P L D 2008 Supreme Court 503 (PLP)

SHEIKH HAKIM ALI, J.

A murderer of three lives, one of them an innocent baby of four months and two other women, is the appellant of present appeal, who has assailed the convicting judgment dated 3-9-2001, delivered by learned Lahore High Court Rawalpindi Bench, which has affirmed the penalty of death, pronounced upon the appellant, by learned Judge Special Court-II, Anti-Terrorism Court Rawalpindi on 23-10-1999.

2. The beginning of instant criminal case was the result of a statement made by one Muhammad Nazir son of Fazal Hussian caste Awan, resident of Farid Kasar, Tehsil and District, Chakwal, which was narrated by him to S.-I./S.H.O. Chakwal Police Station, on 23-4-1999, (vide Exh.PA) registered at the Police Station at No.71 in the register of First. Information Report, under section 302 of the P.P.C. As per version of Muhammad Nazir his sister Mst. Begum Noor was married to Subedar Murid Hussian, who was residing in Mohallah Umerabad, Tehsil Chakwal, since 14/15 years ago. Murid Hussain had expired about one year before the incident, whose two sons Sajid Mehmood and Tahir were in service at Karachi. The elder son namely Sajid Mehmood was married one year before with Mst. Samina Begum from whose womb baby, namely, Aqsa was born who was of four/five months of age, alive and residing with Mst. Begum Noor. On 23-4-1999 Muhammad Saced Komhar was sent to inform Mst. Begum Noor with regard to death, having taken place in Farid Kasar village. But upon his return, it was apprised by him to the informant that house of Mst. Begum Noor was locked. At about 3-00 p.m., when funeral prayer was offered in Village Farid Kasar and Mst. Begum Noor had not arrived in that village, the informant felt perturbed, so he reached the house of Mst. Begum Noor to discover as to why she had not arrived. He found the outside gate locked and smoke of fire was blowing out from inside the house. He immediately with the assistance of neighbours and others namely, Iftikhar Hussain (P.W.2) and Muhammad Bashir (P.W.11) unlocked the house, with their help opened the door, and disconnected the electricity and gas connections. Through telephonic message, he informed the Fire Brigade, the staff of which had reached at the spot with tank and the fire was extinguished. After that, they found in the house dead bodies of his sister Mst. Begum Noor, Mst. Samina Begum, daughter-in-law of aforementioned Mst. Begum Noor and baby, namely, Aqsa, whose throats were found cut. As the murderer was not known, so no person was nominated in the aforesaid F.I.R. Upon the imparting of those informations, investigation had commenced. On 27-4-1999 when Zafar -ul-Islam, member of District Council, Chakwal and Amir Muhammad Khan Lamberdar, were present in the house of Muhammad Nazeer for offering Fateh Khawani of his deceased sister, Muhammad Latif, the present accused asked the aforementioned witnesses to give him sometime for having a talk of very important nature. When they came to the drawing room (Baithak) of Amir Muhammad Khan, aforesaid Muhammad Latif, the present appellant, disclosed there, the commission of the offence of murder of Mst. Begum Noor, Mst. Samina Begum and the minor Aqsa. Upon this disclosure, both these persons escorted the appellant to the Police Station but in the way S.H.O. Mansaf Khan met them, to whom the accused was handed over. After usual investigation, the police found guilty the accused for the commission of offence of killing of three human beings, so he was sent up to face the trial before the learned Judge Special Court-II, Anti-Terrorism, Rawalpindi.

3. After the accused was charge-sheeted on 15-9-1999, the prosecution produced as many as 19 witnesses, whose names are given as under:-- Muhammad Nazir (P.W.1) Iftikhar Hussain (P.W.2) Zafar-ul-Islam (P.W.3) Amir Muhammad Khan (P.W.4) Saeed Asghar (P.W.5) Muhammad Aslam (P.W.6) Muhammad Sharif (P. W.7) Khalil Ahmed (P.W.8) Safdar Hussain (P.W.9) Sajid Mehmood (P. W.10) Muhammad Bashir (P.W.11) Dr. Bushra Naz (P. W.12) Dr. Munir Ahmed Langa (P. W.13) Muhammad Hafeez (P.W.14) Ghulam Mustafa (P. W.15) Muhammad Yousaf (P. W.16) Mansaf Khan (P. W.17) Raja Sultan Fiaz Kayani (P. W.18) Muhammad Ashraf (P. W.19)

4. The statement of Muhammad Latif under section 342 of the Cr.P.C. without oath was recorded on 15-10-1999. He also produced two witnesses namely, Abdur Rehman and Ahmed Din, who had appeared as D. W.1 and D. W.2 in defence evidence. The evidence of both these witnesses is with regard to the gentleman reputation of the accused. Learned Judge Special Court-II, Anti-Terrorism Rawalpindi on 23-10-1999 found the appellant guilty for the commission of a terrorist act and had convicted him under section 7-1(a) of the Anti-Terrorism Act, 1997 and punished him with death. Appellant was also convicted under section 302(h), of the P.P.C. and punishment of death was awarded to him on three counts. He was further ordered to pay compensation of Rs.200,000 to the legal heirs of the each deceased or to suffer simple imprisonment of 6 months against each default to pay the compensation. He was further convicted under section 201 of the P.P.C. with rigorous imprisonment for a term of 7 years and with a fine of Rs.10,

000. In default to pay the amount of fine to suffer simple imprisonment for two years. This judgment, which was pronounced upon the appellant by learned Judge Special Court-II, Rawalpindi on 30-10-1999 was appealed against in the Lahore High Court, Rawalpindi Bench, from where the same became the fate of the appellant, as the sentence was affirmed by the learned Judges of the Division Bench of the aforementioned Court, on 3-9-2001.Hence this Jail Petition No.39 of 2002, which was whereafter converted into Criminal Appeal No.57 of 2003 by granting of leave.

5. Although appeal is barred by 130 days but for the safe administration of 'criminal justice, the delay has been ignored and condoned.

6. Learned counsel appearing on behalf of the appellant on State expense has made the following submissions to obtain acquittal or in the alternative conversion of the death sentence to that of life imprisonment of the appellant: (i) The occurrence was un-witnessed, therefore, for the safe administration of justice the appellant might have been acquitted. (ii) Appellant has been convicted upon circumstantial evidence, which may be best but it cannot bring conviction of the petitioner as the appellant was not connected with the commission of the above noted offences. (iii) Punishment of death is uncalled for in the instant case as the prosecution has failed to prove the motive for the commission of offence, therefore, it may be treated as mitigating circumstance for conversion of death sentence to life imprisonment. (iv) Alleged Extra-judicial confession of the appellant before Zafar -ul-Islam (P.W.3) Member, District Council and Amir Muhammad Khan, Lambardar of Farid Kasar (P.W.4) being a weakest piece of evidence should not have been believed to award capital punishment of death.

7. Learned counsel appearing on behalf of informant Muhammad Nazir has responded to the arguments by stating that the case against the appellant was fully proved on the record through the following evidence, which are paragraphed in the following form:-- (a) There was no enmity with the appellant of the informant. It was, therefore, appellant was not nominated in the F.I.R. from the inception. It was the disclosure made by the appellant himself before impartial and independent witnesses (P.W.3) Zafar-ul-Islam, Member District Council and Amir Muhammad Khan (P.W.4), Lambardar Farid Kasar, respectively, who had produced him before the S.H.O. concerned. (b) Upon the information which the appellant had given to the police, fruit chat was recovered, which was found containing tranquillizar, which was administered by the appellant to Mst. Begum Noor and Mst. Samina Sajid, the unfortunate victims of the occurrence. (c) After examination of the dead bodies of Mst. Begum Noor and Mst. Samina Sajid from their stomach tranquillizar was also detected. (d) Blood stained churry (P-15) got recovered by the appellant himself from the house in question. The blood found upon the churry was found to be of human origin by the report of Chemical Examiner. (e) Blood-stained Shalwar (P.5) was also got recovered by the appellant from his own house of village Rawalzar, which was also found blood-stained. (f) Four gold bangles, which were removed by the appellant from the arm of Mst. Samina Sajid were sold to Al-Hafeez, a Goldsmith at Taxila (P.W.14), which fact was also disclosed and those were got recovered by him. (g) The last seen evidence of Iftikhar Hussian (P.W.2) who had noticed Muhanunad Latif accused putting lock on the outer gate of the door of the house of Mst. Begum Noor on 3-4-1999. (h) All the P.Ws were independent witnesses having no aim or purpose to implicate the accused or to make statements against the accused. Appellant having committed murder of three human lives was not entitled to acquittal, accordingly, the learned counsel has prayed for dismissal of the appeal by maintaining the sentences awarded to the appellant.

8. I have scanned the record of the case and considered the arguments of learned counsel. Before dilating upon the other parts of argument of the learned counsel, I would like to discuss the last point first, raised by the learned counsel for the appellant that the prosecution has failed to prove the motive for the commission of the offence.

9. Before proceeding to discuss the latest case-law on the subject, I shall prefer to note the definition of "motive". According to Black Laws Dictionary (6th Edition), the motive has been defined "an idea, belief or emotion that impels or incites one to act in accordance with his state of mind or emotion." "It is the inducement which impels or leads the mind to indulge in a criminal act." "Motive" is said to be the moving course, the impulse, the desire that induces criminal action on the part of accused." To say it in my words, "motive" can be defined as the energetic source of the mind which provides propelling force and gives an impetus to perform an action or to do an act. To elaborate it further these emotions are, in other words found concealed in the thoughts and mind of an accused, which remains secret and concealed till their exposure through spoken words or actions and these can be adjudged from the events occurred or to have taken place or going to happen at a relevant given time. To be more specific on this subject, it is the cause, manner and method of thoughts in the mind of a person for performing an action, which is hidden in his mind. Therefore, the motive is primarily known to the accused and not to the complainant or to an informant or any other witness of the occurrence unless it is impliedly or explicitly expressed. The aforesaid person, in fact, can explain and convey the action which are performed by him in the commission of an offence. In fact, the others express their conclusions drawn from the happenings and events occurring or narrations supplied to them at the relevant moment, incidents or occurrences, which can be considered the causes and reasons for the commission of an offence by an accused. The actuality which is the real cause or force for the commission of an offence is truly known to an accused. The others actually adjudge it and give out the name to the cause or reasons to the doing of an act or series of acts of an accused person from the happenings or reproduce the spoken words, if those became known to them from the accused or any other one. Seen from this angle, in fact, the real motive is known to the accused and not to the other person, who ornaments those actions by their own opinions or from hearings. Therefore, the old rule of failure of prosecution to prove the motive, took the change through the judgments of the superior courts with the passage of time. Now-a-days, lack, absence, inadequacy, weakness, or the motive, if any, set up by the prosecution and failure to prove it or the motive is shrouded in mystery, are not the grounds to withhold penalty of death or to order the sentence of life imprisonment, if the prosecution has succeeded to prove its case beyond any doubt or suspicion with regard to the commission of the offence. The following judgments upon this subject from this apex Court are of worth considerations: "Nawaz Ali and another v. The State 2001 SCMR 726; Muhammad Ashraf v. The State 2001 SCMR 73; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Mukhtar Ahmad and others v. The State PLD 2004 SC 563; Muhammad Akbar and another v. The State PLD 2004 SC 44; Khurram Malik and others v. The State and others PLD 2006 SC 354 and Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453."

10. I have also noted that no case of motive was set up by the prosecution in the F.I.R. as no person was nominated as an accused in the F.T.R. Appellant was not involved for the commission of murder of the two ladies and the baby in the F.I.R. In fact, the clue of motive was given out by accused himself for the commission of this heinous crime of murder of three human beings, when he had confessed his guilt before P.W.3 Zafar-ul-Islam, and Amir Muhammad Khan P.W.4, therefore, the prosecution cannot be allowed to suffer for that.

11. As far the contention of the learned counsel that upon circumstantial evidence, one cannot be convicted and awarded the penalty of death, this plea is also misconceived because there is no bar or hindrance to pass the sentence upon a killer of three human beings when the chain of guilt is found not to be broken and irresistible conclusion of the guilt is surfacing from the evidence, which is connecting the accused with the commission of that offence without any doubt or suspicion. If the circumstantial evidence brought on the record is of such nature than the conclusion would be in the shape of conviction and no other conclusion shall be drawn by any stretch of imagination in such a case, for the guilt of the accused, penalty of death or life imprisonment shall be a normal event. The following judgments can be cited with benefits for this proposition:-- Khuda Bukhsh v. The State 2004 SCMR 331; Faisal v. The State 2007 SCMR 58; Sheraz Tufail v. The State 2007 SCMR 518; Israr Ali v. The State 2007 SCMR 525; Binyamin alias Khari and others v. The State 2007 SCMR 78; Ghulam Nabi v. The State 2007 SCMR 808 and Muhammad Akhtar v. The State 2007 SCMR 876.

12. As to whether the instant case is of such a kind where the circumstantial evidence is of such nature that appellant can be awarded penalty of death, the following material/evidence leads to these conclusions: (i) Informant had not nominated the appellant in the F.I.R. for the commission of the offence. This fact itself shows that the informant had no ill-will or malice to implicate the accused in the commission of this offence, otherwise he could have easily ascribed the role of at least suspicion of the commission of offence to the appellant in the F.I.R. at the very inception. (ii) There is last seen evidence of P.W.2, Iftikhar Hussain, who had noted the appellant locking the outer door of the house of Mst. Begum Noor on 3-4-1999, after the incident had taken place. Amazingly, this statement of P.W.2, Iftikhar Hussain was not cross-examined although opportunity was given to the accused. The legal consequence of having not cross-examined this material fact is commonly known to all and sundry that the material facts of that piece of evidence is admitted correct. (iii) The appellant had himself disclosed the commission of the offence to P.W.3, Zafar-ul-Islam, Member, District Council, Chakwal and Amir Muhammad Khan P.W.4, Lambardar of Village Farid Kasar. Both these witnesses were also cross-examined and it was not brought on the record that these witnesses were hostile towards tiie accused. Amir Muhammad Khan (P.W.4) was of 68 years of age and had no reasons to involve the appellant in such a grave commission of offence. Their evidence has been found consistent and the accused has not been able to shake their credence, therefore, the extra-judicial confession made before these persons, from whom the appellant considered to be valuable persons for his assistance could not be disbelieved, when they had deposed it on oath before the Court. In fact, this disclosure of offence from the mouth of appellant had led to other corroborative and cogent evidence proving the commission of offence by the accused, which are as under: (a) It was the appellant who had disclosed that he had administered fruit chat consisting of tranquillizer to the deceased ladies. The fruit chat was recovered at his pointation and sent to the Chemical Examiner from where opinion was in affirmation. This fact of administering intoxicated fruit chat to the deceased ladies was further strengthened when the body of these ladies were exhumed and from their stomach, the tranquillizer contents were discovered by the expert. Both these informations were conforming to exclusiveness kind of information, which was disclosed by the accused himself, otherwise these could and were not known to the prosecution before its disclosures. (b) Appellant had led to the recovery of blood-stained churry (P-15) from a place, which was exclusively in his knowledge i.e. den of hens (Darba). This blood-stained churry was also got examined from the expert who had found upon it the human blood. This natured evidence was disclosing exclusive and specific knowledge of the accused which was also an incriminating piece of evidence. (c) Appellant had got himself recovered the blood-stained Shalwar from his house, which was situated in village Rawalzar. This was also another corroborative piece of evidence. This blood stained Shalwar was also examined by the Chemical Examiner, who had reported to have found human blood on it. (d) four gold-bangles, which were worn by Mst. Samina Sajid at the time of her murder, were taken away by the appellant and sold to Muhammad Hafeez, a Goldsmith at Taxila. It is important to note that main Bazar Taxila is a far away city from the place of occurrence, which is the city of Chakwal. Muhammad Hafiz had got no enmity against the accused so as to involve falsely the appellant in the case. Muhammad Hafees had appeared as (P.W.14) and had identified the appellant, the person who had sold those gold-bangles. It is worth-mentioning at this juncture, that the presence of the appellant at Taxila was also explained on the record when we found that sister of appellant was married there in the city of Taxila. (e) When the accused was arrested on 27-4-1999 a receipt (P-6) dated 23-4-1999 issued by al-Hafeez Jeweller of Taxila for the sale of bangles was recovered from the personal search of the accused, which was thereafter verified by (P.W.14) Muhammad Hafeez Goldsmith owner of Al-Hafeez Jewellers of Taxila.

13. All the above noted segments of evidence have led to one important conclusion that it was the act of appellant-accused, who had committed heinous crime of murder of innocent baby and ladies. It was a tyrannous and callous actions of accused who had not only cut the throats of two hapless ladies but also a four months baby. Therefore, the events and the circumstantial evidence had proved that the appellant is the person who had committed this cold-hearted offence of murder. to deprive a soul from his berth is the most sinful act; to take the life of a human being is the most reprehensible, satanic act; as the death of one human is the death of whole of the Humanity; life of human being is a precious gift of Almighty Allah. The Creator of Universe; no one can be allowed to snatch it away through his vicious act.

14. Accordingly, we have found no merit in the appeal of the appellant and dismiss the same. M.B./M-26/S Appeal dismissed.