1. In the above captioned two criminal appeals, leave was granted by the Court vide its order dated 12.1.2010, which reads as under:
“As many as 27 persons were charged and tried by the Judge Anti Terrorism Court, Faisalabad, on 6.2.2006, for various offences, including those under Sections 302(b), 324, 295-A, 295-B and 295-C PPC. For the offence under Section 295-C, only the accused, Shahbaz Ahmed, was convicted and sentenced to death and the remaining were awarded imprisonment for life. They all were convicted and sentenced to imprisonment for life of each of the offences under Sections 302(b), 295-B PPC. They were further convicted and sentenced for various other offences, namely, under Sections 295-A, 148, 186, 353 PPC as well as under Sections 7(a) and 9 of the Anti Terrorism Act, 1997. One of the co-accused was a juvenile and was tried separately. On appeal, the Lahore High Court set aside the conviction and sentences of all the accused under Section 295-C PPC whereas it upheld their conviction and sentences for the remaining offences.
2. Javed Iqbal and Tahir Mehmood, have filed Criminal Petition No. 692 of 2009 and the remaining convicts have filed Jail Petition No. 842 of 2009, out of them Petitioners No.6, 11, 12, 13, 15, 16, 17, 21 and 22 were represented by a private counsel. The remaining petitioners were not preresented.
3. The case against the petitioners was that they had proclaimed one of them, Shahbaz Ahmed, as “Imam Mehdi” and had invited the people to follow him and warned that if he was resisted, the country as a whole and the City of Faisalabad in particular would face destruction. To further project their view point, the petitioners along with others started a procession in motorcars and proceeded towards the Motorway. It is alleged that the participants of the procession were duly armed. That the police was informed about this incident, who proceeded to stop the procession. According to the police, some of the persons in the procession started firing at the police personnel stationed at the Motorway Interchange of Faisalabad. That when the police party headed by a Deputy Superintendent of Police, reached the spot, the processionist resorted to firing upon them, injuring four of their compansions, namely, Navid alias Nazir Tahir Ahad, Babar Shjafi and Abid. Babar Shafi, later on passed away. The petitioners were thereafter arrested, tried and convicted as stated above.
4. We have heard Dr. Khalid Ranjha, Sr.ASC in Criminal Petition No. 692 of 2009 and Mr. Inayatullah Cheema, ASC in Jail Petition No. 842 of 2009. After hearing arguments of the learned counsel, we grant leave to appeal to re-examine the evidence in the light of contentions raised, particularly whether:
(i) It was not from the firing of the police party that the petitioners’ companions were injured, who received firearms injuries on the front of their bodies, and when none from the police party was injured in the incident;
(ii) All the accused, 27 in numbers, could be convicted for the above stated offences as there was nothing on record that they shared common intention for the commission of each of such offences; and
(iii) Was it possible for the police party to identify each of the 27 petitioners for the commission of the crime alleged to have been committed by them.”
2. Briefly stated, facts leading to these criminal proceedings are that on 15.12.2005, FIR No.1081/2005, under sections 7, Anti Terrorism Act, 1997, 16, Maintenance of Public Order Ordinance, 1960, 427, 324, 353, 295-B, 295-C, 149, 186, 146, 148, Pakistan Penal Code and 13, of the Pakistan Arms Ordinance, 1965, was registered by complainant Malik Rasheed Ahmed, DSP City at P.S Nishatabad, District Faisalabad with the following assertions:
That on 15.12.2005 at about 12:00 noon, DSP/SDPO City, Faisalabad received a wireless message that 25/30 persons, duly armed with firearm weapons and making aerial firing, were coming towards Sargodha Road from Nishatabad bridge. They were holding flags and banners and were making announcement of emergence of Imam Mehdi on mega phone. On receipt of complaint, he along with three other Police officials approached them at Bolay-de-Juggi, near Telephone Exchange, where he asked them to stop firing, whereupon they raised slogans that Imam Mehdi has emerged, who is accompanying them, and all nation should embrace him till 4:00 pm., otherwise they will destroy the whole Country. They started firing at the Police party, who escaped by taking shelter behind their official vehicle. Thereafter they started proceeding ahead and kept on making aerial firing. The incident was reported to the City Control, and more Police contingents were called to control the situation. One Muhammad Younas son of Noor Muhammad sustained firearm injury at the hands of these persons near Haji Camp, which caused panic and fear in the locality. The accused persons made indiscriminate firing at Motorway Toll Plaza, Kamalpur, due to which all the officials ran away from there and accused persons entered Motorway and after covering a distance of about two furlongs, when they saw the Police party approaching them, they deboarded from their vehicles and in a confusion started firing at Police party, as a result whereof 3/4 co-accused persons received injuries. A passenger bus was also made hostage by them. At this spot they entered into negotiation with the Police, during which accused Shahbaz Ahmed, the self proclaimed Imam Mehdi, made derogatory remarks against the Holy Prophet Hazrat Muhammad (PBUH), and demanded that injured co-accused may be shifted to hospital. After the negotiations, following a strategy, all the accused persons were apprehended and crime weapons, as detailed in the recovery memo, were recovered from them. Moreover, crime empties were also recovered from different places on their route. The case was accordingly registered against them.
3. After investigation of the crime, 27 accused named in the FIR were set up for trial before the Special Judge ATC, Faisalabad, where they were accordingly charged for the said offences, to which all of them pleaded not guilty and claimed trial. The trial of the appellants was, therefore held, during which eighteen prosecution witnesses were examined and documents Ex-PD to Ex-PXX were produced by the prosecution, which amongst others contained mushirnamas of recovery of eight 8mm rifles, one 0.12 bore pistol, eight 0.30 bore pistols and one chhuri, being alleged crime weapons. After the completion of prosecution evidence, section 342, Cr.P.C, statements of all the accused were recorded before the trial Court. However, none of them offered to examine himself under section 340(2), Cr.P.C, nor any one of them except Shahbaz asked to lead evidence in defence before the trial Court. At the conclusion of trial, arguments were heard and vide judgment dated 06.2.2006, appellant Shahbaz Ahmed, upon his conviction, was awarded the sentences.
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