IN THE COURT OF MUHAMMAD ASGHARK HANlIUDGE ANTI TERRORISM COURT NO. IIRAWALPINDI DIVISION. RAWALPINDI.

TRIAL CASE NO. 774/JSC-I DECIDED ON:

31.8.2017

The State......

VS1. Rafaqat Hussain son of Sabir Hussain,

Cas te A w a n , aged 35 years, res ident ofH o u s e N o . A.D-90, Gali No.8 /1 ,Ahmadabad , Quaid-e-Azam Colony,Rawalpindi.

2 . Syed Pervaiz Musharaf son of SyedM u s h a r a f - U d - D i n , C a s t e S y e d ,profession F o r m e r President ofPak is tan , G o v e r n m e n t o f Pakis tan,resident of Chak Shahzad, Islamabad

3. Husnain Gul alais Ali son of MuhammadRiaz Caste Aw a n , aged 29 years,, residentof st reet No .7 , Shah jeevan Colony,Dhoke Sayyadan, Rawalpindi.

4. Sher Zaman son of Akbar Jan, CasteMehsud, aged 42 years, resident ofLadha, South Waziristan Agency,present ly res id ing at Tar iq abad Khan , D. I .Khan.

5. Rasheed Ahmed Turabi a l ias Abdul RahimTurab i , son of Qudrat Shah, Cas teMehmand , a g e d 28 years, res ident o fS h a b q a d a r S a r e e k h M o r o z a i , P o l i c eSta t ion B a t a g r a m , Dis t r ic t Charsada.

6. Syed Saood Aziz son of Syed Abdu l Aziz ,aged 60 years, Profession t h e n t h e CPD,Rawalpindi, res ident of House No . 11 6 ‑Model To w n , Lahore.

7. Khurram Shahzad Haider son ofMuhammad Iqba l Warr iach, aged 42years, profession t h e t h e n S.P Rawal ,res ident of Rana Ashra f Colony, C i t yBlock, Bhalwal , D i s t r i c t Sargodha.Case FIR N o . 4 7 1 da ted 27.12.2007

uls 3021324143514361120‑3111912011109134 P.P.Cl 415 ESA a n d 7ATAI Police S ta t i on C i t y Rawalpindi.IUDGMENT :‑

The above said accused persons namelySher Zaman, Syed Saood Aziz, Rasheed Ahmed,Rafaqat Hussain, Khurram Shahzad and Husnain Gulwere sent up in this court to fact trial in Case FIR No.471 dated 27.12.2007 uls 302/324/435/436/120‑B/119/201/109/34 P.P.C, 4/5 ESA and 7 ATA, PoliceStation City Rawalpindi.2. As per Exp.PA the brief facts of the case arethat Mohtrama Benazir Bhutto a former primeminister of Pakistan was killed in an attack in resultof firing followed by a bomb blast caused by someunknown suicide bomber on her way coming backafter attending a political gathering held at LiaqatBagh Rawalpindi. Other 18 people also died at thespot and 71 persons were seriously injured .3. Initially the case was investigated by the policeand reports u/s 173 Cr.P.C and following challan weresubmitted by the police as under below

. Report u/s 173 Cr.P.C dated 26.1.2008.

. Report u/s 173 Cr.P.C dated 29.2.2008.

. Report u/s 173 Cr.P.C dated 17.4.2008

. Report u/s 173 Cr.P.C dated 8.5.2008

. Report u/s 173 Cr.P.C dated 2552008Report u/s 173 Cr.P.C dated 30.7.2008( Being Juvenile)

4. Thereafter subsequently case was investigatedby the FIA and 6 challan u/s 173 Cr.P.C weresubmitted against the accused persons as underbelow

. Report uls 173 Cr.P.C dated11.6.2010Reportu/s 173 Cr.P.C dated 13.11.2010

. Report u/s 173 Cr.P.C dated 22.12.2010Report u/s 173 Cr.P.C dated 7.2.2011

. Report u/s 173 Cr.P.C dated June 2012.

. Report uls 173 Cr.P.C dated 22.6.2013.5. All the above mentioned accused were chargesheeted by this court on 20.8.2013 to which all ofthem pleaded not guilty and opted to face the trial.6. From the list of 1 4 1 witnesses, the prosecutionopted and produce 68 PWs and rest were given up.The gist of the prosecution evidence ocular as well asdocumentary are mentioned below:‑Pw-1 Kashif Bashir witness of personal searchMemo.

1. FIR Exh. PA/1.2. Complaint Exh. PA.

PW-2 Dr. Hina Witness of conducting post-mortemexamination of deceased Ch. Touqueer Akram,

Asif, Muhammad Bashir, Zulfiqar and issued MLR ofinjured Abdul Rehman.

. Autopsy report Exh. PW.2/A.

. Application for external post mortem reportExh. PW-2/A-1

. Inquest report Exh. PW.2/A/2-5

. Autopsy report Exh. PW.2/B.

. Application for external post mortem reportExh. PW-2/B-1

. Inquest report Exh. PW.2/B/2-5

. Autopsy report Exh. PW.2/C.

. Application for external post mortem reportExh. PW-2/C-1

. Inquest report Exh. PW.2/C/2‐50. Autopsy report Exh. PW.2/D.1. Application for external post mortem

report Exh. PW‐2/D-112. Inquest report Exh. PW.2/D/2-513. MLR Exh.PW-2/P.1.14. MLR of injured person Exh. PW-2/E.

PW-3 Dr. Rida Khan Witness of conductingpostmortem Examination of deceased Sh.Javed Iqbal and issued MLR of injured personsMuhammad Amin, Muhammad Sharif, AbdulJabbar, Muhammad Hanif, Faheem Ahmed, ,Syed Munir Hussain, Ayyab Ahmed, YasirQureshi, Bashir Ahmed, Malik Asghar, MumtazHussain and Fida Abbasi, Muhammad Asif.

1. MLR Exh. PW-3/P.1- Exh. PW.3/P.132. MLR of injured person Exh. PW.3/A to Exh.PW.3/O

PW-4 Dr. Ashraf Ali Witness of conductingpostmortem Examination of Sajid Mehmlood,Muhammad Munir, and issued MLRs ofMuhammad Nawaz A.S.I, Umar Khatab, GhulamMurtaza, Muhammad Akhtar, Haji Khalil, Mateeh urRehman, Muhammad Zameer, Mushtaq Ahmed.

1. Application for external post mortem, inquestreports

2. External postmortem report are Exh. PW.4/A toExh. PW.4/O

PW-5 Dr. Hafiz Muhammad Qasim Khan witness whoexamined the injured persons Atif Javed,Rukhsar Iqbal, Muhammad AkramTariq Saeed,Waheed Ahmed, Iftikhar Mehmood, UmarIftikhar, Saraj Shaikh Ahsan, Raja MuhammadRiaz.

1. Application of police for MLR Exh. PW.5/A toExh.PW.5/j.

2. MLR Exh. PW.5/A/1 to Exh. PW.5/j/1.3. MLR Exh. PW.5/K.

PW-6 Jamal Saleem Toru Assistant Manager, Publicand Government Office Department Telenor Jinnah

Super Market Islamabad Witness of providingdata of mobile

number503449666465,03446654236,03469442498.Mobiles data Exh. PW.6/A/1-6 to Exh.

PW.6/B/1-18PW-7 Mirza Sarfraz PTCL Revenue Rawalpindi Canttwitness who provide data of PTCL No. 5575823.

1. Report of Mobile Data Exh. PW.7/A.2. Recovery memo of report of Mobile Data Exh.

PW.7/B.PW-8 Ghulam Abbas owner of the house where

Sabir Father of the accused Rafaqat Hussainwas residing and stated about the installationof land line number on his residence whichwas in the use of accused Rafaqat Hussain andHusnain Gul.

PW-9 Muhammad Feroz Alam Senior Manager RNOCPTCL Satellite Town Rawalpindi witness who provideddata of telephone number 0928-230493.PW-10 Ahmed Faisal Senior Manager RegulatoryZong Near FIA Office, Islamabad witness of handingover the calling record of mobile number 0304‑9645938.

Letter of Data of Mobile number Exh. PW.9/A.PW- l l Asghar Ali SI.(i) Witness who requested Medico Legal Officer for

medical reports regarding 26 injuredpersons and Autopsy reports regarding killed

persons.(i i) Witness of drafting F.I.R of this case.

Injury statement Exh. PW.11/1-26.PW-12 Muhammad Saqlain Bomb DisposalExpert Civil Defence Office, p r .

1.Report from police control Exh. PW.12/A.2.5ignatures on report Exh. PW.12/A/1.

PW-13 Asif Muzamil Manager Co-ordination U. FoneHead Office Islamabad witness who provided recordof mobile numbers 0331-5013836 and 0332‑5609682.

1 .Letter for mobile record Exh. PW.13/A.Recovery memo of letter of mobiledata Exh. PW.13/B.

2.Record of Mobile data Exh. PW.13/C and Exh.PW.13/D.

PW-14 Saleem Akhter ASI Moharrar Malkhana P.S CityRawalpindi, who kept parcel of 30 bore pistol, 3empties of 30 bore pistol, parcel of 9 MM pistol,

parcels of contain blood, parcel of skin tissue,parcel of black material of explosive, parcel ofIeatherjacket, parcel of white tissues of skin

parcel of piece of bone alongwith necessary paperetc in the Malkhana.PW-15 Ghulam Muhammad Naz Assistant FireOfficer Rawalpindi witness relating with thewashing crime scene.

1. Signatures and thumb impressions of GhulamMuhammad NazExh. PW-15/A-D.

2. Statements of Ghulam Muhammad Naz Exh.PW- 15/E/1-4.PW-16 Dr. Abdul Rehman District Emergencyofficer Rescue 1122 p r .

1. Signatures and thumb impressions Exh.PW.16/A to F.

2. Statements of Dr. Abdul Rehman Exh. PW‑16/G/1-7.

PW-17 Dr. Amjad Ali Shah witness of conducingpost mortem examination of deceasedMuhammad Shafique, Ch. Hakim Ali, TajMuhammad, Muhammad Shafique, MazharTasvir, Jamil Ahmed, Raja Muhammad Ameen,Bahir Ahmed, Raja Muhammad Ameen, BashirAhmed, Sajid Ali, Muhammad Aslam, RajaHabib Ahmed, Zaheer Ahmed Khan, andissued MLRs of the injured persons SyedIshtiaq Hussain Shah, Muhammad Ehsan, TariqMehmood, Mehmood Akhtar, Malik MazharHussain, Malik Zakir Hussain, Altaf Butt,Waseem Abbas, Abdul Hameed, MuhammadShahzad, Muhammad Jamshaid, Nawaish Ali,Husnain Ashraf, Muhammad Ghous,Muhammad Saleem, Rashid Ahmed.

1. Autopsy report Exh. PW-17/A/1 to Exh. PW‑l7/L/1.2. Application for external postmortemexamination Exh. PW-17/A to Exh. PW17/L.3. Inquest reports Exh. PW-17/A/2-4 to Exh. PW‑

17/G/2-4.4. Applications by the police for MLRs are Exh.

PW-17/1 to Exh. PW‐17/P.16.5. MLRs of injuredpersons are Exh. PW‐17/M to

Exh. PW‐17/BB.PW‐18 Ch. Muhammad Tofique special JudicialMagistrate witness of recording confessionalstatement of accused Rafaqat, Husnain GUI andEtizaz Shah u/s 164 Cr.P.C.

1. Application allowed by District & Sessionsjudge for recording of confessional statementof Rafaqat Hussain Exh. PW-18/A.

2. Thumb impressions andsignatures of accusedRafaqat Hussain are Exh. PW-18/B and Exh.PW-18/B/1.

3. 4 questions p u t to accused Rafaqat HussainExh. PW-18/B‐2

. Signatures and thumb impressions in token ofcorrectness are Exh. PW-18/C and Exh. PW‑18/C/1.

. Confessional statement of Rafaqat accusedExh. PW-18/D.

. Signatures and Thumb Impressions of Rafaqataccused Exh. PW-18/E and Exh. PW-18/E/1.

. Certificate Exh. PW-18/F.

. Application allowed by District & Sessionsjudge for recording of confessional statementof Husnain Gul Exh. PW‐18/G.

9. Thumb impressions and signatures of accusedHusnain Gul are Exh. PW-18/H and Exh. PW‑18/H/1.

10. 4 questions p u t to accused Husnain GulExh. PW-18/H-2

11. Signatures and thumb impressions intoken of correctness are Exh. PW-18/l and Exh.PW‐18/I/1.

12. Confessional statement of Husnain Gulaccused Exh. PW-18/j.

13. Signatures and Thumb Impressions ofHusnain Gul accused Exh. PW-18/K and Exh.PW-18/K/1.

14. Certificate Exh. PW-18/L.PW-19 Ahmed Masood Janjua Special JudicialMagistrate.

witness of recording confessional statement ofaccused Rasheed Hussain u/s 164 Cr.P.C.

1. Application allowed by District & SessionsJudge for recording of confessional statementsof Rasheed Ahmed Turabi Exh. PW-19/A.

2. Signatures of Tahir Ayoub as identifier Exh. P‑19/8.

3. Signatures and thumb impressions onquestions put to accused Rasheed AhmedTurabi Exh. PW-19/C

. The questions and answer are Exh. P‐19/D.

. Endorsement Exh. PW-19IE

. Confessional statement of Rasheed AhmedTurabi accused Exh. PW‐19/F.

7. Signatures and Thumb impressions of RasheedAhmed Turabir accused Exh. PW-19/G.

8. Certificate Exh. PW‐18/H.PW-20 Haider Aii witness of sending the parcels todifferent offices.PW-21 Muhammad IIyas S.i witness ofpersonal search of accused Rafaqat Hussain andHusnain Gui.

1. Defused Handgrenade recovered from thepersonal search of accused Husnain GuI Exh.PW-21/P.1.

2. Recovery memo of Hand grenade Exh. PW‑21/A.

3. Detonators recovered from the personal searchof accused Rafaqat Hussain consist upon threeparts are Exh. PW-21/P.2, Exh. PW-21/P.3/1-24,Exh. PW‐21/P.4.

4. Taxi No. BK/1427 Exh. PW-21/P.5.5. Recovery memo of Taxi and Detonators Exh.

PW-21/B.6. Rs. 200 recovered from accused Rafaqat

Hussain Exh. PW21/P.6/1-2.7. One Nokia Mobile Phone alongwith SIM Exh.

PW-21/P.7,8. Three Photographs Exh. PW-21/P.8/1-3.9. Negative Photograph Exh. PW-21/P.9.10. Registration Book of Car Exh. PW-21/P.10.11. Route Permit Number Exh. PW‐21/C.12. Rs. 19288 recovered from accused

Husnain Gui in denomination of Rs. 3000/‑Exh. PW-21/R12/R1-3, two currency note of Rs.100 Exh. Pw-21/P.14/1-2, one currency note ofRs. 50/- Exh. PW-21/P.15, one currency note ofRs. 20 Exh. PW-21/P.16, one currency note ofRs. 10 Exh. PW21/R17

13. Motorola set without SIM Exh. PW‑21/P.18.

14. One Video Game upon which wordmercury is mentioned Exh. PW-21/P.19.

15. One Large Telephone diary Exh. PW‑21/P.20.

16. ID card of Husnain Gul Exh. PW-21/P.21.17. 5 Visiting cards of different companies

Exh. PW-21/P.22/1-5.18. 4 Chits Exh. PW-21/P.23/1-4.19. Key Rings with three rings Exh. PW‑

21/P.24.20. Small Telephone Diary Exh. PW‐21/P.25.21. Mobile Phone Nokia 1112 Exh. PW‑

21/P.26.22. SIM of Warid Exh. PW-21/P.27.23. Recovery memo of personal search of

accused Husnain Gul Exh. PW‐21/D.24. Pointation Memo Exh. PW-21/E

PW-22 Usman Maftoon Manager Govt, Relation &Regulatory Officer Warid Telecom Blue Area,Isb, witness who provided the particulars of Mobilenumbers 0322- 5402148, 0322-5049781 and03215540177.

1. Letter for obtaining Mobile Data of threephones number Exh. PW‐22/A.

2. Recovery memo of above said letter Exh. PW‑22/B.

PW-23 Arshad Kaleem S.I witness of Seizure Memoregarding pair of shoe and socks and amputatedlegs.

1. Two sandals Exh. PW‐23/P.1/1-22. Socks Exh. PW-23/P.2/1-2.3. Recovery memo of sandals and socks Exh. PW‑

23/A.PW-24 Javed Iqbal Lodhi Brigadier Retired witnesswho handed over a CD containing conversationbetween two numbers 096-5238387 and 092‑8230493 wrapped in two/ three paper envelops toTahir Ayoub SP.

1. Recovery memo of CD Exh. PW-24/A.2. Articles parcels related to conversation

between two telephone numbers Exh. PW‑24/P.1.

PW‐25 Mohsin Khan 6523/C witness of sendingparcels to different offices.PW-26 Rehan Yameen 6417/C Witness of depositingfinger prints to Automated Fingure Print Office,National Police Bureau, Islamabad.PW-27 Zameer Ahmed ASI witness of recoverymemos.

. Pistol 9 MMExh. PW-27/P.1.

. Recovery memo of Pistol 9 MM Exh. PW-27/A.

. Pistol 30 bore Exh. PW-27/P.2.

. Three live bullets Exh. PW-27/P.3/1-2.

. Recovery memo of Pistol 30 bore and threelive bullets Exh. PW-27/B.

. One double can silver color Hiace vehicle Exh.PW.27/P.4.

. One police van pickup Exh. PW-27/P.5.

. One Pickup Elite force Exh. PW‐27/P.6.

. Recovery memo of above said vehicles Exh.PW‐27/C.

10. Broken leatherjacket Exh. PW‐27/P.7.11. Recovery memo of broken leatherjacket

Exh. PW-27/D.12. Empty Pistol30 bore Exh. PW-27/P.8.13. Recovery memo of pistol 30 bore Exh.

PW‐27/E.14. Seiko Wrist Watch Exh. PW‐27/P.9.15. One Mobile Exh. PW‐27/P.10 alongwith

SIM and battery Exh. PW‐27/P.11.16. Visiting cards and ID cards Exh. PW‑

27/P.12.

17. One broken Number Plate of Vehicle Exh.PW‐27/P.13.

18. Recovery memo of above said articlesExh. PW-27/F.

19. Recovery memo of blood stained earthExh. PW‐27/G.

20. One Circuit plate Exh. PW-27/P.14.21. Recovery memo of Circuit plate Exh. PW‑

27/H.22. One Damaged Iandcrusier Exh. PW‑

27/P.15.23. Registration Book of Iandcruiser Exh. PW‑

27/16.24. Recovery memo of Land cruiser and

registration book Exh. PW‐27/j.25. Crime Empty Exh. PW‐27/P.17, 2 palates

Exh. PW‐27/P.18/1‐2.26. Recovery memo of crime empty and 2

palates Exh. PW-27/K.27. One Pair coat shoe Exh. PW-27/P.19/1-2.28. Recovery memo of one Pair of coat shoe

Exh. PW-27/L.PW-28 Muhammad Anwar DSP witness of producingcertified copies of security plan regarding

possession of PPP Parliamentarian on27.12.2007 at Liaqat Bagh Rawalpindi.

Certified copy of security plan regardingprocession of PPP at Liaqat Bagh Exh. PW‑28/P.1/1-16.PW‐29 Farooq Ghazan S.| Police Station Westridgewitness of got attested copies from the court.

1. Attested copy relating to case FIR No. 76/08Exh. PW-29/P.1/1-7.

2. Recovery memo of attested copies Exh. PW‑29/A.

PW‐30*Brigadier ® Javed lqbal Cheema DirectorGeneral NCMC Ministry of Interior Govt ofPakistan Islamabad.

1. Video footage of the incident Exh. PW-24/P.1.2. Audio Cassette of intercepted conversation by

the ISI between Baitullah Masood and OneMolvi Exh. PW‐30/P.1.

3. X-rays report of Mohtrama Benazir Bhutto Exh.PW-30/P.2.

PW-31* Dr. Habib Ahmed Khan witness whoprepared consolidated medical report dated28.12.2007 of Mohtrama Benazir Bhutto.

1. Consolidated medical report prepared by Dr.Saeeda Yasmeen and Dr. Qudsia AnjumQureshi Exh. PW‐31/A.

PW‐32*Dr. Samra Ayoub witness who examined theMohtrama Benazir Bhutto in the RGH hospital

after the occurrence.Carbon Copy of original MLC of Mohtrama

Benazir Bhutto Exh. PW-32/APW-33 *Dr. Nasir Khan witness who gave expertopinion on X- ray of Mohtrama BenazirBhutto.

1. Two Films of X-rays of BB Exh. PW‐33/P.1/1-2.2. Opinion of PW-33 Exh. PW‐33/A.

PW-34*Dr. Aurangzaib Khan witness who examinedthe Mohtrama Benazir Bhutto in the RGH hospitalafter the occurrence.

1. Death Certificate of Mohtrama Benazir BhuttoExh. PW-34/A.

PW-35 Yasin Farooq Director FIA Islamabad witnesswho attended metting on behalf of accused SaoodAziz ( t h e then CPO, p r ) regarding securityarrangement at Liaqat Bagh.

Statement u/s 164 Cr. P.C of Yaseen Farooqrecorded by Kamran Cheema Magistrate Exh. PW‑35/A.PW-36 Nouman Ashraf Deputy Director FlA CounterTerrorism Wing FIA witness who conductedforensic of two cell phones set No. SAINO E55IMEI No. 359151010060497 and IMEI No.359151010260493.

Forensic record/ Data of mobile phones as wellas SIMS as Exh. PW-36/A to Exh. PW-36/H.PW-37 Qamar Zaman Assisstant Director/ analystCTW FIA Head Quarter, Islamabad.

1. Scientific detailed report Exh. PW-37/A.2. Written request of Shoaib Ahmed inspector

MemberJIT Exh. PW-37/A/1.PW-38 Ashfaq Anwar SSP, supervisor of three Elitesections headed by inspector AzmatGondal deputed for the personal securityof Mohtrama Benazir Bhutto.PW-39 Nisar Ahmed Jadoon witness of attesting therecovery memo of two mobile phones ofMohtrama Benazir Bhutto.

Recovery memo of two black berry Mobilesphone Exh. PW-39/A.PW-40 Ejaz Hussain Shah LC of case F.I.R No. 76/08of PS Westridge.

Articles recovered from the personal search ofaccused Husnain Gul two coins of Rs. 2

each Exh. PW-40/P.1/1-2, four coins of Rs. 1 eachExh. PW- 40/P.2/1‐4.

PW-41* Dr. Muhammad Musadiq Khan PrincipalRawalpindi Medical College and chiefExecutive of Technnig Hospital of prmedical college Witness who treatedMohtrama Benazir Bhutto and declared herdeath.

1. Statement u/s 164 Cr. P.C of PW Dr. MusadiqKhan Exh. PW-41/A.

PW-42 Ashfaq Ahmed Khan S.I Member ofle andwitness of recovery memos.

1. Recovery memo ofJogars Chaddar, cap ofSaeed alias Saeed Suicide Bomber Exh. PW‑42/A.2. One CPU Exh. PW‐42/P.1.3. Recovery memo of CPU Exh. PW‐42/B.4. Articles recovered from the personal search of

accused Rasheed Ahmed Turabi as Exh. PW‑42/P.2/1‐5 to Exh. PW-42/P.14.

5. Recovery memo of Personal search of RasheedAhmed Turabi Exh. PW‐42/C.

6. Data of Mobile number 0304-9684538 Exh. PW‑42/P.15/1-24.

7. Recovery memo of Mobile Data Exh. PW-42/D.8. Recovery memo of data of mobile numbers

0344-6654236, 0344-9666465 and 0346‑9442498 Exh. PW-42/E.

9. Recovery memo of Data of land line number0965-238387 and 0928-230493 Exh. PW-42/F.

PW-43 Dr. Zia ur Rehman witness who examined 23injured persons and prepared theirMLCs.

MLRs of the injured persons Exh. PW‐43/A toExh. PW- 43/y.PW-44 Muhammad Adnan S.I witness who attestedthe recovery memo of 8 pages of admissionand Discharge / Madrasa leavingcertificate register.

1. 8 pages of admission and dischargecertificate of 7 students Exh. PW- 44/A/1-8

2. REcovery memo of Admission and dischargecertificate Exh.PW‐44IB/1-3.PW-45 Naseer Ali Khan inspector witness who tookinto possession admission and Discharge / Madrasa

leaving certificate register.PW-46 Wasal Ahmed Nazim Taleemat MadrisaHaqania Akora Khatak.

Covering letter of record of different studentsof jamia Darul UIoom Haqania Exh. PW-46/A.PW-47 Sher Khan DSP ® I Manager Admin and LegalAffairs United Mobile Company, Karachi.

Letter dated 4.1.2011 addressed to Mr. G.Ajatoi /AD/FlA Exh. PW-47IA.PW-48 Mushtaq Hassan T/ASI witness who attestedthe recovery memo of security plan No. 143821‑40/GBC Exh. PW-48/A.

Recovery memo of security plan No. 143821‑40/GBC Exh. PW‐48/APW-49 Syed Kamal Shah Secretary Ministry of Interior

Islamabad who receivedinformation from the DG ISl containing threats tothe life of Mohtrama Benazir Bhutto.PW-5O Abdul Razzaq Merani Incharge Bilawal HouseCliftan Karachi witness who delivered two blackberries which were under the use of MohtramaBenazir Bhutto.PW-51 Niyaz Khan inspector/ S.H.O P.S Cant DIkhan LC of this case and witness of personalsearch of accused Etizaz Shah and recoverymemos.

1. Recovery memo of parcels of recoveredarticles from Asmat U/Iah and EtizazShah Exh. PW-51/A.

2. Attested copy of complaint Exh. PW-51/B.3. Signatures on the complaint Exh. PW‑

51/B-lPW-52 Jameel Akthtar S.I Moharrar ASI P.S CityRawalpindi.

Roznamcha ofPS City from 16.12.2007 to4.1.2008 Exh. PW-52/P.1 -100.PW-53 Haji Khalid Mehmood injured PW.PW-54 Riaz Ali Injured PW.PW-55 Major ® Imtiaz Hussain eye witness.PW-56 Behlol Khan Brother of one of theaccused Abdullah (since Murdered).PW-57 Javid ur Rehman Driver of MohtramaBenazir Bhutto. PW-58 Kashif Riaz Khaninvestigating officer inspector complainant ofthis case.

Rough Site plan Exh. PW-58/A/1-4.PW‐59 Mark Alan Siegal Journalist United State ofAmerica.

Notarised copy of Email which was sent byMohtramaBenazir Bhutto Exh. PW-59/P.1.

PW-60 Tariq lIyas Kiani inspector Member ofle.PW-61 Tahir Ayoub investigating officer SSPMember ofle.

1. Photographs of the place of occurrence Exh.PW- 61/P.1‐23.

2. The translation of conversation betweenMolvi sab and Ameer sb from Pashto to urduEXhPW-61/A.

3. Technical report about the mobile data andmobile phones Exh. PW-61/B/1-2.PW-62 Waqar Ahmed Chohan investigatingofficer Member of JIT.PW-63 Shoaib Ahmed investigating officer DSP ®Member of JIT.PW-64 Azad Khan investigating officer DIGMember oleT.PW-65 Khalid Rasool investigating officer AD® FIA Member ofJIT.PW-66 Wajid Zia investigating officer AD FIAMember ofJIT.PW-67 Ghulam Asghar Jatoi investigating officerMember of JIT.

Photocopy of notification issued by the FIAhead quarter Islamabad Exh. PW- 67/A.PW-68 Muhammad Khalid Qureshi Head oleT.7. Documents tendered by t h e Prosecution

. Bacteriologist report dated 14.1.2008 Exh. PB.

. Report of Expert Doctor Touqeer about theskull bone Exh. PC.

. Report of Chemical examiner about the bloodstained Exh. PD.

. Report of Seriologist Exh. PE.

. Report of FSL Exh. PF.

. Report of Chemical examiner Exh. PG.

. Forensic examination report on cell phoneand one SIM Exh. PH.

. Molecular Biology (DNA) Test Report Exh. PJ.

. Copy of letter of AI-Qaida threat from thedirectorate General ISI dated 10.12.2017Exh. PK.

10. Copy of Report of United NationsComission of Inquiry Exh. PL.

11. Copy of Letter of the Secretary GeneralUNO dated 3.2.209 addressed to thepresident of Securty Council Exh. PM.

12. Copy of the letter of the President ofSecurity Council of united nations Exh. PN.

8. Squat Land Yard in its report dated 8.2.2008concluded as under:‑a. Although not possible to "categorically...exclude" the possibility of a gunshot wound, theavailable evidence suggested there was nogunshotwound;b. Ms Bhutto died of a severe head injury causedby impact in the area of the escape hatch lip as aresult of the blast; andc. The same individual both fired the shots anddetonated the explosives.

9. Main find ings of t h e Uni ted Commission ofInqui ry in to t h e fac ts of t h e assissnation ofMohtrama Benazis Bhu t to which is avaialble onrecord as Exh. PL as under : ‑i. After nine years in exile, former Prime Minister

Mohtarma Benazir Bhutto returned to Pakistanon 18 October 2007, during an exceptionallyviolent year, marked by sharp increases inviolence carried out both by lslamist extremistsand by the state. She returned in the context ofa tenuous and inconclusive politicalagreement with General Pervez Musharraf, aspart of a process encouraged and facilitated bythe governments of the United Kingdom andthe United States. While their discussionsincluded the issue of an eventual powersharing arrangement, the final terms werenever agreed. Indeed, the Commissionreceived no compelling evidence that, by thetime of her assassination, either Ms Bhutto orGeneral Musharraf believed that she or hestillneeded the support of the other to achievetheir ultimate political goals.

ii. Ms Bhutto was murdered on 27 December2007 when a 15 and a half year-old suicidebomber detonated his explosives near hervehicle as she was leaving the PPP event atLiaquat Bagh. No one believes that this boyacted alone. A range of government officialsfailed profoundly in their efforts first to protectMs Bhutto and second to investigate withvigour all those responsible for her murder, notonly in the execution of the attack, but also inits conception, planning and financing.

iii. Responsibility for Ms Bhutto’s security on theday of her assassination rested with the federalGovernment, the government of Punjab andthe Rawalpindi District Police. None of theseentities took necessary measures to respond tothe extraordinary, fresh and urgent securityrisks that they knew she faced.

iv. The federal Government under GeneralMusharraf, although fully aware of, andtracking, the serious threats to Ms Bhutto'ssecurity, did little more than pass on thosethreats to her and provincial authorities andwere not 61 proactive in neutralizing them orensuring that the security provided wascommensurate to the threats. The federalGovernment failed in its primary responsibility

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to provide effective protection to Ms Bhutto onher return to Pakistan.

The federal Government lacked acomprehensive security plan for Ms Bhutto,relying instead on provincial authorities, butthen failed to issue to them the necessaryinstructions. Particularly inexcusable was theGovernment's failure to direct provincialauthorities to provide Ms Bhutto the samestringent and specific security measures itordered on 22 October 2007 for two otherformer prime ministers who belonged to themain political party supporting GeneralMusharraf. This discriminatory treatment isprofoundly troubling given the devastatingattempt on her life only three days earlier andthe specific threats against her which werebeing tracked by the ISI.Ms Bhutto’s assassination on 27 December2007 could have been prevented if theRawalpindi District Police had taken adequatesecurity measures. The security arrangementsfor Ms Bhutto by the Rawalpindi District Policewere ineffective and insufficient. The police’ssecurity plan, as written, was flawed,containing insufficient focus on Ms Bhutto’sprotection and focusing instead on thedeployment of police for crowd controlpurposes. In many respects, the security planwas not implemented. Although the plan calledfor deploying 1,371 police officers, the actualdeployment did not approach that number.Among other failings: the police co-ordinatedpoorly with the PPP's own security; policeescort units did not protect Ms Bhutto’s vehicleas tasked; parked police vehicles blocked theemergency route; and, the police took grosslyinadequate steps to clear the crowd so that MsBhutto’s vehicle would have safe passage onleaving Liaquat Bagh. The performance ofindividual police officers and police leadershipwas poor in areas of forward planning,accountability and command and control.The additional security arrangements of thePPP lacked leadership and were inadequateand poorly executed. The Commissionrecognizes the heroism of individual PPPsupporters, many of whom sacrificedthemselves to protect Ms Bhutto. However, MsBhutto was left vulnerable in a severelydamaged vehicle that was unable to transport

viii.

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her to the hospital by the irresponsible andhasty departure of the bullet-proof Mercedes‑Benz which, as the back-up vehicle, was anessential part of her convoy.The Rawalpindi District Police’s actions andomissions in the immediate aftermath of theassassination of Ms Bhutto, including thehosing down of the crime scene and failure tocollect and preserve evidence, inflictedirreparable damage to the investigation. Thecollection of 23 pieces of evidence wasmanifestly inadequate in a case that shouldhave resulted in thousands. The one instancein which the authorities reviewed theseactions, the Punjab committee of inquiry intothe hosing down of the crime scene was a 62whitewash. Hosing down the crime scene sosoon after the blast goes beyond mereincompetence; it is up to the relevantauthorities to determine whether this amountsto criminal responsibility. Furthermore, CPOSaud Aziz impeded some Joint InvestigationTeam investigators from conducting on-siteinvestigations until two full days after theassassination. The failure of provincialauthorities to otherwise review effectively thegross failures of the senior Rawalpindi policeofficials and deal with them appropriatelyconstitutes a broader whitewash by Punjabofficials.The deliberate prevention by CPO Saud Aziz ofa post mortem examination of Ms Bhuttohindered a definitive determination of thecause of her death. It was patently unrealisticfor the CPO to expect that Mr Zardari wouldallow an autopsy on his arrival in Pakistan atChaklala Airbase nearly seven hours after hiswife’s death and after her remains had beenplaced in a coffin and brought to the airport.The autopsy should have been carried out atRawalpindi General Hospital long before MrZardari arrived.The Commission is persuaded that theRawalpindi police chief, CPO Saud Aziz, did notact independently of higher authorities, eitherin the decision to hose down the crime sceneor to impede the post‐mortem examination.The Government press conference conductedby Brigadier Cheema on 28 December 2007,the day after the assassination, was ordered byGeneral Musharraf. The Government’s

xii.

xiii.

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XV.

assertion that Ms Bhutto's death was causedwhen she hi t her head on the lever of hervehicle’s escape hatch and that BaitullahMehsud and AI‐Qaida were responsible for thesuicide bomber were made well before anyproper investigation had been initiated. Thisaction preempted, prejudiced and hindered thesubsequent investigation.An unequivocal determination as to the causeand means of Ms Bhutto’s death would haverequired an autopsy. The Commission hasuncovered no new evidence to suggest agunshot injury to Ms Bhutto. Instead, a seniorPPP official who publicly purported soon afterthe assassination to have seen indications of abullet injury admitted to the Commission thatshe did not have direct knowledge of such aninjury.Ms Bhutto faced serious threats in Pakistanfrom a number of sources; these included AI‑Qaida, the Taliban and local jihadi groups, andpotentially from elements in the PakistaniEstablishment. Notwithstanding these threats,the investigation into her assassination focusedon pursuing lower level operatives allegedlylinked to Baitullah Mehsud. The Commissionfinds it disturbing that little was done toinvestigate Baitullah Mehsud himself, AI- Qaidaand any individuals or organizations that mighthave worked on, supported or otherwise beeninvolved directly or indirectly in the planning orexecution of the assassination. Investigatorsalso dismissed the possibility of involvement byelements of the Establishment, including thethree persons 63 identified by Ms Bhutto asthreats to her in her 16 October 2007 letter toGeneral Musharraf.The Commission has identified other significantflaws in the Joint Investigation Teaminvestigation led by the Punjab AdditionalInspector General Abdul Majeed. It lackeddirection, was ineffective and suffered from alack of commitment to identify and bring all ofthe perpetrators to justice. This delay furtherhampered the gathering of evidence. Despiteindications that there are links between theKarachi and Rawalpindi attacks, there hasessentially been no communication betweenthe investigators on those two cases.The investigation was severely hampered byintelligence agencies and other government

xvi.

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10 .

officials, which impeded an unfettered searchfor the truth. Despite their explanation to theCommission that they do not have a mandateto conduct criminal investigations, intelligenceagencies including the Inter‐ ServicesIntelligence agency (ISI) were present duringkey points in the police investigation, includingthe gathering of evidence at the crime sceneand the forensic examination of Ms Bhutto’svehicle, playing a role that the police werereluctant to reveal to the Commission.More significantly, the ISI conducted parallelinvestigations, gathering evidence anddetaining suspects. Evidence gathered fromsuch parallel investigations was selectivelyshared with the police. What little directionpolice investigators had was provided to themby the intelligence agencies. However, the bulkof the information was not shared with policeinvestigators. In fact, investigators on both theKarachi and Rawalpindi cases were unaware ofinformation the ISI possessed about terroristcells targeting Ms Bhutto and were unawarethat the ISI had detained four persons in lateOctober 2007 for the Karachi attack.More broadly, no aspect of the Commission’sinquiry was untouched by credible assertions ofpoliticized and clandestine action by theintelligence services ‐ the ISI, MilitaryIntelligence, and the Intelligence Bureau. Onvirtually every issue the Commissionaddressed, intelligence agencies played apervasive role, including a central involvementin the political negotiations regarding MsBhutto's return to Pakistan and the conduct ofthe elections.

The Commission believes that the failures ofthe police and other officials to react effectivelyto Ms Bhutto's assassination were, in mostcases, deliberate. In other cases, the failureswere driven by uncertainty in the minds ofmany officials as to the extent of theinvolvement of intelligence agencies. Theseofficials, in part fearing involvement by theintelligence agencies, were unsure of howvigorously they ought to pursue actions thatthey knew, as professionals, they should havetaken.While recording statement u/s 342 Cr. P.C, all

the accused persons had not opted to produce theirdefence evidence neither they opted to appear on

oath as their own witness u/s 340(2) Cr. P.C, however,while answering to the question “ W h y th i s casewas registered against y o u and w h y t h e PWsh a v e deposed aga ins t you"? the accused SaoodAziz answered as under:‑

“ I t is the result of over-anxiety ulteriormotives and malafides of somebody whowas interested in giving cover to the realfacts and that is the reason, Rehman Malikwas posted as Minister of Interior to safeguard the appointment of Khalid Qureshi ashead of j I T HA and investigation wasillegally transferred to FIA from j IT Punjab. Itreflects human greed to win laurels out ofillegal investigations at the hands of ghosts.Somebody should be thankful to changecircumstances and this is how a man goesto high position with the help of devilsaround. Had BB been alive, could somebodyelse had been on the throne of power. Suchperson should be thankful to Rehman Malikwho did not bother to examine himself butremained on the back of bad elements andthey could not move right or left other thandesires of the high-ups”.

11 . “ M M“ 3 3 m m : ‑

“I was arrested on 512008 from HarlyStreet , Rawalpindi by the people of civilclothes, I was remained in the illegalcustody till a false case FIR No. 76 /08was registered against me. The localpolice just to show their efficiency andKarguzai falsely roped my in this case.Actually, the Ex- Prime Minister lateBenazir Bhutto in her life time namedsome highups for her expected murderdue to the high position of these people ,j IT was not interrogated then instead ofthem being fellow falsely ropped meand my cousin. In such a way thehighups were n o t interrogated and I amin the lockup for the last about 9 yearswithout any mistake or fault. Prosecutiondid not provide any single evidencewhich connect me in the case”.

12 . Rest of the remaining accused persons whilegiving answer to the above said question,denied all the allegations against them andclaimed their innocence.

1 3 .

14.

Net shell of the arguments of the learnedSpecial Public Prosecutors Muhammad AzharChaudhary and Kh. Imtiaz Ahmed are thatprosecution has successfully proved its caseagainst the accused persons beyond anyshadow of doubt on the basis of call dataintercepted by the ISI official betweenBaitullah Masood Ameer of Tehrek-e‐TalbanPakistan and one Molvi, the confessionalstatements of the accused persons RafaqatHussain, Husnain Gul, Rasheed Ahmed andEtizaz Shah, forensic analysis of cell phones ofthe accused persons alongwith oral evidencecoupled with their statements u/s 164 Cr. P.Csubmitted that the murder of MohtramaBenazir Bhutto was a result of a conspiracy inconnivance of all the accused persons witheach other and they deserve no leniency andlastly prayed for the conviction of the accusedpersons .Mr. Jawad Khalid advocate Learned defencecounsel for the accused Rafaqat Hussain,Husnain GuI and Sher Zaman and Mr. RaoAbdul Raheem advocate learned defencecounsel for the accused Rasheed Ahmed Turabiargued that prosecution case was full ofdoubts and contradictions, so calledconfessional statements of the accused u/s164 Cr. P.C were bogus and fabricated. Thatthe cell phone call data as alleged by theprosecution was not proved and do notconnect the accused persons with theoffences in any manner. That the DNA reportswere infact relating with the deceasedMohtrama Benazir Bhutto and even that wasnot produced before the court. That the callrecord/ data allegedly intercepted by the ISIofficials was not proved as the lSl officialwho allegedly intercepted the said callMuhammad Ismail was not produced in thecourt and the alleged contents of the said callbetween Bait-ullah Masood and one Molvi doesnot disclose even the name of MohtramaBenazir Bhutto or the name of the accusedpersons. That the prosecution itself wasconfused and was leading into three differentdivergons. That the poor persons had beenmade scapegoat to save the real culprits. Thatthe prosecution has failed to prove anyconspiracy regarding the murder of MohtramaBenazir Bhutto by the accused. That as per

1 5 .

alleged motive in the confessional statementsof the accused was that they wanted to getrevenge of the killing of the Lal Masjid incidentfrom the government officials was contrary tothe prosecution story because MohtramaBenazir Bhutto was not part of government atthat t ime and lastly prayed for their acquittalMalik Rafique Khan advocate learned defencecounsel for the accused Saood Aziz ( the thenCPO, Rawalpindi) and Khurram Shahzad ( thethen SP Rawal) argued that prosecution hasmiserably failed to prove any conspiracy forthe murder of Mohtrama Benazir Bhutto. Thatboth the police officers were upright havingbrilliant record of their service. That theobservation made by his Lordships in bailorder dated 5.4.2011 passed by the Hon’bleLahore High Court must be considered in theirfavour as said order had attained the finalityand it was never challenged by theprosecution. That although place of occurrencewas washed but after collecting all thenecessary evidence from the crime scene.That since the place of occurrence is very busyroad and after the occurrence people hadstarted rushing to the place of occurrencewhere Mohtrama Benazir Bhutto had died dueto which decision of washing the place ofoccurrence was taken and same was correct.That unfortunately the man who wasresponsible for taking such kind of decisionwas DSP lshtiaq who had received injuries andhad been shifted to the hospital and in hisabsence, the concerned S.H.O of the RS CityKashif Riaz inspector was responsible. Thatthere was no malice or malafide behind thedecision taken by the accused KhurramShahzad regarding washing of crime scenebecause no evidence had last due to washingthe crime scene. That the statements of thePWs Kashif Riaz Complainant, Dr. AbdulRehman District Emergency officer Rescue,Khalid Qureshi DG FlA Head of JIT, GhulamMuhammad Assistant Fire Officer Rawalpindihave supported the version of the accusedKhurram Shahzad. That the prosecution hasfailed to prove any negligence on the part ofthe accused Saood Aziz and Khurram Shahzad.That the postmortem of Mohtrama BenazirBhutto was not conducted only due to thereason that her husband Mr. Asif Ali Zardari

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17.18.

had not given permission to do so and evenotherwise non conducting the postmortem ofMohtrama Benazir Bhutto was not fatal for theprosecution because required medicalevidence including MLR and X-rays ofMohtrama Benazir Bhutto had already beenobtained which were later on proved to besufficient to give the cause of death ofMohtrama Benazir Bhutto mentioned in theconsolidated report of doctors of RGH. Thatthe role of Dr. Musadiq while dealing with thedead body of Mohtrama Benazir Bhutto wasdubious, non professional and incompetent.That the Rehman Malik was the SecurityAdvisor and Incharge of the security ofMohtrama Benazir Bhutto as per internaldecision of the official of Pakistan People Partyand Major ® Imtiaz SSP was the officerIncharge officially deputed for her security.They both were inside the vehicle at the timeof occurrence, who should have stoppedMohtrama Benazir Bhutto not to expose herselffrom the vehicle but they have not fulfilledtheir responsibility. That the main beneficiariesafter the death of Mohtrama Benazir Bhuttowere Mr. Asif Ali Zardari who had becamePresident of Pakistan in the consequence of theoccurrence and Rehman Malik who hadbecame Interior Minister were to beinterrogated as an accused but non of theinvestigating agency bother to join them in theinvestigation and lastly prayed for the acquittalof the accused persons.

Arguments heard record perused.Perusal of record reveals that total 15

names of the accused persons were mentionedin the report u/s 173 Cr. P.C, amongst themaccused Baitullah Masood, Ubaid Ur Rehman,Abdullah, Nasarullah, Nadir alias Qari Ismailwere reported to be killed and the accused FaizMuhammad and Ikram UIIah were mentionedas proclaimed offender. The remaining accusedwho had faced trial can be divided into threecategories for the purpose of judicial scrutinyof evidence available on the record againstthem as mentioned below:‑First set of the accused persons namely:1. Rafaqat Hussain2. Husnain Gul3. Etizaz Shah

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4. Sher Zaman5. Rasheed AhmadSecond set of the accused persons namely:1. Syed Saood Aziz the then CPO Rawalpindi.2. Khurram Shahzad the then SP Rawal town

Rawalpindi.Third set of the accused namely:General ® Syed Pervaiz Musharaf the thenPresident of Pakistan.

The prosecution has leveled allegationsof hatching a criminal conspiracy for themurder of Mohtrama Benazir Bhutto against allthe accused persons with further specificallegation against the accused personsRafaqat Hussain, Husnain Gul, Rasheed Ahmedand Etizaz Shah that they were handlers withlogistic support by aiding, abetting, terrorismand murder of Mohtrama Benazir Bhutto andalso that they had conceded the informationabout the commission of crime. The allegationsagainst the two police officials Saood Aziz thethen CPO and Khurram Shahzad the then SPthat they had caused breach of security bydeliberately withdrawing Ashfaq Anwar ASPwho was deputed for the Mohtrama BenazirBhutto‘s escort duty. Destruction of evidenceby ordering the crime scene to be washedand avoided to get conduct postmortem ofMohtrama Benazir Bhutto.

The first point to be determine iswhether the prosecution has succeeded inproving the alleged criminal conspiracy for themurder of Mohtrama Benazir Bhutto.section 120-A PPC gives the defination of acriminal conspiracy as under:-”When two or morepersons agree to do. or cause to be done, (12an illegal act, or(2) an act which is not illegal by illegal means such anagreement is designated a criminal conspiracy: Provided thatno agreement except an agreement to commit an oflence shallamount to a criminal conspiragz unless some act besides theagreement is done by one or more parties to such agreement inpursuance thereot."

To establish the conspiracy, prosecutionhas to prove beyond all reasonable doubtagreement between the accused persons tokill the deceased.

In this regard prosecution produced PW‑30 Bregadiar ® Jawed Iqbal Cheema whostated that on 28.12.2007 he was DirectorGeneral NCMC Ministry of Interior Govt ofPakistan Islamabad and he was called to attend

22.

a meeting at ISI head office Islamabad, therelevant portion of his statement is reproduced as under:‑

“The meett_ng’ was attended by DG ISI , DG 18 andDGM I , in the leading to the assassination at Mohtrama BenazirBhutto, I and secretary Interior was further told that, it wasdecided in the meeting. Chairedby the President that a l l tactsknown to the intelligence agencies so tar should be shared tothe public through a press briefing by me as spokesmanMinistry at Interior.

Durin the meetin we were iven a brie m bDGfCl, Maior General Nusrat Naeem in which the [allowingmaterialwas handedover to me.

1. Video tootage ot the incidentPW- 24/PI.2. Audio cassette ot intercepted conversation

by the I S I between Baitullah Masood and oneMolv iPW-30/PI.

3 . w w w ‐ a r i a !BenazirBhutto PW-30/P

The crux of his statement was that hedisclosed an important fact about aconversation between Bait Ullah Masood andone Molvi which was intercepted by the ISI.The said conversation was translated intoUrdu language by the PW Mr. Tahir Ayoub thethen SP investigation Exh. PW-61/A. Beforecoming to the contents of the saidconversation between Baitullah Maood andone Molvi, it is important to mention here thatPW-30 Brigadier ® Javed Iqbal Cheema hadnowhere in his statement mentioned thesource as well as the manner of interceptingthe alleged conversation between BaitullahMasood and one Molvi. He had onlymentioned that he attended a meeting Inthe ISI head quarter where he was handedover the video footage of the incident, anaudio cassette of the intercepted conversationand an X-ray report of Mohtrama BenazirBhutto. He had not mentioned any where asto the person who had recorded the allegedconversation, however, on serial number 100,the name of Mr. Ismail operator ISI wasmentioned in the report u/s 173 Cr. P.C.Surprisingly said witness was given up by theprosecution and was not produced in thewitness box.

Article 129 of Qanun e Shahadat 1984,Court may presume existence of certain facts: TheCourt may presume the existence of any fact whichit thinks likely to have happened, regard being hadto the common course of natural events, human

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conduct and public and private business, in theirrelation to the facts of the particular case.(9) that evidence which could be and is not

produced would, if produced, beunfavourable to the person who withholds it ,‑Thus it is presumed by this court that thegiving up of the said witness by theprosecution goes against them.

Perusal of the statements of PW-61TahirAyoub SP investigation/ member of JlT (1)reveals that on 4.1.2008 a CD Exh. PW‐30/P.1containing telephone intercept in Pashtolanguage between Baitullah Masood and oneMolvi was translated by him into Urdulanguage but the question still remains as towhat was the source of knowledge and whohad recorded the audio of the saidconversation? The conclusion drawn by thiscourt, to the extent of the conversationbetween Baitullah Masood and one Molvi wasnot proved by the prosecution as there was nodirect evidence presented.

Before discussing and evaluating thelegal authenticity of the confessionalstatements of the accused Rafaqat Hussain,Husnain Gul, Rasheed Ahmed and Etizaz Shah,the relevant provision of law articles 37 ofQanun e Shadat order 1984, section 164 Cr. RCand section 364 Cr. P.C are mentioned belowfor the purpose of ready reference:‑

Art ic le 37 of Qanun-e-Sahadat o r d e r1984.

“Confession caused by inducement,threat or promise, when irrelevant in criminalproceeding: A confession made by an accusedperson is irrelevant in a criminal proceeding, ifthe making of the confession appears to theCourt to have been caused by any inducement,threat or promise having reference to thecharge against the accused person, proceedingfrom a person in authority and sufficient, in theopinion of the Court, to give the accusedperson grounds which would appear to himreasonable, for supposing that by making it hewould gain any advantage or avoid any evil ofa temporal nature in reference to theproceedings against him".Sect ion 1 6 4 Cr. P.C .

Any Magistrate of the first class and anyMagistrate of the second class speciallyempowered in this behalf by the Provincial

[(1A)

(2)

(3)

(1)

Government may. if he is not a police-officer,record any statement or confession made tohim in the course of an investigation under thisChapter or at any t ime afterwards before thecommencement of the inquiry or trial.

Any such statement may be recorded bysuch Magistrate in the presence of theaccused. and the accused given an opportunityof cross‐examining the witness making thestatement.|

Such statement shall be recorded in suchof the manners hereinafter prescribed forrecording evidence as is, in his opinion, bestfitted for the circumstances of the case. Suchconfessions shall be recorded and signed in themanner provided in section 364, andstatements of confessions shall then beforwarded to the Magistrate by whom the caseis to be inguired into or tried.

A Magistrate shall, before recording any suchgenfessien. explain 19 the perspn making it thathe is net bpgpg te make a chfessiQn end thati it i nc

‘n ' i tr rn | I s ' n l n

h r I th tnt ° ° n wh r

any confessipp. he shall make a memprendumat the foot of such record to the followingeffect: 'I have explained to (name) that he isnot bound to make a confession and that, if hedoes so, any confession he may make may beused as evidence against him and. I believethat this confession was voluntarily made. Itwas taken in my presence and hearing, andwas read over to the person making it andadmitted by him to be correct, and it contains afull and true account of the statement made byhim.

Whenever the accused is examined by anyMagistrate or by any Court other than a HighCourt the whole of such examination, includingevery question put to him and every answergiven by him. shall be recorded in full, in thelanguage in which he is examined, or, if that isnot practicable. in the language of the Court orin English; and such record shall be shown orread to him or if he does not understand thelanguage in which it is written, shall beinterpreted to him in a language which he

(2)

(3)

(4)

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understands. and he shall be at liberty toexplain or add to his answers.

When the whole is made conformable towhat he declares is the truth, the record shallbe signed by the accused and the Magistrate orJudge of such Court. and such Magistrate orludge shall certin under his own hand that theexamination was taken in his presence andhearing and that the record contains a full andtrue account of the statement made by them

In a case in which the examination of theaccused is not recorded by the Magistrate orludge himself. he shall be bound as theexamination proceeds, to make memorandumthereof in the language of the Court or inEnglish, if he is sufficiently acquainted withlatter language; and such memorandum shallbe written and signed by the Magistrate orJudge with his own hand and shall be annexed

t r r . If th i tr l- v

w I r f. ! ‘|'!‘ | I ti ll

apply to the examination Qfan accused parsgpti 2

So far as the confessional statements ofthe accused Rafaqat Hussain, Husnain Gul,Rasheed Ahmed and Etizaz Shah areconcerned, all of them have disowned theirconfessional statements in their statementsbefore this court u/s 342 Cr. P.C. Prosecutionhas brought confessional statement of theseaccused persons on record as Exh. PW-18/D,Exh.PW-18/J and Exh. PW-ll/B (Juvenile tr ia l )recorded by Ch. Muhammad ToufiqueMagistrate who appeared as PW-18 and PW‐11(in Juvenile tr ia l ) and confessional statementExh. PW-19/E of the accused Rasheed Ahmedwhich was recorded by the PW-19 Mr. AhmedMasood Janjua Special Judicial Magistrate.Perusal of record reveals that accused RafaqatHussain and Husnain Gul were arrested on72.2008 and their confessional statementswere recorded on 13.2.2008 with the delay of6 days. Accused Etizaz Shah was arrested on21.1.2008 and his confessional statement wasrecorded on 16.2.2008 with the delay of 27days and the accused Rasheed Ahmed was

arrested on 142.2008 and his confessionalstatement was recorded on 15.2.2008 with thedelay of one day, the captivity of theseaccusd persons has created doubts into thecredibility of their confessional statements. Asper principle laid down by the Superior courtswhile recording the confessional statementsthat too in crimes entailing the capitalpunishment, certain precautions were to beobserved by the Magistrate.

( i ) All the signs of fearinculcate by theinvestigating agency in themind of the accused wereto be shed out with theassurance that the accusedwould not be handed overback to the police.

( i i ) Accused must be givensurety that he was in safehands.

(iii) That all the police officialswhether in uniform orotherwise including Naibcourts of the court must bekept out side the courtroom beyond the view ofthe accused.

( iv) Volunteer nature of theconfession must be assuredand confessional statementshould be read over to theaccused in his ownlanguage and if the accusedis juvenile then he must beprovided access toconsultation by his bloodrelatives that the prerequisite for accepting theconfessional statementwas its volunteer natureand that too was based ontrue facts leading to thecrime which should beproved in the trial. Whilekeeping in view the abovesaid principles, theconfessional statements ofthe accused persons havebeen scrutinized asmentioned below:‑

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The accused Etizaz Shah was minor andwas separately tried under the Juvenile justiceSystem Ordinance 2000 who remained in thecustody of the police fo r 27 days and wasproduced by Tahir Ayoub SP before theMagistrate alongwith other police officials whowere standing out side the court room. TheMagistrate had not asked the accused evendate of his arrest in the case. Accused wasnot asked whether he wanted to consult anyof his blood relatives. The age of the accusedwas mentioned as 19 years old which wasfactually incorrect as later on he was foundjuvenile at the time of occurrence. Theaccused was handed over to the Naib court bythe Magistrate after recording his confessionalstatement to send him to judicial lockup. PWTahir Ayoub admitted in his cross examinationthat he did not state before the Chairman leKhalid Qureshi about recording theconfessional statement of the accused EtizazShah which created further doubts in theveracity of the confessional statement of theaccused. Therefore, in light of the above, thesaid confessional statement of the accusedEtizaz Shah is hereby disbelieved under thelaw.

On the other hand, PW Waqar AhmedChohan member of JIT had stated that on21.1.2008 he alongwith DSP Saddar and DSPCTD went to DI Khan Where Bashir HussainA.S.I had already arrested the accused EtizazShah and Sher Zaman in case FIR No. 23/08u/s 7 of Anti Terrorism Act P.S Cantt Dera GhaziKhan. Perusal of the contents of said FIR No.23/08 u/s 7 ATA PS Cantto reveals thataccused Etizaz Shah alongwith one Asmat Allwere intercepted by the DI Khan police whenthey were coming in a un registered car andFIR u/s 7 ATA was got registered against them.Hence, the question arises as to how the policeregistered an FIR under ATA when there wereno allegations regarding their involvement inany kind of terrorism as is evident from perusalof the contents of the FIR No. 23/08. This factalone was sufficient to create doubt in theprosecution story. The prosecution alsoremains silent and ignorant about the coaccused Asmat Ali, who was also arrested bythe DI Khan police alongwith the accusedEtizaz Shah.

28.

29.

So far the confessional statement of theaccused Rasheed Ahmed is concerned, hisarrest was shown on 142.2008 and he wasproduced for recording his confessionalstatement by Tahir Ayoub SP, however, TahirAyoub SP has nowhere mentioned in hisstatement that it was he who had producedRasheed Ahmed before the Magistrate forrecording his confessional statement and heremained silent to this extent. Even otherwisecontents of his alleged confessional statementreveals that he had no where admitted to hisparticipation in the alleged conspiracy orcommission of occurrence in any mannerwhatsoever, rather he stated that he wasinvolved in the incident of Missile Attack onAirnotical base and a separate case FlR No.14/08 was registered against him, but in thesaid case accused Rasheed Ahmed hadalready been acquitted vide judgment dated29.4.2010 in case FIR No. 14/08 P.S SaddarAttock by the then Judge Anti Terrorism CourtNo.|, Rawalpindi.

To the extent of confessional statementsof accused persons Husnain GUI and RafaqatHussain as per record their arrest was shownon 7.2.2008 when they were intercepted by thePS Westridge Rawalpindi police and recoveryof one detonator, 30 live bullets of 30 borepistol, one missed bullet and hand grenadewere allegedly recovered and case FIR No.76/08 PSWestridge was got registered againstthem. Recovery of above said explosive wasnot shown in the present case. Later on boththe accused persons were produced before theMagistrate for recording their confessionalstatement by the Tahir Ayoub SP PW-61 on13.2.2008. Perusal of record reveals that thearrest of both these accused Husnain GUI andRafaqat Hussain were shown in almost all thereports submitted by the FIA including finalreport u/s 173 Cr. PC as “5.1.2008" and theiralleged confessional statement was recordedon 13.2.2008 with almost delay of 1 monthand 8 days. During this period they remainedin custody with the police which has createddoubts as to the voluntary status of theiralleged confessional statements. It is alsoimportant to mention here that PW-62 WaqarAhmed Chohan AIG who was member of JIT /I.O had clearly stated that

30.

31 .

“ I i n te r roga ted t h e accused personsRa faqa t Hussain a n d Husnain G u l on

t h e fi r s t day w h e n I ob ta ined the i r phys ica lremand i .e 8 .2 .2008 a n d 20.2.2008”

It shows that both the accused personsRafaqat Hussain and Husnain Gul remained inpolice custody on 20.2.2008 after therecording of their alleged confessionalstatements which was recorded on 13.2.2008instead of being sent to judicial lockup, boththe accused persons remained in policecustody. This was contrary to the basicprinciple laid down by the Superior courtsand has made out the alleged confessionalstatements of these accused’s as aninadmissible piece of evidence. In view of theabove said discussion, the confessionalstatements of the accused persons which werebrought on the record by the prosecution areinadmissible piece of evidence and are notsufficient for the purpose of conviction in thiscase. Since this court has disbelieved theconfessional statements of the accused EtizazShah wherein he had allegedly mentioned thename of co accused Sher Zaman only to theextent that he was coming to meet him. Noother relevancies or involvement of theaccused Sher Zaman regarding hatching incriminal conspiracy for the murder ofMohtrama Benazir Bhutto were attributed.

Now coming to the extent of allegedrecoveries of one pair of Jogars, Chaddar anda cap of the suicide Bomber allegedly effectedfrom the accused Husnain Gul. It is alsoimportant to mention here that non of thesearticles were produced during the trial in thecourt as it was stated by the PW-42 IshfaqAhmed SI that said articles were sent for DNAtest but again surprisingly no DNA reportregarding the matching of these articles wasever produced before the court, it indicatesthat on each and every step prosecution hadfailed to continue the chain of facts to connectthe accused persons in criminal conspiracyfor the murder of Mohtrama Benazir Bhutto andtheir involvement in the occurrence.

Another aspect of the prosecutionevidence was based upon was call record dataof all the phone numbers allegedly attributedto the accused persons and 2 diariescontaining telephone numbers allegedly

32.

recovered from the accused Husnain Gul, toprove the link between all the accusedpersons. In this regard statement of PW-37Qamar Zaman Assistant Director / analyst CTWFIA is very much relevant wherein he statedthat Shoaib Ahmed inspector handed over tohim the call record data of mobile number ofNasarullah, Rafaqat Hussain accused, QariIsmail, Abdul Rehman, Mazhar ud Deen,Husnain Gul accused and Shah Wali Khan foranalysis of the connection between theaccused and their location who prepareddetail report Exh. PW‐37/A. During crossexamination only one question was put to thiswitness and in reply he admitted that he hadnot verified ownership of the cell phonenumbers provided to him by the LO for callrecord analysis. Therefore, in absence ofevidence to the extent of ownership of thesecell numbers, there was no question to believethe report Exh. PW.37/A and the statement ofPW-37 Qamar Zaman, thus he was of no use toestablish the link between accused personsregarding their location.

Another witness which is relevant to bediscussed was PW-13 Asif Manager co‑ordination of ufone head office Islamabad whostated in his statement that the number 0332‑5609682 as per his record was in the name ofMuhammad Sultan resident of Aibtabad andother Ufone number 0331-5013836 was in thename of some unknown person. SaidMuhammad Sultan was never interrogatedand joined into the investigation by any of theagency during investigation of this caseregarding the unknown number.

One of the number was a land linenumber 051-5575823 as per statement ofPW-7 Mirza Sarfraz employee of PTCL, the saidnumber was found in the name of one GhulamAbbas PW‐8 who appeared in the witness boxand stated that the said number was gotinstalled by him in July 2000 on his residenceand in the year 2003 a portion of his housewas rented out to one Sabir Hussain who wasfather of the accused Rafaqat Hussain andfather in law of accused Husnain Gul.Prosecution had not established that theportion of the house of Ghulam Abbas wasrented to Sabir Hussain. Neither any rentagreement nor any independent witness from

33.

34.

the locality was produced to establish this factand it was also not establish through evidencethat the accused Rafaqat Hussain and HusnainGul were residing in the said house. Saidtelephone number continued in the name ofGhulam Abbas up til l February 2009, even after3 years of the occurrence.

Therefore, prosecution has failed toestablish any link between these numbers asallegedly related with the accused.

For placing reliance on circumstantialevidence, in cases involving capitalpunishment, such evidence must be of nature,where, all circumstances must be so inter‑linked, making out a single unbroken chain,where one end of same touches dead body andother the neck of accused--Any missing link inchain would destroy whole and would rendersame unreliable for recording a conviction on acapital charge--In cases of circumstantialevidence, there were chances of procuring andfabricating evidence, therefore, Courts arerequired to take extra care and caution tonarrowly examine such evidence with purejudicial approach to satisfy itself, about itsintrinsic worth and reliability, also ensuring thatno dishonesty was committed during course ofcollecting such evidence by investigators-‑Where there were apparent indications ofdesigns on part of investigating agency inpreparation of a case resting on circumstantialevidence, Court must be on its guard againsttrap of being deliberately misled into a falseinference--Court's failure to observe such careand caution would be a failure of justice. Noone could be convicted on the basis ofpresumption, however strong it may be, assame cannot be substituted for real evidence/proof.

Therefore, it is concluded to the extent ofcriminal conspiracy that prosecution hasmiserably failed to prove any of theingredients and links between all the accusedpersons namely Rafaqat Hussain, Husnain Gul,Sher Zaman, Rasheed Ahmed and Etizaz Shahto constitute offence uIs 120-B/302/34 PPC. Asfar as the accused General ® Pervaiz Musharafis concerned his trial has already beenseparated and would be decided at the timeof commencement of his trial.

35. The second set of accused persons wereSaood Aziz the then CPO , pr and KhurramShahzad the then SPRawal town, Rawalpindi.The prosecution mainly leveled 3 allegationsagainst them. That they had caused a breachof security by deliberately withdrawingAshfaq Anwar the then ASP who was deputedwith a specific task of Mohtrama BenazirBhutto’s escort duty. That they disclosed thedestruction of evidence by ordering thewashing of crime scene and that they avoidedto get conduct postmortem of MohtramaBenazir Bhutto and in this regard relied uponthe following evidence:‑PW-15 Ghulam Muhammad Naz Assistant Fireofficer p r , the relevant portion of hisstatement is re produced as under:‑

“ At about 6.20 PM, one A.S.I who was in uniformbut his name was not written on his badge, therefore, I donot know his name and he said that the SP is saying that

and sai that theShahzad and he was SP Rawal Town and he told me thataccording to the SP they have collected all theincriminating evidence and that we should wash the bloodfrom the spot. Dr. Abdul Rehman further told me that hehad asked the SP tQfurther confirmed the washing of spotupon which the SP talked to someone on his mobile phoneandhe told Dr. Abdul Rehman that the place be washed."PW‐16 Dr. Abdul Rehrnan District Emergency,Punjab Emergency Service Rescue 1122, therelevant portion of his statement is re producedas under:-

"After some time. I saw Mr. Ghulam MuhammadNaz Assistant Fire offier Cigr District Government openingup the hose of fire vehicle and started washing of incidentsite. I went to him and stopped him. I said what are youdoing, he replied that mlice was asking him to hose downthe crime scene. I said please wait and let me asked fromsome senior officers in this regard. I was accompaniedwith Mr. Walayat Satti who was one volunteer of civildefence office, p r . l went to SP Khurram Shahzadpresent in the court, who was standing at the incident side.I said what is the next order for us. He said OK, scene isclear and you can wash it, before saying that he alsocalled someone from his mobile phone"

PW-35 Yaseen Farooq who attended thesecurity arrangement meeting, the relevantportion of his statement is re produced asunden‑

" It is correct that I had mentioned in my statementu/s 164 Cr. P.C at page No. 11 Exh. PW-36/A that themotorcade comprising upon 3 vehicle a head of MohtramaBenazir Bhutto quickly went towards Islamabad and twoW i g ‐ m u ginformed that her vehicle would stop there. I noticed thatIshfaq Anwar ASP was not there and the vehicle of Eliteforce was also not visible, which was alarming"PW-38 Ishfaq Anwar the then ASP Supervisorof 3 elite sections and deputed Incharge forthe security of Mohtrama Benazir Bhutto, therelevant portion of his statement is re producedas under:-

“I received call on my cell phone of Saood Azizthe then QPO ( accused present in the court) who orderedme to reach Koral Chowk alongwith two stand by reservesof police, because of an incident of firing took place on1 5 WPW-41 Dr. Musadiq principal RawalpindiMedical college and chief executive ofteaching Hospital Rawalpindi, the relevantportion of his statement is re produced asunden‑

W W Wexact cause was this wound and what was the extent ofini_u_ries to the brain and if there was any other iniury thatwas missed. Those things would have established theexact cause of death. Post mortem examination wouldhave included detailed forensic examination of the wouldalongwith necessagr examinatioanc/uding examination ofbrain. That was to be conducted by a team specified forsuch purpose i.e forensic team. All the dead bodiesrequiring autopsy in RGH hospital were done at DisttHeadquarter Hospital . pr and the dead bodies are to beshifted there for autopsy.

In criminal cases. the police reguest for postmortem examination and the body is shifted to DHQ , prunder their supervision for the post mortem. There was alot of crowd present out side the operating room and theywere continuing/y trying to enter in the room and most ofthe efforts by the hospital administration were beingdirected towards controlling this crowd, as police was notpresent in the operating room. There was pressurebecause other causalities were being brought in, so muchso that , an iniured person was brought in the operatingroom by the family members, where body of MohtarmaBenazir Bhutto was lying. That person was shifted to thenext operating room and his operation was carried outthere.

Later After Mohtarma Benazir Bhutto was declareddead discussion was_ held with then CPO Saood Azizaccused present in court, about postmortem of MohtarmaBenazir Bhutto . His response was that F.I.R is pre‑requisite for an autopsy and he asked me , “Has F.I.Rbeen lodged?”, I asked him how would I know. The UNcommission in its report has described this (conduct ofCPQi is as, a sarcastic response of the CPO. (underobiectioni I however, would only confined to the facts andnot draw any inferences as peras the thinking of CPO wasconcerned. The UN cpmmission had attributed thisinteraction to the time , the request was made a secondtime. I however, recollected vividly that this interaction tookplace while request was made for the first time.

Discussion was held amongst the medicalpersonnel, present there and a clear need for autopsy wasfelt. 2 portable X-rays of her head had been taken. Thethen CPO (Saood Aziz accused present in pourti wasagain approached and it was suggested to him that thedetailed forensic examination of the wound be carried outso that the exact cause of wound could be determined.His response was, that Mr. Ameen Fahim has directed thatMR. AsifAli Zardari would make a decision about the post

W W W .

w a g ‐ “ M M !223: HE !i !EQ, I !l '.WM

during that time but I am not certain whether he waspresent near by when those discussion was taking place.We did not however, discuss this issue specifically withhim as it was not his domain. I did not discuss the issue ofPM with any leader of PPP who were present there. I wasnot privy to the discussion that the then CPO Saood Aziz(accused) aalluded to with Ameen Fahim.PW-53 Haji Khalid Mehmood injured witness,the relevant portion of his statement is reproduced as under:‑

" There was no security at all around the vehicle ofMohtrama BenazirBhutto at that time"PW-54 Riaz Ali injured witness the relevantportion of his statement is re produced asunden‑

“ There was no security at all around the vehicle ofMohtrama BenazirBhutto at that time"PW-57 Javed ur Rehman driver of MohtramaBenazir Bhutto, the relevant portion of hisstatement is re produced as under:‑

" At about 5.00 PM it was about to be dark whenwe left for Islamabadfor Liagat Bagh as soon as I startedmoving the vehicle towards lslamabad, there was nopolice/ security guard and no police officials deployedaround our vehicles"

36.

PW-61 Tahir Ayoub SSP the then SPinvestigation] investigating officer/ Member ofJIT, the relevant portion of his statement is reproduced as under:‑

“ Then CPO Rawalpindi ordered to Mr. lshfagAnwar then ASP Civil Lines who was deputed for thesecurity of Mohtrama BenazirBhutto and I heard the call ofCPO, who ordered the Ishfag Anwar to reach at KoralChgwk, then I informed the then CPO through telephoniccall that the incident fall within the limits of Islamabadterritory and where IslamabadPolice officers were alreadypresent there. Then I was ordered to come back to placeof my dgty. The same order was passed by the then CPOto Ishfag Anwar and ordered lshfag Anwar ASP to reportbefore me alongwith the police officials”

The relevant law in this regard is alsomentioned below:‑174 Cr. P.C. Police to inquire on suipide, etc.

(1! The officer Incharge of a police-station or someother police officer specially empowered by the ProvincialGovernment in that behalf, on receiving information that a person:

(3)

37.

(a) hammmttteisutctdefl(b) w w w. .

W W W ‐ W M.W W Wl ! ! ! ’ ! l ' ! ' fl ' ' l ! ! f

peaaest QM! 5 m m , g: gthez: qualified megipal mapappointed in this behalf by the Provincial Government, ifthe state of the weather and the distance admit of its beingso fon/varded without n'sk of such putrefaction on the roadas would rendersuch examination useless.

Relevant provision of law relating withthe accused police officers are also reproduced for the ready reference:‑Sect ion 2 0 1 PPC_.

Caus ing d i sappearance o f ev idenceof offence, or g i v i n g fa l se in format ion toscreen offender : "Whoever, knowing orhaving reason to believe that an offence hasbeen committed, causes any evidence of thecommission of that offence to disappear, withthe intention of screening the offender fromlegal punishment, or with that intention givesany information respecting the offence whichhe knows or believes to be false;I f a cap i ta l o ffence: shall i f the offencewhich he knows or believes to have beencommitted is punishable with death, bepunished with imprisonment of eitherdescription for a term which may extend toseven years, and shall also be liable to fine"

38C

39.

Section119 PPC“Public servant concealing design to

commit offence which it is his duty to grevent:Whoever, being a Qublic servant intending tofacilitate or knowing it to be likely that he willthereby facilitate the commission of an offencewhich it is his duty as such Qublic servant toQrevent, voluntarily conceals, by any act orillegal omission, the existence of a design tocommit such offence, or makes anyrepresentation which he knows to be falseresgecting such design, if offence becommitted: shall, if the offence be committed,be punished with imQrisonment of anydescriQtion Qrovided for the offence, for a termwhich may extend to one half of the longestterm of such imQrisonment, or with such fineas is grovided for that offence, or with both; ifoffence be Qunishable with death, etc: or if theoffence be Qunishable with deathimQfl'sQameat fQL l i t ewwith!imQristnment an

th r ri nMilli-16.5”

Arguments of learned defence counselfor the accused Saood Aziz and KhurramShahzazd is that their bail granting orderpassed by the Hon'ble Lahore High courtdated 5.42011 may be considered in thefavour of the accused because it had attainedthe finality as it was never challenged, has noforce because it is settle law that ball ordersare based upon tentative assessment ofevidence and has no impact what so ever onthe final judgment after the trial.

The conclusion drawn by this court isthat the Elite police unit who was suppose toprovide the box security for Mohtrama BenazirBhutto vehicle was not available and wasremoved by the accused Saood Aziz the thenCPO. There was no emergency plan in case ofany undue incident. Vehicle of MohtramaBenazir Bhutto after the occurrence was leftalone because of the absence of police escortwhich could have escorted her vehicle toquickly reach the hospital. Decision to usefire hose on the crime scene within 1 hourand 40 minutes of the occurrence was unjustified and had resulted in destroying thecrime scene, this destruction made itextremely difficult to collect more evidencefor DNA tests. The act of both the police

officers constituted as criminal negligencewhich had caused irreparable damage to thecrime scene. The non conducting ofpostmortem on the dead body of MohtramaBenazir Bhutto also damaged investigation dueto which clear cause of death of MohtramaBenazir Bhutto was not established. Nonconducing of postmortem on the dead body ofMohtrama Benazir Bhutto and washing of crimescene within an hour were also admittedfacts in this case and removal of the Inchargelshfaq Anwar ASP from the duty wassuccessfully proved by the prosecution.

40 . As a sequel of whole of the abovediscussion, the prosecution is found to havemiserably failed to prove its case againstaccused Rafaqat Hussain, Husnain Gul,Rasheed Ahmed and Sher Zaman beyond anyshadow of doubt, hence, they are acquitted bygiving benefit of doubt.

41. However, the prosecution hassuccessfully proved its case against theaccused Saood Aziz CPO and Khurram ShahzadSP, to the extent of their criminal negligence inperforming their duty, therefore, they areconvicted and sentenced as under:‑1. QLS 112 egg Impr ispnment f p r

10 Years R . l each w i th fi n e of Rs.500 0 0 0 - fi v e lacs each in caseo f de fau l t o f fine. t h e y sha l l s u f f e rf u r t he r impr isonment f o r t h e p e r i o d

o f 6 m o n t h s S J each.

2 . UZS 2 0 1 PPC Impr i sonmen tf o r 7 Ye a r s R . l w i t h fi n e o f Rs .500 0 0 0 - fi v e lacs each in case ofde fau l t o f fine. t h e y sha l l su f fe r

f u r t he r imp r i sonmen t f o r t h e pe r i odo f 6 months S . l each.

42 . The convicted accused would beentitled to the benefit of Sec. 382‐B Cr.P.C andboth the sentences shall run concurrently.

43. Both convicts on bail, be taken intocustody and sent to jail lockup to serve outsentences awarded to them. Copy of the

44 .

judgment is delivered to the convicts free ofcost forthwith. Case property if any isconfiscated in the favour of the state, however,the same shall remain intact till the finaldisposal of appeal or revision if any.

Third set of the accused was comprisingupon accused General ® Pervaiz Musharaf thethen president of Pakistan. During trial hisapplication for exemption of his personalattendance was accepted by the then JudgeATC-l, pr vide order dated 20.8.2013. Till theconclusion of prosecution evidence and at thetime of recording of his statement u/s 342 Cr.P.C he was repeatedly summoned by this courtand his non bailable warrant of arrest was alsoissued on 17.4.2017. On 29.4.2017, statementof Shahab Azeem Deputy Director FIA recordedregarding non execution of warrants of arrest.However before initiating proceeding u/s 87/88Cr. P.C against the accused Pervaiz Musharaf,an option was given to him to record hisstatement through video link or Skype buteven then he did not show any response torecord his statement through video link orskype. Resultantly, there was no other optionleft with the court except to separate the trialproceeding of the accused General ® PervaizMusharaf u/s 540-A Cr. P.C, therefore, to theextent of his trial, proceedings were separatedvide order 8.5.2017. While relying on hisdeliberate absence from the court, statementof process server recorded on 29.4.2017 issufficient to declare him Proclaimed offenderin this case. Proceedings u/s 88 Cr. P.C shallbe initiated and his perpetual non bailablewarrant of arrest be issued. Almad of this courtis directed to prepare a separate file regardingthe proceedings u/s 88 Cr. P.C against theaccused Pervaiz Musharaf. File be consigned tothe record room.

Announced:31.8.2017

Muhammad Asghar Khan,Judge, Anti Terrorism, Court NO.I,

Rawalpindi.It is certified that this judgment consists of (34

) pages and each page has been dictated, read,corrected and signed by me.31.8.2017

Muhammad Asghar Khan,

Judge, Anti Terrorism Court No. I,Rawalpindi.

For placing reliance on circumstantialevidence, in cases involving capitalpunishment, such evidence must be of nature,where, all circumstances must be so inter‑linked, making out a single unbroken chain,where one end of same touches dead body andother neck of accused--Any missing link inchain would destroy whole and would rendersame unreliable for recording a conviction on acapital charge--In cases of circumstantialevidence, there were chances of procuring andfabricating evidence, therefore, Courts wererequired to take extra care and caution tonarrowly examine such evidence with purejudicial approach to satisfy itself, about itsintrinsic worth and reliability, also ensuring thatno dishonesty was committed during course ofcollecting such evidence by investigators--Where there were apparent indications ofdesigns on part of investigating agency inpreparation of a case resting on circumstantialevidence, Court must be on its guard againsttrap of being deliberately misled into a falseinference-‐Court's failure to observe such careand caution would be a failure ofjustice.

Arguments of learned defence counselfor the accused Saood Aziz and KhurramShahzazd is that their bail granting orderpassed by the Hon'ble Lahore High courtdated 5.4.2011 may be considered in thefavour of the accused because it had attainedthe finality as it was never challenged, has noforce because it is settle law that ball ordersare based upon tentative assessment of

evidence and has no impact what so ever onthe final judgment after the trial.

Judgments referred by the prosecution:‑

19.

1996 SCMR 908.PSC 1989 533.2004 PCr.L.) 132b.2009 PCr.L.) 91 ( Peshawar).PLD 1996 Federal Shariat Court1976 PCr. L.) 301.1986 PCr. L.) 2233.1998 PCr. L.) 2022.1985 PCr. L.) 463.1998 SCMR 1778.1998 PLC ( C S ) 1430A.I.R (35) 1948 ALLAHABAD 168(C.N.73).A.I.R 1935 Oudh 4682013 P Cr. L.) 1254 (|s|amabad).PLD 2007 Supreme Court 202.2013 MLD 632 ( Peshawar).2013 PCr. L.) 229.2007 P Cr. L.) 517 ( Federal ShariatCourt).2006 SCMR 366 ( Supreme Court ofPakistan).

Judgments referred by the learneddefence counsel Malik Rafique Khan advocatefor the accused Saood Aziz and KhurramShahzad.

1. 1994 P Cr. L.) 20 ( Supreme AppellateCourt).

. 2012 YLR 1502 (Lahore).1969 SCMR 467.

A.I.R 1925 Allahabad 230.. A.I.R (38) 1951Calcutta 531. A.I.R 1933 Calcutta 36.. NLR 1991criminal 163.. NLR 1991Criminal.

2012 P Cr. L.) 1691( Balochistan).1986 PCr. L) 2243 ( Karachi).1998 P Cr. L.) 1486 ( Karachi).1992 P Cr. L.) 58 ( Karachi).PL) 2006 Cr. C ( Pesh) 804 DB.NLR 1991Criminal 163.1994 Perl.) 20.1995 PerL.) 1424.PLD 1986 Quetta 26.PLD 1970 (Karachi) 15.1989 Pcr. L) 380P S C 1989 533.

Judgments referred by the learned defencecounsel Malik Malik Jawad Khalid advocate forthe accused Rafaqat Hussain and Husnain Gul.

39

1996 P Cr. LJ 358 ( Peshawar).. 1996 P Cr. LJ 546 ( Peshawar).. 1996 P Cr. L] 771 (Karachi).

2003 P Cr. LJ 1071 ( Peshawar).1997 SCMR 1180.2002 PCr. LJ 1670.2005 SCMR 383.

. 2009 P Cr. L] 573.2005 P Cr. LJ 1294.

2005 SCMR 2772005 YLR 1297.

2010 SCMR 55.PLD 2006 Supreme Court 219.

PLD 2006 Supreme Court 354.2005 SCMR 523.PL] 2002 ( Lahore) 533.

2012 SCMR 1092017 SCMR 986.2001 PCr. L] 862005 PCr. LJ 1198.2001 PCr. L] 578.PLD 1096 (W.P) Karachi page 697 .PLD 1960 (W.P) Karachi 712.P Cr. L] 130PCr. L.) 1996 136.A.I.R 1927 Sind 241.

A.I.R 1927 Sindh 245.SCMR 1998 570.PLD 1968 Lahore 49.PL] 1997 Cr. C ( Quetta) 801 DB.P Cr. L.) 391.P Cr. L.) 1974 Karachi 400.PLD 1965 ( W.P) Karachi Karachi

76.SCMR 1996 1553SCMR 1996 1559P Cr. LJ 1976 Lahore 249.SCMR 1996 908SCMR 1996 920SCMR 1993 550.

Judgments referred by the learneddefence counsel Rao Abdul Raheem advocatefor the accused Rasheed Ahmed.

. 2017 SCMR 986(C ).2017 SCMR 898 ( b & C).

. 2016 SCMR 274 ( C & D).

. 2016 P Cr. L] 1608 (a & b).

. 2006 P Cr. L] 364.

. 2012 MLD 1358 ©.

. 2003 P Cr. L] 1608 (a).

. 1984 P Cr. L.j Karachi 2663.

. PLD 1981 Karachi 1000 (a).10. PLD 1981 Karachi 314 (a).11. 1998 P Cr. LJ 1274(b).12. 2001 SCMR 424 (X).13. 2012 YLR 1502 ( B & C).14. 1998 P Cr. L] 1486 (b).15. 1985 P Cr. L] 1486 (b).16. 1985 P Cr. L] 1486 (b)17. 1985 P Cr. L] 2638 (b& d).18. 2017 SCMR 486 (d)19. 1996 SCMR (D).20. 2005 P Cr. L] 53 ©.21. 2013 SCMR 274 (i).22. 2007 P Cr. L] 416 (b).23. 2006 P Cr. LJ 364.

Judgments referred by the learned defence counsel RaoNaseer Ahmed Tanooli advocate for the accused Etizaz Shah.

1. 2008 P Cr. L] 87 ( Karachi).2. PL] 2002 Cr. C ( Peshawar) 1403 (DB).3. PL] 2005 SC159.4. 2017 SCMR 898