines of kalashnikovs lying on the carpets in Chobara. These articles were referred to by him as P.21 to P.29 and also P.31 and P.30‑1/A respectively. He deposed that these articles were taken into possession (by the Police) vide memo. Exh.PCC which was attested by him and also by Muhammad Hanif P.W. and all the said articles P.21 to P.25 were sealed into separate parcels.

36. P.W.23 is Abdus Sattar who deposed that he was summoned by Rai Zameer‑ul -Haq, Inspector/S.H.O. and who sought his help to trace out the accused, because he had relations with Naseer Ahmed accused who had been on visiting terms with Saleh Muhammad. He then went to Kirtopandori on the. Dera of Saleh Muhammad where he saw that Naseer, Qaiser, Nasir, Iftikhar, Qaiser of Narowal and Farooq alias Pomi accused, were present. Four of them namely Iftikhar, Naseer, Nasir and Qaiser accused had kalashnikovs with them while Qaiser of Narowal was having .222 rifle with him. He stayed there with the accused for about 1‑1/4 hours and then he left the Dera and on his way he met Rai Zamir‑ul‑Haq, Inspector at Muridke Chowk on Narowal Road which was the appointed place and he told the Inspector that the aforesaid accused was sitting on the said Dera. He recorded his statement there and then he alongwith them, (Police party) started towards the said Dera.

37. P.W. 23 further deposed that on 12‑6‑1998 he was sitting on his Dera alongwith his friend Muhammad Boota, around 9‑00 p.m., when Saeed accused came to him and asked him to send away Muhammad Boota accused because he wanted to have some conversation with him. He, however, replied that Boota was his reliable friend so he may talk in his presence. Then he i.e. Saeed accused deposed that he had become absconder from the custody of Zameer‑ul‑Haq, Inspector after remand and he was apprehending that he might be murdered by the said Inspector because he alongwith Mushtaq Khan, Ishtiaq Khan, Iftikhar Khan, Akbar Gadi, Rafique Gadi, Riasat, Ashiq, Nasir and Naseer etc., had murdered Mahmood Akbar Khan and Masood Akbar Khan and others. Aforesaid P.W. further stated that he was having a friend namely Chaudhry Ashraf of Alianwala who was related to Zameer‑ul‑Haq, Inspector and that he should talk to Ashraf and then he will be produced before the Inspector after getting assurance that the Inspector would not murder him. He then went to Ashraf aforesaid but he refused to help the accused on the ground that he would not like to help such type of accused.

38. P.W.24 is Raiz Ali, S.‑I. who deposed that in April, 1998 he was posted as Additional S.H.O. at Police Station Kakrali, District Gujrat and that on the night between 10/11‑4‑1998 he was on patrolling duty accompanied by Pervaiz, constable, Riaz Driver and Anar Khan etc. Around 12‑30 a.m. in the night, Basharat HC/accused posted at CIA Staff, Gujrat produced before him Saeed Ahmad accused with a loaded pistol. On unloading the pistol 6 live bullets were recovered from the same. Saeed accused could not produce any licence for the said pistol and he took the pistol into custody and case F.I.R. No.64 of 1.998 dated 11‑4‑1998 was got registered under section 13 of the Arms Ordinance, 1965 against the said Saeed accused. He also delivered information on wireless to Police Station Saddar, Sheikhupura regarding the arrest of Saeed accused. During the investigation of the said case, it came to his knowledge that Saeed accused at the instance of Basharat Head Constable/accused had offered his arrest in order to save himself from the murder case of Mahmood Akbar Khan and others. He deposed that he had joined the investigation of the murder case of Mahmood Akbar Khan and others on 28‑7‑1998 and had got recorded his statement by the I.O.

39. P.W.25 namely Muhammad Arif is the son of Muhammad Sadiq deceased who had identified the dead body of his father in the hospital at the time of its post‑mortem examination.

40. P.W.26 is Muhammad Afzal Constable No. 190, who deposed that on 12‑5‑1998 Javaid Moharrar had handed over to him four sealed parcels and one sealed parcel of rifle for onward transmission to the Forensic Science Laboratory, Lahore and he accordingly deposited the same in the said office on the same day.

41. P.W.27 is Arshad Mahmood, Inspector who deposed that on 14‑4‑1998 he was present in the Illaqa in connection with his patrolling duty when around 11‑00 p.m. in the night he received an information that Mahmood Akbar Khan, Masood Akbar Khan and others had been attacked and as a result of the said attack they had been injured and had been shifted to the DHQ Hospital, Sheikhupura. He then rushed to the hospital where Nasrullah Khan, complainant met him and he recorded his statement Exh.PA. thereafter he sent the statement Exh.PA through Ashraf, Constable to Police Station Saddar; Sheikhupura for the registration of the case. Then he had recorded the supplementary statement of Nasrullah Khan P.W. about the occurrence and the motive of the occurrence. Thereafter, he sent some police official to the place of occurrence to guard the same. After that after midnight, he recorded the statement of Moazzam Khan under section 161, Cr.P.C. in the Emergency Ward (of the hospital). Then he prepared the injury statement of Mahmood Akbar Khan deceased Exh.PM/3, inquest report Exh.PM/2, in respect of Masood Akbar Khan injury statement Exh.PN/3 and Inquest report PN/2, in respect of Riasat Ali deceased injury statement Exh.PO/3 and inquest report Exh.PO/2, in respect of Sher Muhammad deceased injury statement Exh.PY/3 and Inquest Report Exb.PK/2, and in respect of Abdul Lateef deceased Injury Statement Exh.PL/3 and Inquest Report Exh.PL/2. Then he handed over the dead bodies of the deceased to Abid Mehmood, A.S.‑I. and other police officials to take the same to the mortuary for autopsy. The applications for conducting the post‑mortem were prepared by him which are Exh.PM/4, Exh.PN/4, Exh.PO/4. Exh.PK/4 and Exh.PL/4 respectively and then he proceeded to the spot and recorded the statement of Taj Din, Bashir Khan, Kamran Khan and Faqir Hussain P.Ws. under section 161, Cr.P.C. On the pointation of the P.Ws., he inspected the spot, collected the blood from the place of murders and made the same . into sealed parcels and secured the same vide memos. Exh.PR, Exh.PS, Exh.PT, Exh.PU, Exh.PV and Exh.PW. Then he took into possession the crime empties of kalasnikovs, of .222 rifle, of rifle .244 bore, 'empty cartridges of .12 bore gun, and the bullet leads. He took into possession all these articles and prepared separate sealed parcels. He prepared the site plan of the place of occurrence Exh.PCC and also recorded the statements of the P.Ws. under section 161, Cr.P.C.

42. P.W.27 further deposed that he took into possession the last worn clothes of the deceased P.2 to P.13 vide memo. vide Exh.PC to Exh.PG. The said last worn clothes had been produced before him after the post‑mortem examination at the place of occurrence. Then he came to Mayo Hospital, Lahore where he submitted an application for seeking permission to record the statement of Muhammad Sadiq injured P.W. Exh.PDD and the Doctor recorded the query (note) on the same which is Exh.PDD/1. The injured was declared fit to make a statement and then he recorded the statement of the injured P.W. i.e. Muhammad Sadiq which is Exh.PEE. Muhammad Sadiq had subsequently died on 21‑4-1998. Then he moved an application Exh. PFF for seeking permission for recording the statement of Aziz‑ur‑Rehman, S.D.O./injured P.W. The query (note) recorded on this application is Exh.PFF/1. The Doctor declared fit to make statement. Then he went back to Sheikhupura and started search for the accused. On, 17‑4‑1998 when he was present in the Police Station, Arshad alias Gullu P.W., Wagon Driver made a statement before him under section 161, Cr.P.C. In view of the statement of Arshad P.W. he added section 395, P.P.C. in the F.I.R. on 21‑4‑1998, he received an information that Sadiq, the injured P.W. had died in the hospital; where he had been admitted. He came to Mayo Hospital, Lahore where he prepared the injury statement of the deceased Exh.PP/3 and also prepared the Inquest Report Exh.PP/2. He also moved an application for the post‑mortem examination of the deceased Exh.PP/4. He handed over the dead body of the deceased Muhammad Sadiq to Muhammad Ashraf, constable for post‑mortem examination and who escorted the dead body for autopsy to the Sheikhupura hospital. The said constable produced before him the last worn Chaddar P.4 which was taken into possession by him vide recovery memo. Exh.PB. He handed over the sealed parcel to the Moharrer Head Constable of the Police Station for safe custody in the Malkhana. The investigation of the case was again handed over to Zameer‑ul‑Haq Inspector of CIA, Sheikhupura. He deposed that so long as the investigation remained with him he could not arrest any of the accused person.

43. P. W.28 is Zamir‑ul‑Haq, Inspector who deposed that the S.S.P., Sheikhupura had entrusted to him the file of this case for investigation. Since the accused had not been arrested (by them) he made efforts to search for the accused. On 19‑4‑1998, Riaz Ahmad, Draftsman inspected the spot in his presence. On 8‑5‑1998 he deputed Abdul Sattar P.W. to assist him for the arrest of the accused. On that day, at Chowk Narowal‑Muridke he informed him about the presence of the accused and he recorded his statement to the effect. Then he conducted raid on the Dera of Altaf Saleh but the accused had decamped before his arrival. He arrested Altaf Saleh and interrogated him. He i.e. Altaf Saleh led him and the witnesses to his Chowbara and got recovered kalashnikovs P.21 to P.24, rifle P.25, one bag containing 40 bullets P.26/ 1‑

40. Another bag P.27 with 16 bullets P.27/1‑16, a bag P.28 with 17 bullets P.28/ 1‑17, a bag P.29 with 13 bullets P.29/1‑13, 8 magazine P.30/1‑8 and another bag P.31 with 40 live bullets P.31/1‑

40. The four kalashnikovs and the rifle were made into separate sealed parcels and were taken into possession vide memo. Exh.PCC. He inspected the spot and prepared the site plan Exh.PCC/1. Since Altaf Saleh could not produce any valid licence for the aforesaid arms, a separate case under the Arms Ordinance had been registered. He recorded the statements of the P.Ws. and searched for the accused till 25‑5‑1998. On the said day, he alongwith other Police Officials conducted a raid at Sherakot. One Shafiq was arrested with a kalashnikove while Naseer, Munir and Qasier accused alongwith one Muhammad Akram managed to escape. He deposed that an encounter took place between them and the absconders and as a result of which two absconders namely Muhammad Akram Rehmani and Dr. Javaid Iqbal accused sustained injuries and died at the spot. Car. No.GA 1400, P.32 was recovered and was taken into possession vide memo. Exh.PLI and on 2‑6‑1998 he arrested Muhammad Rafique accused and on the same day, Altaf Virk, Advocate produced accused Aziz Khan before him and he arrested him. On the same day he re‑arrested Shahbaz Khan, Razzaq and Mohsan Khan accused from outside the Chamber of Mr. Pervaiz Akhtar, Advocate from Lahore. On 4‑6‑1998 he arrested Riasat Ali and Ashiq accused as they were produced by Chaudhry Nazir Ahmad and Abdur Rehman Virk. On 5‑6‑1998 Muhammad Rafique, Aziz Khan and Iftikhar Khan accused were interrogated by him and they offered him to lead to the recovery of the weapons of offence from their residential houses. So, Rafique Gadi accused led to the recovery of rifle .22 bore P.15 alongwith a magazine P.16 and 8 live bullets Exh.P.16/ 1‑8 from a residential room of his house. A case under the Arms Ordinance. was registered against the accused. On the same day, Iftikhar accused led to the recovery of kalashnikov P.19 and magazine P.20 with ten live bullets P.20/1‑20 from an iron box from his residential house and the same were taken into possession vide memo. Exh.PBB. On the same day, Aziz Khan accused, while in custody, led to the recovery of gun P.17 alongwith one live cartridge P.18. The gun was sealed into a parcel and the same was taken into possession vide memo. Exh.PAA. A case under the Arms Ordinance was also registered against the said. accused. On the same day he arrested Ishtiaq Ahmad accused who was serving in Police Department as an A.S.‑I. He also arrested Basharat Head Constable on the same day. He then arrested Akbar accused on 12‑7‑1998 and recorded the statements of the P. Ws. under section 161, Cr.P.C. On 13‑7‑1998, he arrested Saeed Ahmad, accused. On 23‑7‑1998, he got registered an F.I.R. about the abscondence of Saeed accused from the police custody. On 28‑7‑1998 he recorded the statements of the P.Ws. under section 161, Cr.P.C. On 22‑9‑1998 he re‑arrested Saeed accused alongwith Naseer and Asif Khan accused. On 29‑9‑1998 he arrested Shafique accused. He also recovered motorcycle P.34 at the instance of Naseer Ahmad which was taken into possession vide memo. Exh.PKK. He prepared the site plan of the place of recovery Exh.PKK/1. Thereafter, the investigation of this case was entrusted to Abdul Haq, Inspector.

44. P.W. 29 is Muhammad Afzal, A.S.‑I. who deposed that on 28‑5‑1998 he was posted in CIA Staff and had partially investigated this case. On the said date he was present in CIA Staff, Sheikhupura where he received an information that Nasir and others will proceed to Jaranwala from Lahore. He then constituted a Naka party also associated Kamran and Ali Asghar Khan P.Ws. for the identification and arrest of the accused. He arranged Naka on Lahore Road at a distance of about 2 k.m. from Moor Khunda towards Lahore, and started checking the vehicles. Around 3‑30 p.m., Wagon SGC‑8186 (P.14) came from Lahore side. They stopped the wagon and searched the same. Shahbaz Khan, Razzaq Khan and Mohsan Khan accused were arrested from the said Wagon. The Wagon (P.14) was taken into possession vide recovery memo. Exh.PY. He also recorded the statement of Kamran and Ali Asghar P.Ws. under section 161, Cr.P.C. At the spot and brought the accused to CIA Staff alongwith the wagon and handed them over to Chaudhry Ghulam Rasool, Inspector CIA, Sheikhupura. On 29‑5‑1998 he received a secret information that accused Mushtaq Khan and his son Iftikhar Khan were present at Saleem Kot. He conducted a raid and arrested both the accused. On 30‑5‑1998, Mushtaq Khan accused was sent to the Judicial Lock up and Iftikhar Khan accused was handed over to Zameer‑ul‑Haq, Inspector who then taken over the investigation of the case.

45. P.W.30 is Abdul Haq, D.S.P. who on 21‑6‑1998 was posted at Police Station Saddar, Sheikhupura. He had prepared the incomplete challan of this case dated 21‑6‑1998. He had got issued the non‑bailable warrants of arrest of the proclaimed offenders namely Naseer, Shan, Farooq, Munir, Nasir Ahmad, Qaiser, Shafiq, Fazal ur‑Rehman and Muhammad Asif accused. He had handed over the warrants to Muhammad Akhtar, Head Constable (for execution). When the non‑bailable warrants of arrest could not be executed he obtained the proclamations against Shan, Fazal‑ur- Rehman, Nasir, Qaider, Shafiq, Munir and Farooq accused. He deposed that all the said warrants and proclamations had been signed by him. On 1(k8‑1998 he submitted the supplementary challan of the case. On 1‑10‑1998 he submitted another supple mentary challan in the Court. On 24‑12‑1998 he submitted yet another supplementary challan. On the basis of the previous investigations he challaned all the P.Os. and also the arrested accused.

46. Mr. M. Asghar Khan Rokheri, the learned Special Public Prosecutor tendered in evidence reports of the Chemical Examiner Exh.PS to Exh.PX and those of the Serologist Exh.PS/1 to Exh.PX/1. He also tendered in evidence, the report of the Forensic Science Laboratory Exh.PZ/1‑4 and closed the case for the prosecution.

47. After the conclusion of the prosecution evidence, the statements of the accused under section 342, Cr.P.C. were recorded and wherein they denied all the incriminating circumstances.

48. Accused Saeed Ahmad Chheena in answer to the question as to why this case against him and why the P.Ws. had deposed against him, replied as under:‑‑ "The occurrence took place during dark hours of the night. The P.Ws. did not see the occurrence. Aziz‑ur- Rehman injured P.W. has not named and identified any of the accused. We have been involved on account of suspicion and guess work. The deceased M.N.A. and his brother had enmities with different people of the Illaqa. We have no enmity with the deceased. We have been falsely involved. The prosecution witnesses are inimical towards us. There is nothing common amongst us i.e. accused."

49. In answer to the same question, as mentioned above, Iftikhar accused son of Mushtaq Khan replied as following:‑‑ "I am student. The alleged occurrence took place during dark hours of the night. It is unwitnessed occurrence. The P.Ws. did not see the occurrence at all. Even their presence is unnatural. The only injured P. W. Aziz‑ur‑Rehman has not named and identified any accused. We have been falsely involved on account of mere suspicions. The deceased M.N.A. and his brother had enmity with different, people of the Illaqa. We have no enmity whatsoever with the deceased. We have been falsely involved by the P.Ws. who are inimical towards us on account of their illegal designs. There is nothing in common amongst us and the other accused."

50. Shahbaz Khan, Razzaq Khan, Naseer Ahmad and Mohsan Khan accused in answer to the same question as mentioned above, gave almost the same answer as had been given by Iftikhar accused.

51. Farooq son of Sadiq accused in answer to the question as to why this case against him and why the witnesses had deposed against him replied that he had been falsely involved in this case on account of enmity and that he had not been named in the F.I.R.

52. Basharat son of Suba accused in reply to the above question, gave the following answer:‑‑ "I have been malafidely challaned. Neither the Investigating Officer of arms case no other members of the raid have been challaned in this case. I did not know Saeed accused previously. I never hatched my conspiracy. It is all guess work of the Investigating Officer."

53. Ishtiaq Khan accused in answer to Question No.22 gave the following answer:‑‑ "I have been falsely involved in this case being son of Mushtaq Ahmad Khan and as an A.S.‑I. in the Police. The police has also falsely involved my father and my five younger brothers i.e. the entire family. The only evidence against me is of Muhammad Ramzan P. W. who is self‑confessed liar and inimical towards my family."

54. Akbar Gadhi accused in answer Question No.21 gave the following reply:‑‑ "I have been involved falsely on account of suspicion was not named in the F.I.R. The injured eye witness has not identified or named me. "

55. Muhammad Shafiq accused in answer to the same question gave the following answer:‑‑ "I have been falsely involbed on account of suspicion. I was not named in the F.I.R. Injured P.W. has neither identified me nor named me. The P.Ws. are inimical."

56. Muhammad Asif Khan accused in answer to Question No.22 gave the following reply:‑‑ "My wife is a doctor and was posted at DHQ Hospital, Sheikhupura. I reside alongwith my wife' in the official residence within the compound Q the Hospital. During the night of occurrence when the wagon and dead bodies reached in the Hospital, I served and supplied the necessary help to the injured. My wife also did her best. I joined the funeral ceremony. Attended the Qul and Chehlam. I opposed the grant of ticket to Nasrullah complainant in the meeting held in the presence of Speaker, National Assembly and supported the award of ticket to widow of Mahmood Akbar. It was question of my blood. Complainant is our blood relative. Complainant became annoyed and involved me belatedly. The P.Ws. are inimical to me. I have been falsely involved. Occurrence took place during the night hours. They have not seen the occurrence."

57. Riasat Ali accused in answer to Question No.28 gave the following reply‑‑‑ "I am graduate. I and my brother Ashaq are U.D.C. in Income Tax Department. We have two young brothers who are illiterate and cultivate the land in the village. We have no enmity with the deceased. We voted in support of Pakistan Muslim League. Deceased M.N.A. used to look after us. I have been falsely involved by the complainant, so that I may not use my influence in favour of the co‑accused. I did not participate in‑ the conspiracy or occurrence. I was found innocent during the investigation. Nothing could be recovered from me in spite of the physical remand. "

58. Mushtaq Ahmad Khan accused in answer to Question No.28 put to him, gave the reply as following:‑‑ "We have no enmity with the, deceased M.N.A. and his brother. The alleged occurrence took place during the dark hours of the night. It is an unwitnessed occurrence. The P.Ws. did not see the occurrence at all. Even their presence is unnatural. The only injured P.W. Aziz‑ur -Rehman has not named and identified any accused. We have been falsely involved on account of mere suspicion. The deceased M.N.A. and his brother had enmity with different persons of the Illaqa. We have been involved falsely by the P.Ws. who are inimical towards us on account. of their illegal designs. There is nothing in common amongst us and other accused."

59. Aziz Khan son of Azam Khan accused in answer to the same question which was put to him as Question No.34 replied as following:‑‑ "I and my brother have been falsely involved. I met an, accident on 17‑7‑1995, prior to occurrence. My legs were broken since then I am using wooden crutches. I did not participate in the occurrence. I have been falsely involved on account of enmity with the P.Ws. Deceased M.N.A. and his brother have no enmity whatsoever with me."

60. Accused Muhammad Ashiq, in answer to the above question, replied as follows:‑‑ "I am a graduate. I and my brother Ashiq are U.D.C. in Income Tax Department. We have two young brothers who are illiterate and cultivate the land in the village. We have no enmity with the deceased. We voted in support of Pakistan Muslim League. Deceased M.N.A. used to look after us. I have been falsely involved by the complainant, so that I may not use my influence in favour of the co‑accused. I did not participate in the conspiracy or occurrence. I was found innocent during the investigation. Nothing could be recovered from me in spite of the physical remand. "

61. Rafiq Gadhi, accused in reply to the same question, as mentioned above, gave the following answer:‑‑ "I have been falsely involved on account of suspicion. I am not named in the F.I.R. ‑P.Ws. are inimical."

62. On the conclusion of the trial, the learned trial Court vide its judgment dated 21‑8‑1999; (a) acquitted Riasat Ali and Ashiq Ali accused of all the charges; (b) also acquitted (1) Muhammad Asif Khan (2) Akbar Gadi (3) Muhammad Shafiq and (4) Muhammad Farooq accused of all the charges. (c) (1) Iftikhar Khan (2) Naseer Chheena (3) Aziz Khan and (4) Muhammad Rafiq Gadi were convicted under sections 148/149, P.P.C. and sentenced to R.I. for three years and a fine of Rs.50,000 each and in case of default to undergo S.I. for three months each. (d) (1) Iftikhar Khan (2) Naseer Ahmad Chheena (3) Aziz Khan and (4) Muhammad Rafiq Gadi were convicted under sections 460/149, P.P.C. and were sentenced to imprisonment for life. (e) (1) Iftikhar Khan, (2) Naseer Ahmad Chheena, (3) Aziz Khan and (4) Muhammad Rafiq Gadi, accused were convicted under sections 302 (b)/149, P.P.C. and sentenced to death. on six counts. They were further directed to pay compensation under section 544‑A, Cr.P.C. in the sum of Rs.1,00,000 each on six counts to the legal heirs of the deceased and in case of default to undergo S.I. for six months. (f) (1) Iftikhar Ahmad (2) Naseer Ahmad Chheena, (3) Aziz Ahmad and (4) Rafiq Gadi were convicted under sections 324/149, P.P.C: and were sentenced to R.I. for 10 years each and also to payment of tine of Rs.50,000 each and in case of default in payment of tine to undergo S.I. for three months. (g) (1) Saeed Ahmad Chheena, (Z) Naseer Ahmad Chheena, (3) Mushtaq Khan, (4) Shahbaz Khan, (5) Razzaq Khan, (6) Mohsan Khan, (7) Ishtiaq Khan and (8) Aziz Khan were convicted under sections 302/ 149 read with section 120(b), P.P.C. and were sentenced to imprisonment for life on six counts and also to pay compensation under section 544‑A,. Cr.P.C. and in case of default to undergo S.I. for three months. (h) Basharat accused was convicted, under sections 3021109, P.P.C, and sentenced to imprisonment for life on six counts and to pay compensation under section 544‑A, Cr.P.C. amounting to Rs.50,000 and case of default to undergo S.I. for three months. (i) (1) Mohsan Khan, (2) Razzaq Khan and (3) Shahbaz Khan accused were convicted under section 342, P.P.C. and were sentenced to R.I. for one year. (j) (1) Iftikhar Ahmad Khan, (2) Naseer Ahmad Chheena, (3) Aziz Khan (4) Muhammad Rafiq Gadi, (5) Naseer Ahmad, (6) Mushtaq Ahmad Khan, (7) Raszaq Khan, (8). Shahbaz Khan, (9) Mohsan Khan, (10) Ishtiaq Khan and (11) Basharat were convicted under section 7 of the Anti Terrorism Act, 1997 and were sentenced to death.

63. As already mentioned in this judgment, the learned trial Court had formally charged 17 accused in this case. Besides them 10. accused were proclaimed offenders. Of them 3 accused were, allegedly killed in police encounter i.e. (1) Qaiser alias Pervaiz Rajput, (2) Mansha alias Doctor Javaid and (3) .Akram Rehmani. The remaining seven accused continued to be proclaimed offenders and who are (1) Ali Raza Khan, (2) Fazal‑ur‑Rehman Khan (3) Nasir Ahmad, (4) Munir Ahmad, (5) Shan (6) Qaiser Chheena and (7) Farooq alias Pomi.

64. Different defence counsel appeared on behalf of different appellants while the State was represented by the learned Special Public Prosecutor. Complainant's counsel also assisted the Court. Detailed arguments from both the sides were heard at length. The learned counsel for the appellants argued that during the trial almost all the P.Ws. effected improvements in their statements and this was done in order to remove the lacunas. The learned defence counsel argues that initially five accused were named in the F.I.R. while 13 culprits were described as unknown. However, when the alleged eye‑witnesses of the occurrence appeared before the Court during the trial, they named almost all the accused specifically. They have argued that as per the prosecution story, on 14‑4‑1998, at 10‑15 p.m., as many as 11 persons were present in the compound of Haveli .of Mahmood Akbar Khan in village Jandiala Sher Khan when 18 variously armed persons allegedly entered the compound of the, Haveli through a side door which was open and started indiscriminate firing with three types of weapons i.e. (1) Kalashnikoves, (2) Rifles .222 bore and (3) .12 bore guns. The victims who allegedly died at the spot or later in the. hospital were Mahmood Akbar Khan, Masood Akbar Khan, Sher Muhammad, Riasat Ali and Abdul Lateef. The two persons who were injured during the same occurrence were Aziz‑ur‑Rehman, S.D.O., WAPDA and Muhammad Sadiq. On 21‑4‑1998 Muhammad Sadiq expired in Mayo Hospital, Lahore. The accused who were nominated in the F.I.R. by Nasrullah, complainant, who is the maternal uncle of Mahmood Akbar Khan and Masood Akbar Khan deceased were (1) Naseer Chheena, (2) Munir Chheena, (3) Nasir Chheena, (4) Riasat and (5) Ashiq. The learned defence counsel argued that Iftikhar, one of the sons of Mushtaq Ahmad accused (who is the appellant in Criminal Appeal No.753 of 1999) is alleged to have participated in the occurrence while the other four sons of Mushtaq Ahmad are alleged to have participated in the conspiracy proceedings before the main occurrence which is alleged to have been hatched at the Dera of Saeed Chheena on 8‑4‑1998. Further allegation against Mushtaq Khan and his sons Shehbaz and Razzaq is that they had arranged for the transport for the assailants to the site of the occurrence by taking a wagon from one Arshad Pervaiz, P.W.16 on 14‑4‑1998. It has been argued that if the wagon was hired from the Adda to the last moment, this was not consistent' with the prosecution story. Further allegation against Shahbaz, Razzaq and Mohsan is that they had wrongfully confined P.W.16. They have argued that as per the prosecution story, P.W.17 Nasrullah, P.W.18 Moazzam and P.W.21 Taj Din had witnessed the occurrence, besides P.W.19 Aziz‑ur‑Rehman who is the injured P.W. P.W.20 Kamran claims to have been seen the assailants entering the Haveli of Mahmood Akbar Khan and coming out of it while standing outside an unconstrued house. Then there is the alleged 'dying declaration' of Sadiq deceased who. as per prosecution story had made the statement Exh.PEE in the Mayo Hospital', Lahore in which he had also implicated Iftikhar as having participated the occurrence.

65. The learned counsel for the defence have argued that the statement of Nasrullah P.W./Complainant cannot be believed because this witness was in a position to identify Iftikhar, if he had been actually present at the site. However, Iftikhar accused had not been nominated in the F.I.R. they have pointed out that P.W.17 admits that he had signed Exh.PA in token of its correctness. He claims to have made a supplementary statement before the Investigating Officer while no such supplementary statement exists any where nor a statement under section 161, Cr.P.C. can be treated as a statement supplementary to the original F.I.R. The learned defence counsel have argued that incorporation of the additional set of the accused persons in the Inquest reports cannot be treated as supplementary statements. The learned defence counsel further argued that P. W .21 Taj Din cannot be believed due to his enmity with Mushtaq Khan and his family; that the evidence furnished by Moazzam Khan P.W. is also not reliable as‑ he was not injured during the course of occurrence; that Kamran Khan P.W.20 also cannot be believed as there is sufficient evidence which makes his presence at the place of occurrence doubtful as lie is not resident of Jandiala Sher Khan nor he own any landed property there. He is also a nephew of the complainant and has failed to prove the ownership of the house which was allegedly under construction at the relevant time; that no respectable from the locality was associated with the recovery proceedings; that no report from the Forensic Science Laboratory was available on record to confirm as to whether the empties recovered from the site did match with the kalashnikovs: that the alleged dying declaration of Sadiq deceased cannot be treated as a piece of evidence in this case for the reason that the original document is not available even on the police file and the statement of Sadiq deceased had not been recorded by P.W.27 Arshad Mahmood, Inspector in his own handwriting; even the actual author of the said statement has not been produced as a P.W. and that the doctor who purportedly had given permission to record the statement had not been present throughout and had not certified that Sadiq deceased had remained in fit condition to make a long statement; that despite opportunity, no attempt was made to get the 'dying declaration' verified from an independent source such as a Magistrate; that on 15‑4‑1998 a similar document for obtaining permission from the doctor on duty was obtained in relation to Aziz‑ur‑Rehman P.W.19 who was also injured and was admitted in the same hospital. But no statement of Aziz‑ur‑Rehman P.W. was recorded though he was critically ill and could have died and the aforesaid fact creates doubt the authenticity of the alleged 'dying declaration' of Sadiq deceased.

66. About the alleged conspiracy, the learned defence counsel have argued that Nasrullah Khan P.W./complainant claims that information about the conspiracy was given to him by Mahmood Akbar Khan deceased himself a day prior to the occurrence whereas according to the contents of Exh. PA, this witness had been allegedly informed by Amer Ali etc. about the conspiracy on the day of occurrence; that Ramzan P.W.14 did not deny that it was Eid‑ul‑Azha on the‑day on which the conspiracy was allegedly hatched i.e. on 4‑8‑1998; That Ramzan P.W. had admittedly left the village and settled in Lahore about two years prior to the occurrence and that he was unable to produce any document that he owns any house in the village and that there is no explanation as to why he had not divulged the alleged conspiracy hatched on 8‑4‑1998 prior to this occurrence and even otherwise the type of the meeting allegedly held at the Dera of Saeed Chheena cannot be treated as a planning to kill; that no incriminating. evidence on record can support the conviction of Iftikhar having participated in the occurrence; that the motive as set up by the prosecution does not reach out to touch Mushtaq or any of his accused sons; that there was a simple explanation as to why Nasrullah . P.W. had made a supplementary statement to involve Mushtaq and his sons in this case and it was done because the local politics after the death of Mahmood Akbar Khan etc., would have shifted to Mushtaq and to his sons and thus in order to eliminate a potential political rival from the Pathan tribe, this effort was made to falsely implicate Mushtaq and his sons in this case.

67. The learned defence counsel have argued that in the F.I.R. the motive was described to the previous election and also the grievance of Saeed Chheena etc., about the occupation of their land by their rivals i.e. Waris, etc; that the story of the conspiracy had been hatched after the occurrence and that Waris who had allegedly gained the possession of the land which had been occupied by Saeed Chheena, etc. has not been produced as a P. W . ; that there was a complete break down of the electricity in the village and that at 10‑15 p.m., there was absolutely no light as the electricity had been restored at 10‑30 p.m. and hence at 10‑15 p.m. the alleged eye‑witnesses could not be in a position to identify the culprits; that although 13 culprits were described as unknown in the F.I.R. but no identification parade was held; that if Asif Khan and Aziz Khan accused were the Khala zad (cousins) of P.W.17, how could they be described as unknown in the F.I.R.; that it appears as if the prosecution had created a separate motive for every appellant/accused; that in fact there was no community of interest amongst the accused who belong to different brotherhoods; that Ashiq Ali and Riasat Ali who were specifically named in the F.I.R. as culprits have been acquitted and a number of appellants who had not been named in the F.I.R. have been convicted on capital charge; that the alleged crime empties were sent to the Forensic Science Laboratory on 5‑6‑1998 and as such there was no evidentiary value of the recovery of the crime empties from the spot; that P.W.19 Aziz‑ur‑Rehman who was an injured P.W. was the only independent eye witness in this case but he did not specifically name any accused in his statement; that a few persons armed with automatic weapons could have caused injuries to the deceased and the injured P.Ws. and it appears that the actual culprits had been done away with in the police encounters and that there is possibility that the prosecution had thrown a wider net to implicate as many persons in this case as possible; that Basharat Constable had been falsely implicated in this case although there was hardly any evidence, against him regarding his role in the conspiracy and that as the conspiracy allegedly hatched at the Dera of Saeed Chheena is not proved that whole story of the occurrence falls to the ground; that‑the presence of Nasrullah P.W. complainant is not shown anywhere in the site plan of the ‑occurrence and which clearly means that he was not actually present when the occurrence had taken place; that on the basis of the same evidence Ashiq and Riasat accused had been acquitted on the basis of which other accused have been acquitted by the learned trial Court; that it was a case of personal enmity against Mahmood Akbar Khan, M.N.A. of the actual culprits and that no one wanted to kill a Government servant to create a crucial situation for the Government or to create terror or panic amongst the public at large and as such there was no justification for‑ awarding death sentence to the appellants under section 7 of the Anti‑Terrorism Act, 1997; that Amir Ali who was the most important witness concerning the alleged conspiracy was neither sited nor examined as a P.W. and instead his son Ramzan was examined in that context as P.W.14, although the name of Ramzan aforesaid did not appear in the F.I.R.; that the accused joined together in this case belonging to different factions and many of them were inimical to each other but the prosecution created separate motives for them so as to rope in all the opponents in this single occurrence; that it, is not specified as to which of the accused had fired at which of the victims and the injuries are not specifically attributed. The learned defence counsel have argued that the appellants had been falsely implicated in this case either on account of political enmity or due to personal enmity and that the occurrence had taken place at night when there was no electricity and was darkness all around and so no person could be targeted and as such the appellants had been wrongly convicted and consequently they are all entitled to be acquitted in this case.

68. From the other side, the learned Special Public Prosecutor and also the learned counsel for the complainant have argued that the P. Ws. have proved this case to the hilt; that an F.I.R. is lodged only to set the machinery of law into motion and that in view of the latest pronouncements of the Honouable Supreme Court of Pakistan, the motive is wholly irrelevant for proving a crime. He has argued that P.W.14 hag fully proved the existence of conspiracy and that in the inquest reports every details of the occurrence and the names of the culprits had been mentioned and the doctor had signed every page of the inquest reports; that mention of exact time of occurrence of this magnitude which could o; easily described as 'massacre' and which had taker place before their eyes, could not be expected from the eye witnesses. Whether it was 10‑15 or 10‑30 p.m. or 10‑45 p.m., is. immaterial. However, admittedly, the S.D.O. namely Aziz‑ur‑Rehman/injured P.W. and the Line Superintendent (Abdul Lateef deceased) were .certainly present at the time of the occurrence and who are among the victims and according to the statement of Aziz-ur‑Rehman as P.W.19, the light had already been restored before this occurrence and there is no reason to disbelieve him in that respect; that the copy of the dying declaration of Sadiq which is Exh.PEE is a genuine document and which was primarily the statement' under section 161, Cr. P. C. and that no eye‑witness was required to sign any such statement under section 161, Cr.P.C.; that Ramzan P.W.14 and. his father had no enmity or ill‑will towards the accused persons; that Arshad Pervaiz alias Gulloo Badsha P.W. had never met Ramzan P. W.14 but in spite of it he fully supported the version of Ramzan P.W.14 and that the conspiracy is mentioned even in all the inquest reports; that the statement of P.W.20 Kamran Khan cannot be challenged; that his statement can be taken as a corroborative piece of evidence; that the injured had been taken to the hospital not by the police but by the P. Ws. and thus there could‑ no force in the argument that the prosecution story had been hatched in connivance with the Police; that all the accused had absconded after the occurrence but were apprehended subsequently, except those who are still P.Os. or those who had been killed in the police encounters; that the investigation had been conducted in an impartial manner and the recoveries of crime empties and also the recoveries of the weapons and the reports of the Forensic Science Laboratory provide sufficient incriminating evidence and that the prosecution witnesses have proved all the charges against the appellants to the hilt and that the learned trial Court had rightly convicted the appellants and as such, there was no justification for acceptance of any of the appeal of the convicts and which should, therefore, be accordingly dismissed.

69. We have carefully considered the arguments.

70. Admittedly only five accused has been specifically named in the F.I.R. i.e Naseem Chheena, Munir Chheena, Nasir Chheena, Riasat and Ashiq. However, mention was made in the F. I. R. of 13 other, unknown culprits. The incident on which this occurrence is based has been rightly described by the learned Special Public Prosecutor and the learned counsel for the complainant as 'Massacre' and there is no reasons to describe it otherwise. So far as the time of occurrence is concerned, it does not make any difference if the complainant had described it as 10‑15 p.m. Even if he had described it as 10‑00 p.m., even that it would not have made it unbelievable because at that there was no electricity. It is correct that as per evidence on record, toe electricity had been restored ^' 10‑30 p.m. However, there is no reason to believe that the occurrence had taken place before 10‑30 p.m. Faced with the situation in which this occurrence had taken place, no one would expect the complainant at that time to remember the exact time when the culprits had arrived there and had started firing. The Line Superintendent i.e. Abdul Lateef was killed in this very incident and Aziz‑ur Rehman, S.D.O. is himself an injured P.W. The very fact that in his statement as P.W.19 he has not named any accused specifically on the plea that the appellants were not known to him indicates that he is truthful and independent witness. He has clearly stated that the electricity had been restored before the occurrence had taken place. There is no reason to disbelieve him and as such one can reach a safe conclusion that before the occurrence had taken place, the electricity has been restored and thus there was light in the Haveli of Mahmood Akbar Khan deceased at the relevant time.

71. So far as the eye‑witness account of the occurrence is concerned, the same is furnished by Nasrullah Khan P.W.17, Moazzam, P.W.18 and P.W.21 Taj Din and the detail of which has already been mentioned above. P.W.20 Kamran had seen the culprits entering the Haveli and coming out of it while standing out side near an un constructed house. It is in the evidence that the statement of Sadiq deceased who was then in injured condition and admitted in the Mayo Hospital, Lahore had been recorded: by the Investigating Officer under section 161, Cr.P.C. and which is Exh.PEE. On the death of Sadiq, the said statement became a 'dying declaration.' It has been objected that the author of the said statement i.e. the person in whose handwriting it had been recorded had not been produced. However Arshad Mahmood, Police Inspector/P.W.27 deposed that he had submitted an application 'for seeking permission (of the doctor) to record the statement of Muhammad Sadiq, injured and which is Exh.PDD and the doctor had declared him tit to make statement and it was then that he recorded the statement of Sadiq which is Exh. PEE. It is correct that the person in whose handwriting the said statement was recorded has not been produced and as such we cannot place a total reliance on this dying declaration without sufficient corroboration. The corroboration in that respect is available in the form of statements of P.W.17, P.W.18 ad P.W.21.

72. In Exh.PA it had been stated by Nasrullah Khan, complainant that he had been informed by Ameer Ali etc., about the consultation/conspiracy of 8‑4‑1998 on the day of occurrence. The document Exh.P.A., however, indicates that Ramzan P.W. and his father Muhammad Amir Ali, were both allegedly present on 8‑4‑1998 when the conspiracy had taken place. The learned defence counsel have indicated that it was Eid‑ul‑Azha on the said day. Ameer Ali, the father of Ramzan has not been produced as a P.W. to corroborate the story of conspiracy narrated by Ramzan. It has not been explained as to why Ameer Ali and Ramzan had not informed Mahmood Akbar Khan deceased etc. or the complainant about the said conspiracy before the occurrence. if at all such a conspiracy had actually take place in their presence, as it was a very serious matter, they were not expected to keep quit 'about the same, till this occurrence ,dad actually taken place. If Ramzan P.W. could make a statement about said conspiracy during the investigation before the police and also during the trial before the Court, it is not understandable as to why he had not informed the deceased or the complainant about the same. As regards the allegation of rivalry between Mahmood Akbar Khan and Munawar Manj, it cannot be presumed that the accused person could have committed this offence for the sake of Munawar Many. It seems that in the F.I.R. mention of this motive was also made but subsequently no effort was made to prove that the motive for this occurrence was the election rivalry. The other motive described in the F.I.R. was the grievance Naseer Chheena, etc about the recovery of possession of the land by Waris, etc., with the help of Mahmood Akbar Khan and Masood Akbar Khan. The said motive may have existed because it directly relates to Saeed Chheena and Naseer Chheena, etc. It does not make any difference if Waris etc who had actually received the possession of land' have not been produced as P. Ws. in this case. Although it appears that the prosecution had not been able to produce sufficient evidence that on 8‑4‑1998 some conspiracy had actually taken place at the Dera of Saeed Chheena, even then the fact that Saeed Chheena got himself arrested in District Gujrat with the help of Basharat co‑accused is sufficient to indicate that he had actual conspired for this occurrence and the purpose of his arrest and detention at Gujrat was obviously to save himself of the legal consequences. Hence, although we are not convinced that any conspiracy had actually taken place on 8‑4‑1998 at 2‑00 p.m. at the Dera of Saeed Chheena, etc., yet we are convinced that Saeed Chheena was party to .the conspiracy. Since the accused who are proclaimed offenders are not presently before the Court we refrain from making any comment about their role in the alleged conspiracy. But so far as Saeed Chheena is concerned, it has been established that he did conspire to commit the offence in question and it was due to the said reason, as mentioned above, that he got himself arrested at Gujrat so as to escape the legal consequences of the occurrence. As such, from the evidence on record it is clear that Saeed Chheena accused/appellant was party to a criminal conspiracy to commit Qatl‑i‑Amd of Mahmood Akbar Khan and Masood Akbar Khan, etc. and therefore, he is clearly liable under section 120‑B, P.P.C. and the learned trial Court has rightly convicted him for the offence under section 120‑B, P.P.C. read with section 302, P.P.C. However, so far as Naseer Ahmed Chheena, Mushtaq Khan, Shehbaz Khan, Razzaq Khan, Mohsan Khan, Ishtiaq Khan and Aziz Khan are concerned, since the charge of hatching a criminal conspiracy is not separately established against them, therefore, their conviction on the charge under section 120‑B read with sections 302/149, P.P.C. cannot be sustained.

73. As regards Iftikhar Khan, Naseer Ahmad Chheena, Aziz Khan and Muhammad Rafiq Gadi accused it is established on record that they had formed an unlawful assembly alongwith their co‑accused since absconding and had committed the offence of rioting. It is also established on record that they has criminally trespassed into the house/Dera of Mahmood Akbar Khan deceased at night and had caused Qatl‑i‑Amd of the decease persons, besides attempting to commit Qatl of Aziz‑ur‑Rehman P. W. and as such has committed the offence under sections 460/149, P.P.C. The charge against them i.e. Iftikhar Ahmad, Naseer Ahmad Chheena, Aziz Khan and Muhammad Rafiq Gadi for attempting to commit Qatl‑i‑Amd of Aziz‑ur -Rehman P.W. is also proved beyond reasonable doubt. So far as charge under sections 302(b)/149, P.P.C. is concerned, the most important piece of evidence is the dying declaration of Muhammad Sadiq deceased which is Exh.PEE. The said dying declaration is fully corrob6rated by the statements of the eye‑witnesses. In his statement he‑ had mentioned as many as 14 culprits and one of whom had been described as unknown. Of the remaining 13 persons Nasir, Munir Ahmad, Qaiser Chheena, Ali Raza, Fazal‑ur‑Rehman and Shan are absconders and they will be obviously tried as and when arrested and brought before the Court for trial. Out of the remaining seven accused, three were killed in the police encounter i.e. Mansha alias Dr. Javed Akram Rehmani and Qaiser alias Pervaiz Rajput. The remaining accused who were named by Muhammad Sadiq deceased in his statement are Naseer Chheena, Iftikhar Ahmad, Aziz Khan and Rafiq Ahmed Gadhi. Of them Naseer Ahmad Chheena and Iftikhar Ahmad were allegedly armed with kalashnikoves at the time of the occurrence, Aziz Khan with gun .12 bore and Rafique Gadi with a rifle .222 bore. There also exists on the record the report of Forensic Expert which is Exh.P.2/1‑

4. The motive also existed for Naseer Ahmad Chheena etc. to commit the offence in question. However, it is necessary in every case to see up a motive. Even the most heinous crimes are some times committed without the existence of a motive. In this case the prosecution did set up a motive for Naseer Ahmed Chheena, etc. and has established it.

74. So far as the charge under sections 302(b)149, P.P.C. is concerned, the same stood clearly proved against Iftikhar Ahmad Chheena, Aziz Khan and Rafiq Gadi and thus they have been rightly convicted on the charge under sections 324/149, P.P.C. So far as the charge under sections 324/149, P.P.C. is concerned, in the light of the same evidence, as mentioned above, it stands established beyond reasonable doubt as against Iftikhar Ahmad, Naseer Ahmad Chheena, Aziz Khan and Rafiq Gadi accused for attempting to commit Qatl‑i‑Amd of Aziz ur‑Rehman P.W. and the learned trial Court had thus rightly convicted them on the said charge. However, as the remaining eye witnesses i.e. Nasrullah Khan, Moazzam Khan etc. were not injured during the course of the occurrence it cannot be assumed that the accused/appellants had attempted to commit Qatl‑i‑Amd of Nasrullah Khan, Moazzam Khan and Taj Din as well. Therefore, the finding of the learned trial Court to that extent cannot be upheld. However, as mentioned above, it stands established that the four accused/appellants mentioned above, had attempted to cause Qatl‑i‑Amd of Aziz‑ur‑Rehman P.W. and thus they have been rightly convicted on the said charge.

75. So far as Basharat accused/appellant is concerned although it appears on record that he had facilitated the 'detention' of Saeed Ahmad Chheena, his co‑accused in District Gujrat in a case under section 13 of the Arms Ordinance, yet it cannot be presumed that he was in anyway party to the criminal conspiracy to commit Qatl‑i‑Amd of the deceased persons or that he had in any way abetted his co‑accused to commit the offence in question, therefore, it is possible that Saeed Chheena accused might have narrated some other story before him and in that respect he might have helped him (to secure his arrest) due to some other reason. It cannot be perceived as to why Basharat accused/appellant would conspire or would instigate his co‑accused to cause Qatl‑i‑Amd of Mahmood Akbar M.N.A., etc. As such the conviction of Basharat accused/appellant on the charge under section 109, read with section 302, P.P.C., cannot be upheld and is liable to be set aside.

76. So far as the conviction of Mohsan Khan, Shehbaz Khan and Razzaq Khan accused on the charge under section 342, P.P.C. is concerned, there is no convincing evidence on record in that respect. There is hardly any justification for their conviction on the basis of the sole statement of Arshad Pervaiz alias Gulloo Badhsha P.W. as there is hardly any corroboration of his statement on the point of his illegal infringement.

77. So far as the charge under section 7 of the Anti‑Terrorism Act, 1997 is concerned, the learned trial Court has rightly convicted and sentenced Iftikhar Ahmad, Naseer Ahmad Chheena, Aziz Khan and Muhammad Raliq Gadi, accused/appellant on the said charge as they had committed a heinous and terrible offence by firing discriminately at Mahmood Akbar Khan and other deceased and that too at the Dera of Mehmood Akbar Khan who at the relevant time was the sitting M.N.A. from the area. The aforesaid accused/appellants had thus created panic and terror in the area and as such they, i.e. Iftikhar Ahmad, Naseer Ahmad Chheena, Aziz Khan and Muhammad Rafiq Gadhi were rightly convicted and sentenced under section 7 of the Anti Terrorism Act, 1997.

78. So far as Saeed Ahmad Chheena accused/appellant is concerned, admittedly he was at Gujrat and was in confinement at the relevant time. Although he is alleged to have abetted his co‑accused to cause (Qatl‑i‑Amd of the deceased yet, even according to the prosecution story he was not himself present at the time of the occurrence and thus his conviction under section 7 of the Anti‑Terrorism Act, 1997 cannot be upheld.

79. Now we come to Mushtaq Ahmad Khan, Razzaq, Shehbaz Khan, Mohsan Khan, Ishtiaq Khan and Bashrat. So far as the charge under section 7 of the Anti‑Terrorism Act, 1997 is concerned, the prosecution has not been able to prove the same against them. Basharat was admittedly not present at the time of the occurrence and was away at Gujrat. Names of Mushtaq Ahmad Khan, Razzaq Khan, Shehbaz Khan, Mohsan Khan and Ishtiaq Khan did not fin mention in the dying declaration (Exh.PEEE,) of Muhammad Sadiq deceased. As such it can be said that ‑none of the charges including the charge under section 7 of the Anti‑Terrorism Act, 1997 was proved beyond reasonable doubt against them i.e. against. Mushtaq Ahmad Khan, Razzaq Khan, Shahbaz Khan, Moshin Khan, Ishtiaq Khan and Basharat. (It may be mentioned here that Mushtaq Ahmad Khan accused is stated to have died in detention before his appeal came up for final hearing before this Court). However, as he had also tiled an appeal against his conviction, it appears appropriate that a finding about his involvement or otherwise in the occurrence be also given.

80. In view of the evidence discussed above, it is held that the prosecution was able to prove its case against Mushtaq Ahmad Khan (since dead) and also against Razzaq Khan, Shehbaz Khan, Mohsin Khan, Ishtiaq Khan and Basharat accused/appellants beyond reasonable doubt and hence their conviction by the learned trial Court and also the sentence awarded to them cannot be upheld.

81. Since the prosecution failed to establish its case beyond reasonable doubt against Riasat, Ashiq Ali, Muhammad Asif Khan, Akbar Gadhi, Muhammad Shafiq and Farooq son of Sadiq accused, therefore, they were rightly acquitted by the learned trial Court in this case. This criminal appeal filed by the State against their acquittal is thus liable to be dismissed.

82. In consequence of the above findings (1) Criminal Appeal No.750 of 1999 tiled by Shahbaz Ahmad Khan, Razzaq Ahmad Khan and Moshan Raza, (2) Criminal Appeal No.751 of 1999 filed by Ishtiaq Ahmad Khan, (3) Criminal Appeal No.752 of 1999 filed by Mushtaq Ahmad Khan and (4) Criminal Appeal No.832 of. 1999 to the extent of Basharat appellant, are accepted and the aforesaid six appellants are acquitted of all the charges in this case. So, they i.e. (1) Shehbaz Ahmad Khan, (2) Razzaq Ahmad Khan, (3) Mohsin Raza, (4) Ishtiaq Ahmad Khan and (5) Basharat, appellant shall be released if not required in connection with any otherwise case.

83. Criminal Appeal r No.753 of 1999 filed by Iftikhar Ahmad Khan accused/appellant and Criminal Appeal No.832 of 1999 to the extent of Aziz Ahmad Khan, Muhammad Rafique Gadhi, Naseer Ahmad Chheena and Saeed Ahmad Chheena is dismissed and their conviction is maintained. Sentence of death awarded to Iftikhar Ahmad Khan, Aziz Ahmad Khan. Muhammad Rafiq Gadhi and Naseer Ahmed Chheena appellants on six counts is upheld.

84. Conviction and sentence of death awarded to Saeed Ahmad Chheena appellant under section 7 of the Anti‑Terrorism Act, 1997 is set aside, but his conviction on the charge under section 120‑B read with section 302, P.P.C. and the sentence of imprisonment for. life on six counts and direction for payment of Rs.50,000 on each counts as compensation under section 544‑A, Cr.P.C. and in case of default S.I. for six months on each count, is upheld. The sentences of imprisonment awarded to him shall run concurrently and he be given the benefit under section 382‑B, Cr. P.C.

85. Criminal Appeal No.972 of 1999 (State v. Riasat and others) filed by the State against acquittal of six accused i.e. Riasat, etc. is dismissed.

86. The sentence of death awarded to Saeed Ahmad Chheena, Mushtaq Ahmad Khan, Razzaq Khan, Shahbaz Khan, Mohsin Khan, Ishtiaq Khan and Basharat appellants is not confirmed and Murder Reference No.332 T of 1999 to their extent is answered in the negative.

87. Sentence of death awarded to Iftikhar Ahmed Khan, Naseer Ahmad Chheena, Aziz Khan and Muhammad Raique Gadhi, appellants is affirmed and Murder Reference to the extent of these four appellants is answered in the affirmative. N.H.Q./S‑497/L Order accordingly.