IN THE SUPREME COURT OF PAKISTAN

(APPELLATE JURISDICTION)

PRESENT:
MR. JUSTICE JAMAL KHAN MANDOKHAIL
MS. JUSTICE MUSARRAT HILALI
MR. JUSTICE MALIK SHAHZAD AHMAD KHAN

Criminal Petition Nos. 260-L & 275-L of 2015

(On appeal against the judgment dated 28.01.2015 passed
by the Lahore High Court, Lahore in Criminal Appeal Nos.
1202/2010, 1245/2010 and Capital Sentence Reference
No. 33-T/2010)

Abdul Hayee & Abdullah @ Ghazali (In Cr.P. 260-L/2015)

(To the extent of petitioner Abdullah @ Ghazali,
Cr.P. 260-L/2015 stands partly abated on
account of his death vide our separate order of
even date)

Saleem Zaman (In Cr.P. 275-L/2015)

…Petitioner(s)
Versus
The State etc (In both cases)
…Respondent(s)
For the Petitioner(s): Mr. Munir Ahmed Bhatti, Sr. ASC

For the State: Mirza Abid Majeed, DPG

Date of Hearing: 21.10.2024

…
JUDGMENT

MALIK SHAHZAD AHMAD KHAN, J.-Abdul Hayee,

Saleem Zaman, petitioners and Abdullah alias Ghazali, co-

accused/co-convict (since died) were tried by the learned District &

Sessions Judge / Special Judge Anti Terrorism Court, Sargodha, in

case FIR No. 30 dated 07.02.2009 under Sections

302/396/440/412 PPC read with Section 7 of the Anti Terrorism

Act, 1997 and Sections 3/4 of the Explosive Substance Act, 1908,

registered at Police Station Wan Bhachran, District Mainwali. The

learned Trial Court vide its judgment dated 04.05.2010 convicted

Criminal Petition Nos. 260-L & 275-L of 2015
2

and sentenced the petitioners and Abdullah alias Ghazali co-

accused/co-convict (since died), as under:-

Under Sections 302(b)/149 PPC

Death sentence to each on eight counts along with
compensation of Rs.200,000/- each to be paid to the legal
heirs of each deceased or in default thereof to further
undergo six months’ SI each on each count.

Under Sections 440/149 PPC

To undergo 05 years rigorous imprisonment each with fine of
Rs.20,000/- each or in default whereof to further undergo 03
months simple imprisonment each.

Under Section 148 PPC

To undergo 03 years rigorous imprisonment each with fine of
Rs.20,000/- each or in default thereof to further undergo 03
months simple imprisonment each.

Under Section 3 of the Explosive Substance Act, 1908

Death sentence to each.

Under Section 7(a) of the ATA, 1997 read with Section

149 PPC
Death sentence to each with fine of Rs.50,000/- each or in
default thereof to further undergo 06 months simple
imprisonment each.

Under Section 412 PPC

Only Abdullah @ Ghazali, co-accused/co-convict (since died)
was convicted under Section 412 PPC and sentenced to
undergo 10 years rigorous imprisonment with fine of
Rs.20,000/- or in default whereof to further undergo 03
months simple imprisonment.

2. In appeal, the learned High Court upheld the judgment

of the learned Trial Court.

3. As per contents of the FIR on 7.2.2009 at about 3.30

A.M., Khalid Mahmood, Inspector/Complainant/SHO, PS Wan

Bhachran District Mianwali, alongwith Ghulam Mohammad C-255,

Nasrullah C-1348 and driver Ahmad Khan C-256 was present on

official vehicle No.3812-MIB at Sargodha-Mianwali Road near

village Pakka Sandanwala in connection with patrolling duty and

Criminal Petition Nos. 260-L & 275-L of 2015
3

was heading towards police Check Post Qudratabad. In the

meanwhile, he heard the report of blast from the side of police

Check Post Qudratabad, whereupon he (complainant) along with

other police personnels reached the above-mentioned Check Post

and saw that police officials namely Yasir Arfat C-6352 and

Mohammad Ilyas C-6341 were lying dead at the spot outside the

building of the check post whereas, the building of police Check

Post had completely collapsed due to the bomb blast. It was

further stated in the FIR that the dead bodies of Sher Khan ASI,

Zafar Iqbal 6129-HC, Ghulam Abbas C-6390, Bahadur Khan C-

1046, “Razakar” Ghulam Shabbir and Sajawal Khan were also

lying underneath the debris of the building of the Check Post. It

was also stated that the unknown terrorists had committed the

occurrence with the help of firearms and demolished the building

of the police post with bomb blast, whereafter, the unknown

accused had also taken away with them a rifle G-III along with

three magazines and 60 live cartridges and a rifle MP-5 along with

two magazines and 56 cartridges. On the complaint of Khalid

Mehmood, Inspector/SHO the above-mentioned FIR was lodged

against unknown accused.

4. After registration of FIR on the same day two eye-

witnesses namely Fateh Sher (PW-15) and Alam Khan (PW-16)

appeared before the police and made their statements that they

had witnessed the occurrence which was committed by seven (07)

unknown accused. During the investigation of the case the

petitioners were arrested in this case under Section 54 Cr.P.C.

whereafter they were identified in the identification parades by the

Criminal Petition Nos. 260-L & 275-L of 2015
4

above-mentioned eye-witnesses. The petitioners also led to the

recoveries of weapons of offence. After completion of investigation

report under Section 173 Cr.P.C. was submitted before the learned

trial court. The learned trial court after completion of trial

convicted and sentenced the petitioners as mentioned and detailed

above.

5. It is contended by learned counsel for the petitioners

that the petitioners were not named in the FIR, which was lodged

against unknown accused; that FIR was registered with

considerable delay from the occurrence but a wrong time regarding

registration of the FIR has been mentioned in the relevant column

of the FIR in order to show that the FIR was promptly lodged; that

the name of any eye-witness was also not mentioned in the

contents of the FIR; that Fateh Sher (PW-15) and Alam Khan (PW-

16) were subsequently introduced as eye-witnesses of the

occurrence but the conduct of both the above-mentioned eye-

witnesses is highly unnatural because they claimed that they had

seen the occurrence of a shocking and heinous offence regarding

the murders of 08 innocent police employees through firing and

bomb blast in a police post but even then they did not report the

matter to the police and went to Chiniot to purchase a buffalo; that

both the above-mentioned eye-witnesses were not residents of the

area where the occurrence took place and, as such, they are

chance witnesses and as they could not prove the reason of their

presence at the spot at the relevant time, therefore, their evidence

is not reliable; that identification parades of the petitioners were

also conducted in violation of the law/rules on the subject because

it was a joint identification parade of two accused namely Abdullah

Criminal Petition Nos. 260-L & 275-L of 2015
5

alias Ghazali (since died) and Saleem Zaman, petitioner, whereas

no specific role during the occurrence was assigned to Abdul

Hayee, petitioner by the alleged eye-witnesses at the time of his

identification parade, therefore, identification of the petitioners

during their identification parades by the prosecution eye-

witnesses carries no value in the eye of law; that the alleged

recoveries of the weapons of offence were planted against the

petitioners and as the said recoveries were not put to the

petitioners in their statements recorded under Section 342 Cr.P.C.,

therefore, the same were rightly discarded by the learned High

Court in paragraph No. 15 of the impugned judgment; that there

was no motive with the petitioners to commit the alleged offence;

that the petitioners are previous non-record holders and they have

falsely been implicated in this case due to the reason that Amir

Hayat who was Brother-in-law of Saleem Zaman, petitioner was

illegally detained by the local police, therefore, the learned Chief

Justice of Lahore High Court after releasing him from custody also

observed that he can get a case registered against police officers

and on account of the said grudge the Police has falsely implicated

the petitioners in this case; that the prosecution has miserably

failed to prove its case against the petitioners beyond the shadow

of doubt, therefore, leave may be granted in these petitions and the

petitioners may be acquitted from all the charges while setting

aside the impugned judgments of the foras below.

5. On the other hand, it is contended by the learned

Deputy Prosecutor General that the FIR was promptly lodged in

this case, which rules out the possibility of any consultation or

deliberation; that although the petitioners were not named in the

Criminal Petition Nos. 260-L & 275-L of 2015
6

FIR but soon after the registration of FIR, Fateh Sher (PW-15) and

Alam Khan (PW-16) appeared before the Police and made their

statements that they had seen the occurrence and they fully

implicated the petitioners in this case; that the petitioners were

duly identified by the above-mentioned eye-witnesses during the

identification parades, which were held strictly in accordance with

the law/rules on the subject; that the petitioners could not

establish any mala fide for their false involvement in this case by

the above-mentioned Fateh Sher (PW-15) and Alam Khan (PW-16)

who had no enmity with the petitioners; that the prosecution case

against the petitioners was further corroborated by the recoveries

of weapons of offence from the petitioners and positive reports of

the Forensic Science Laboratory but the said recoveries have

wrongly been disbelieved by the learned High Court in the

impugned judgment; that the medical evidence has also fully

supported the ocular account of the prosecution; that the

petitioners committed brutal murders of as many as 08 innocent

police employees, therefore, they do not deserve any leniency in

their sentences; that the prosecution has proved its case against

the petitioners beyond the shadow of any doubt, therefore, leave to

appeal may be refused and these petitions may be dismissed.

6. Arguments heard. Record perused.

7. It is true that the occurrence of this case is very

shocking and brutal wherein as many as 08 police employees of

Police Station Wan Bhachran, District Mianwali were murdered

through firing and bomb blast. We are also conscious of the fact

that overwhelming majority of the employees and officers of the

police department have rendered countless sacrifices to maintain

Criminal Petition Nos. 260-L & 275-L of 2015
7

law and order in the country and we fully recognize their sacrifices.

We have a lot of respect for the police department on account of

above-mentioned reasons but needless to mention here that it is a

Court of law and we have to decide this case on the basis of

evidence available on the record despite of our sympathies for the

families of the deceased police employees of this case. We,

therefore, proceed to evaluate the prosecution evidence on merits

in order to determine that as to whether or not the prosecution has

proved its case against the petitioners beyond the shadow of doubt.

8. The occurrence in this case took place on 07.02.2009

at 03:30 AM (night). As per contents of the FIR, the matter was

reported at Police Station Van Bhachran, District Mianwali by

Khalid Mehmood, Inspector/complainant (PW-18) on the same

night at 04:00 AM and the formal FIR was also statedly chalked

out on the same night i.e. on 07.02.2009 at 04:30 AM. It is

noteworthy that during the occurrence of this case the building of

Police Post Qudratabad District Mianwali collapsed due to the

bomb blast and the names of those police employees whose dead

bodies were still lying underneath the debris of the building were

also mentioned in the complaint of Malik Khalid Mehmood,

Inspector/complainant (PW-18), which complaint was sent to the

Police Station within 30 minutes from the occurrence, for

registration of the FIR. Malik Khalid Mehmood,

Inspector/complainant (PW-18) has stated in his examination-in-

chief that when he reached at the spot, he found that the building

of the above-mentioned Police Post had collapsed because of the

bomb blast and the dead bodies of the police employees were lying

underneath the debris. He further stated that he first arranged a

Criminal Petition Nos. 260-L & 275-L of 2015
8

weightlifter/Crain (for removal of the debris and recovery of dead bodies) and

also completed other proceedings at the spot whereafter, he sent

the complaint for registration of FIR. Relevant part of his statement

in this respect is reproduced hereunder:-

“I also saw that building had collapsed because of the

blast. Debris was lying scattered. The dead bodies of
police employees were underneath the debris. I
arranged for weight lifter (Crain) and necessary
message were onwarded to the high-ups of the police.
After receiving the message DPO/SDPO concerned
reached at the spot along with their subordinates.
Debris was removed and dead bodies of six other police
persons were brought out. I had prepared injuries
statements and inquest reports regarding the dead
bodies and dispatched the same through Nasrullah
constable and other for autopsy. After this I prepared
complaint (Ex. PLL) which was handed over to
Nasrullah constable for registration of case where
formal FIR (Ex. PLL/1) was registered on the same
day.”

It is evident from the perusal of the above-mentioned

statement of Malik Khalid Mehmood, Inspector/complainant (PW-

18) that the dead bodies of 06 police employees were lying

underneath the debris of the building, which collapsed due to the

bomb blast. A weightlifter (crane) was arranged for removing the

above-mentioned debris of the building and for recoveries of dead

bodies. A message was also sent to the DPO/SDPO concerned, who

reached at the spot and thereafter the debris were removed and the

dead bodies of 06 police employees were brought out from

underneath the debris. The complainant then prepared the injury

statements and inquest reports regarding the dead bodies and

dispatched all the dead bodies through Nasrulalh, constable and

then, the complaint (Ex.PLL) was sent for registration of FIR

(Ex.PLL/1). It is, therefore, clear that a lot of time must have been
Criminal Petition Nos. 260-L & 275-L of 2015
9

consumed in arranging the weightlifter (crane) and removing the

debris of the building and bringing out the dead bodies of 06 police

persons from underneath the said debris and thereafter in

preparation of the injury statements and inquest reports of the

said dead bodies, and all these proceedings were not possible to

have been completed within a period of 30 minutes as claimed by

the prosecution. The names of the six (06) police employees whose

dead bodies were still lying underneath the debris of the building

were also mentioned in the complaint (Ex-PLL) which was statedly

sent to the police station for registration of FIR within 30-minutes

of the occurrence. It is, thus evident that the FIR was not lodged at

the given time mentioned in the relevant column of the FIR rather

the same was registered with a considerable delay but a wrong

time of registration of the FIR has been mentioned in its relevant

columns to show the promptness of the FIR.

9. It was argued by the learned DPG that as the PWs had

no enmity with the accused, therefore, their evidence cannot be

discarded but it is by now well settled that absence of enmity of the

witnesses with the accused does not mean that they should be relied

upon blindly without determining that as to whether their evidence

was trustworthy or the same was inherently unreliable. Reference in

this context may be made to the cases of Haroon v. State (1995

SCMR 1627) and Muhammad Iqbal v. State (1984 SCMR 930).

10. We have also perused the contents of the FIR

(Ex.PLL/1) and noticed that Malik Khalid Mehmood,

Inspector/complainant (PW-18) stated that on the night of

occurrence i.e. on 07.02.2009 at 03:30 AM, he (complainant) along

Criminal Petition Nos. 260-L & 275-L of 2015
10

with other police employees was present on a patrolling duty near

village Sandanwala at Sargodha-Mianwali Road and in the

meanwhile he heard the report of firing and blast from the side of

Police Check Post Qudratabad, whereupon, he along with other

police employees reached at the above-mentioned Check Post and

saw that the dead bodies of Yasir Arafat, constable and

Muhammad Ilyas, constable, were lying outside the above-

mentioned police post. He also noticed that the building of Check

Post had collapsed due to bomb blast and inside the said building,

dead bodies of Sher Khan ASI, Zafar Iqbal Head Constable,

Ghulam Abbas, Bahadur Khan constables, Ghulam Shabbir and

Sajawal Khan volunteers, were lying under the debris of the

building. He further alleged that the arms and ammunition from

the above-mentioned police post were also found to be robbed by

the unknown accused. The name of any witness who had seen the

occurrence was not mentioned in the contents of the FIR. Likewise,

it was not stated therein that how many accused participated in

the occurrence and what were their descriptions. However,

according to the persecution case on the same day, Fateh Sher

(PW-15) and Alam Khan (PW-16) appeared before the Police and

claimed that they had witnessed the occurrence. As mentioned

earlier, the occurrence of this case took place on 07.02.2009 at

03:30 AM but the above-mentioned witnesses stated that they

appeared before the Police on 07.02.2009 at 01:00 PM. They

claimed that they saw 07 unknown accused persons while carrying

firearms, who committed the murders of 08 police employees by

firing and blew Police Post Qudratabad through a bomb blast.

Later on, the said witnesses also identified the petitioners during
Criminal Petition Nos. 260-L & 275-L of 2015
11

the identification parades. It is noteworthy that the names of both

the above-mentioned eye-witnesses were not mentioned in the FIR.

We have also observed that the conduct of the said eye-witnesses

was highly unnatural because according to their statements they

had witnessed the occurrence of a shocking, brutal and heinous

offence of the murders of 08 innocent police employees through

firing and bomb blast but they stated that instead of reporting the

matter to the police they went to Chiniot to purchase a buffalo.

Alam Khan (PW-16) admitted during his cross-examination that

one of the deceased police employee of this case namely Sher

Khan, ASI was his son-in-law whereas Fateh Sher (PW-15) has also

admitted during his cross-examination that another deceased

police employee of this case namely Bahadar Khan, constable, was

his co-villager but even then they both did not report the matter to

the police and went to Chiniot to purchase a buffalo. The relevant

parts of their statements in this respect are reproduced hereunder

for ready reference:-

Alam Khan (PW-16)

“It is correct that Sher Khan ASI was my son-in-law
who had died in the occurrence.”
Fateh Sher (PW-15)
Anyhow Bahadur Khan mentioned above constable
was my co-villager.”

Fateh Sher (PW-15) further conceded during his cross-

examination that there were many police stations in between the

place of occurrence and Chiniot but he did not disclose the above-

mentioned fact to any police officer or official. The relevant part of

his statement in this respect reads as under:-

“There are many police stations in between the place of

the occurrence and Chiniot but we did not disclose the
above fact to any police officer or official nor we talked
about it with any other person.
Criminal Petition Nos. 260-L & 275-L of 2015
12

…………………………………………………………………….
…………………………………………………………………….

It is correct that there are many barriers and pickets of

police upto Chiniot from the place of occurrence.”

He further stated that his statement was recorded by

the Police on the day of occurrence at 01:00 PM but he had not

mentioned any reason of delay in his above-referred statement.

Likewise, Alam Khan (PW-16) also stated that he had not assigned

any reason of delay in making his statement before the Police. The

relevant parts of the statements of Fateh Sher (PW-15) and Alam

Khan (PW-16) read as under:-

Fateh Sher (PW-15)

“My statement was recorded by police at 01:00 pm on
the day of occurrence. It is correct that my reason of
delay in making statement has not been mentioned in
my statement before police.”

Alam Khan (PW-16)

“The Police has not recorded reason of delay in making
my statement nor I had assigned the same.”

11. It is further noteworthy that the occurrence of this

case took place at Police Check Post Qudratabad of Police Station

Van Bhachran, District Mianwali but both above-mentioned eye-

witnesses namely Fateh Sher (PW-15) and Alam Khan (PW-16)

were not residents of the area where the occurrence took place.

Fateh Sher (PW-15) was resident of village Gulmirri, District

Mianwali, whereas Alam Khan (PW-16) was resident of Musa Khan,

District Mianwali. Fateh Sher (PW-15) stated during his cross-

examination that his residence was at a distance of 25/26

kilometers from the place of occurrence, whereas the residence of

Alam Khan (PW-16) was at a distance of 32/33 kilometers from the

Criminal Petition Nos. 260-L & 275-L of 2015
13

said place. Likewise, Alam Khan (PW-16) also conceded during his

cross-examination that his residence was at a distance of 25 miles

from the place of occurrence. The relevant parts of their statements

are reproduced hereunder:-

Fateh Sher (PW-15)

“My place of residence may be at a distance of 25/26
kilometers from the place where I had seen the accused
standing. The residence of Alam Khan the other witness
is at a distance of 32/33 kilometers from the place of
occurrence.”

Alam Khan (PW-16)

“My place of residence is at a distance of about 25 miles
from the place of occurrence where I saw the
occurrence.”

It is, therefore, evident that both the above-mentioned

eye-witnesses of the prosecution were not residents of the place

where the occurrence took place and, as such, they were chance

witnesses. In order to justify their presence at the spot at the odd

hours of night i.e. 03:30, AM they stated that on the relevant date

and time they were going to Chiniot to purchase a buffalo and on

their way when they reached at the Police Post Qudratabad, they

witnessed the occurrence and thereafter they proceeded to Chiniot

for the above-mentioned purpose. No receipt of the cattle market

Chiniot was produced by the above-mentioned eye-witnesses

regarding purchase of any buffalo from the said market in order to

justify the reason of their presence at the spot on the night of

occurrence rather they made an excuse that they did not purchase

any buffalo from Chiniot on the above-mentioned day. It is further

noteworthy that Alam Khan (PW-16) has mentioned his age as 80

years while making his statement before the learned Trial Court.

He further conceded during his cross-examination that he being an

Criminal Petition Nos. 260-L & 275-L of 2015
14

old person was not doing any work and used to remain in his

house. The relevant part of his statement in this respect reads as

under:-

“It is correct I being an old person do not do any work

and remain in the house.”

The above-mentioned prosecution eye-witnesses have

also conceded that during investigation they did not produce any

person from Chiniot who was visited by them in order to purchase

a buffalo on the relevant day. Under the circumstances, the reason

given by the above-mentioned chance witnesses for their presence

at the spot at the time of occurrence has not been established in

this case, hence, it is not safe to rely upon their evidence.

Reference in this respect may be made to the cases of Mst. Sughra

Begum Vs. Qaiser Pervez (2015 SCMR 1142), Mst. Mir Zalai v.

Ghazi Khan and others (2020 SCMR 319), G.M. Niaz v. The State

(2018 SCMR 506), Muhammad Ali Vs. The State (2015 SCMR 137),

Muhammad Irshad vs. Allah Ditta and others(2017 SCMR 142),

Sufyan Nawaz and another vs. The State and others (2020 SCMR

192).

In the case of “Mst. Sughra Begum” supra, this Court held

as under:-

‘14. A chance witness, in legal parlance is the one who

claims that he was present on the crime spot at the fateful
time, albeit, his presence there was a sheer chance as in the
ordinary course of business, place of residence and normal
course of events, he was not supposed to be present on the
spot but a place where he resides, carries on business or
runs day to day life affairs. It is in this context that the
testimony of chance witness, ordinarily, is not accepted
unless justifiable reasons are shown to establish his
presence at the crime scene at the relevant time. In normal
course the presumption under the law would operate about
Criminal Petition Nos. 260-L & 275-L of 2015
15

his absence from the crime spot. True that in rare cases, the
testimony of chance witness may be relied upon, provided
some convincing explanations appealing to prudent mind for
his presence on the crime spot are put forth, when the
occurrence took place otherwise, his testimony would fall
within the category of suspect evidence and cannot be
accepted without a pinch of salt.’

In the case of “Mst. Mir Zalai” supra, while disbelieving

the evidence of chance eye-witnesses this Court has observed as
under:-

“The circumstances in which the FIR had been lodged in this

case were quite suspicious and the eye-witnesses produced
by the prosecution before the trial court were admittedly
chance witnesses who had failed to establish the stated
reason for their presence with the deceased at the relevant
time”.

12. As mentioned earlier, the names of the prosecution

eye-witnesses namely Fateh Sher (PW-15) and Alam Khan (PW-16)

were not mentioned in the FIR. Fateh Sher (PW-15) categorically

stated during his cross-examination that they (PWs) stayed near

the place of occurrence for about 10 minutes. The complainant of

the case namely Malik Khalid Mehmood, Inspector/complainant

(PW-18) stated that on the night of occurrence, he was present in

his official vehicle at Sargodha Mianwali road on a patrolling duty,

when he heard the report of firing and bomb blast from the side of

Police Check Post Qudratabad whereupon, he reached at the said

place within 2/3 minutes but he did not see Alam Khan and Fateh

Sher PWs at the spot. The relevant parts of the statements of Fateh

Sher (PW-15) and Malik Khalid Mehmood, Inspector/complainant

(PW-18) read as under:-

Fateh Sher (PW-15)

“We stayed near the place of occurrence for about 10
minutes on the road which is a busy road.”

Malik Khalid Mehmood, Inspector/complainant

(PW-18)
Criminal Petition Nos. 260-L & 275-L of 2015
16

“I heard sound of blast at Adda Pakka Sandanwala,

which is about 1 to 1 ½ kilometer away from
Qudratabad Check Post. I reached at scene of
occurrence within two to three minutes.

………………………………………………………………………
………………………………………………………………………

When I reached at scene of occurrence Alam Khan and

Fateh Sher PWs were not present.”

(Bold and underling is supplied for emphasis)

It is, therefore, evident that had Fateh Sher (PW-15)

and Alam Khan (PW-16) witnessed the occurrence and stayed at

the spot for 10-minutes, as stated by Fateh Sher (PW-15), then

they should have been seen by Malik Khalid Mehmood,

Inspector/Complainant (PW-18), who reached at the spot within

two to three minutes from the occurrence. It is, therefore, clear

that the above-mentioned eye-witnesses were actually not present

at the place of occurrence at the relevant time and the story of

their presence at the spot at the time of occurrence was

subsequently concocted to strengthen the weak prosecution case of

an unseen occurrence.

13. Insofar as identification of the petitioners by the

above-mentioned eye-witnesses during identification parades is

concerned, we have noted that the identification parade of Saleem

Zaman, petitioner and Abdullah alias Ghazali co-accused (since

died) was jointly held. In this respect, the statement of Khuda Yar,

Judicial Magistrate (PW-17) who conducted the identification

parade of Saleem Zaman, petitioner and Abdullah alias Ghazali,

co-accused (since died) is reproduced hereunder:-

Criminal Petition Nos. 260-L & 275-L of 2015
17

“Two accused namely Abdullah and Saleem Zaman had

been mixed with eighteen others under trial dummies in
two rows. …………..………………………………………….

Thereafter, I summoned Alam Khan PW from outside the

jail premises and he was asked to identify the accused.
He correctly identified Abdullah accused from one row
and accused Saleem Zaman from the second row.”

It is, therefore, evident that the identification parade of

Saleem Zaman, petitioner and Abdullah alias Ghazali, co-accused

(since died) was jointly held. Although the identification parade of

Abdul Hayee, petitioner was not jointly held with any other

accused but no role whatsoever during the occurrence was

attributed to the said petitioner by the prosecution eye-witnesses

at the time of his identification parade. Likewise, Fateh Sher (PW-

15) also conceded that he did not attribute any role to Saleem

Zaman, petitioner and Abdullah alias Ghazali, co-accused (since

died) during their identification parade. The relevant parts of the

statements of Fateh Sher (PW-15) and Khuda Yar, Judicial

Magistrate (PW-17) read as under:-

Fateh Sher (PW-15)

“It is correct that I did not attribute any role to Saleem
Zaman and Abdullah accused before the Magistrate.”

Khuda Yar, Judicial Magistrate (PW-17)

“The witnesses did not attribute any specific role to
Mohammad Saleem Zaman accused during the
identification parade. ………………………………………

During the proceedings dated 06.06.2009 the witnesses

only placed their hands on the head of the accused
Abdul Hayee and said that he was Abdul Hayee. It is
correct that Alam Khan placed his hand on the person
sitting at Serial No. 7 and said that “he is”. No role was
attributed to any of the accused by the PWs.”

As the identification parade of Saleem Zaman,

petitioner and Abdullah alias Ghazali, co-accused (since died) was

jointly held and as no specific roles during the occurrence were

Criminal Petition Nos. 260-L & 275-L of 2015
18

attributed to both the petitioners by the prosecution eye-witnesses

at the time of their identification parades, therefore, the

identification of the petitioners during their identification parades

carries no value in the eyes of law. Reference in this context may

be made to the cases of Kamal Din Vs. The State(2018 SCMR 577),

In the mater of Kanwar Ali, Special Judicial Magistrate (PLD 2019

SC 488) and Azhar Mehmood Vs. The State(2017 SCMR 135).

14. Insofar as the recoveries of weapons of offence from

the petitioners in another case bearing FIR No. 121 dated

26.05.2009 under Sections 324/353/186/148/149 PPC, read with

Section 13 of the Arms Ordinance, 1965 and Section 7 of the Anti

Terrorism Act, 1997, at Police Station Mochh, District Mianwali,

which recoveries were also relied upon by the prosecution in the

instant case and positive reports of Forensic Science Laboratory

are concerned, we have noted that the said recoveries were not put

to the petitioners in their statements recorded under Section 342

Cr.P.C., therefore, the above-mentioned pieces of prosecution

evidence cannot be considered against the petitioners and the

same have rightly been discarded by the learned High Court in

paragraph No. 15 of the impugned judgment. Reference in this

context may also be made to the cases of, Fida Hussain Shah Vs.

The State (2024 SCMR 1622), Haji Nawaz Vs. The State (2020

SCMR 687) & Mst. Anwar Begum Vs. Akhtar Hussain (2017 SCMR

1710).

Even otherwise, we have already discarded the direct

evidence of above-mentioned prosecution eye-witnesses in this

case, therefore, the convictions and sentences of the petitioners

Criminal Petition Nos. 260-L & 275-L of 2015
19

under the capital charge cannot sustain merely on the basis of

above-mentioned alleged recoveries. Reference in this context may

further be made to the case of Muhammad Fazal Vs. The State

(2009 SCMR 436).

15. Insofar as the motive is concerned, although it is

argued by learned DPG that the petitioners were involved in other

criminal cases of terrorism and they have committed the

occurrence of this case in order to create terror in the society but

we have noted that no previous record of the petitioners regarding

their involvement in any other criminal case prior to the

registration of present case has been brought on the record. It is

true that Haji Khan, Inspector (PW-19) in his statement before the

learned Trial Court has made reference to another FIR No. 121

dated 26.05.2009 registered against the petitioners but as

mentioned earlier the FIR of the instant case was lodged on

07.02.2009, therefore, it is evident that the above-mentioned other

FIR No. 121 was subsequently lodged against the petitioners and

as such no record qua involvement of the petitioners in any other

criminal case prior to the registration of the instant case has been

brought on the record. Moreover, the enmity of the petitioners with

the local police was established during the cross-examination of

Haji Khan, Inspector (PW-19). The relevant part of his statement in

this respect is reproduced hereunder:-

“Sher Zaman is father of Saleem Zaman accused but I

do not know whether Aamir Hayat is Behnoi of Saleem
Zaman accused. I know that Sher Zaman
aforementioned filed writ petition before Honourable
Lahore High Court Lahore that his son-in-law Aamir
Hayat was being detained illegally by the police and was
Criminal Petition Nos. 260-L & 275-L of 2015
20

being tortured. It is correct that on the orders of

Honourable Lahore High Court Lahore Bailiff was
deputed by learned Sessions Judge Khushab and we
produced Aamir Hayat before his lordship, the Chief
Justice. It is correct that after the statement of Aamir
Hayat his lordship released Aamir Hayat and FIR
No.122 registered against him at Police Station Wan
Bhachran was also quashed. It is correct that
Honourable Chief Justice also held that if Aamir Hayat
wanted to get register cases against the relevant police
officers for highhandedness, he can get the case register
against them”.

It is therefore, evident that a habeas petition was filed against the

local police, by the father of Saleem Zaman petitioner, before the

Lahore High Court and in the said case the detenue was released

and the learned Chief Justice of the High Court also observed that

the detenue may get the cases registered against the relevant police

officers for their highhandedness and the said order invited the

wrath of the local police against the petitioners who were mala

fidely implicated in the instant case of un-seen occurrence, so that

the petitioners or their above-mentioned relative may not pursue

his above-referred case and lodge FIRs against the local police

officers/officials.

Moreover, no record was produced by the prosecution to establish

that the petitioners had any link with any terrorist/proscribed

organization. Furthermore, neither Fateh Sher (PW-15) nor Alam

Khan (PW-16) or Malik Khalid Mehmood, Inspector/complainant

(PW-18) or Haji Khan, Inspector (PW-19) stated that the petitioners

were terrorists and they committed the occurrence of this case for

the purposes of terrorism. Furthermore, the above-mentioned

motive that the petitioners committed the occurrence in order to

Criminal Petition Nos. 260-L & 275-L of 2015
21

create terror in the society was not put to the petitioners in their

statements recorded under Section 342 Cr.P.C. Under the

circumstance, it cannot be held that the prosecution has proved

the alleged motive against the petitioners. It is, therefore, evident

that the petitioners had no reason to commit the occurrence of this

case rather the local police had a motive to falsely involve the

petitioners the instant case of unseen occurrence.

16. Keeping in view all the above-mentioned facts, we have

come to this irresistible conclusion that the prosecution has not

been able to prove its case against the petitioners beyond the

shadow of doubt, therefore, these petitions are converted into

appeals and allowed. The impugned judgment is set aside.

Petitioners are acquitted of all the charges while extending them

the benefit of doubt. They shall be released from the jail forthwith

unless required to be detained in any other case.

JUDGE

JUDGE

JUDGE
Islamabad, the
21st of October, 2024
‘Approved For Reporting’
Khurram