2019 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The Murder Reference No.06/2016 and the Appeal No.61/2016 pertaining to the FIR No.143/2015 has been brought before us to be mediate and steered towards its judicious determination.

2. The FIR, lays thread bare the prosecution saga as such that on 04-12-2015 while the complainant with rest of the PWD cohort including Muhammad Mustaqeem Line Superintendent Shift In-charge, Shoib-ur-Rehman Helper, Muhammad Iqbal Electrician and Sher Muhammad Foreman were answered the call of duty, at about 12 a.m. Jawahir Khan son of Nadir Khan resident of Muslim Colony, near Sub-Station paid a visit to the station house while addressing Muhammad Mustaqeem the shift in-charge, the convict/appellant demanded the installation of special line in his house, answered in negative by Muhammad Mustaqeem on the score that any such installation requires prior sanction of the PWD high ups, taking it ill the convict/appellant resorted to revilement, while threatening them that they will be done to death, left the station, Muhammad Mustaqeem looking through the imminent jeopardy rang up the SHO and asked for the dispatch of police personnel, at about 12:15 the convict/appellant scaling over the rear boundary wall of sub-station jumped into the substation grabbing pistols in both his hands who opened random firing on the complainant and the rest resultantly Muhammad Mustaqeem got injured and the complainant received a bullet injury on the middle finger of his right hand, in the meanwhile ASI Muhammad Amin accompanied by four police personnel reached the spot and busted the accused red handed, both the pistols were taken into custody there and then by the police, the complainant concluded the application with the prayer that the above narrated act is one of extreme terrorism and the accused should be dealt with accordingly.

3. The learned defence counsel vociferously averred that the judgment of learned trial Court is the outcome of misreading and non-reading of evidence available on record, the nexus of accused with the offence cannot be traced if weighed and considered in terms of consistency and quality of prosecution evidence, the judgment is a paradox to what has been set forth by the prosecution, there exists not an iota of material or substantive evidence against the convict/appellant, the reliance of trial Court on the confessional statement recorded under section 21-H has also been attacked, it has been pleaded that the witnesses are close relatives, besides misapplication and misconception of law has also form, a chunk of defence arguments, mode and manner of effecting recovery has also been discussed with certain reservation, besides it has also been argued that the instant case is one of personal vendetta and the trial Court has wrongly conducted the trial. The learned defence counsel relied on 1972 SCMR 286, 1968 SCMR 1361, 2011 YLR 1014, 2009 PCr.LJ 1226, 2008 PCr.LJ 869, 2012 YLR 1152, 2008 SCMR 06, 2011 YLR 09, 1985 SCMR 685, 2010 YLR 2149, 2010 YLR 2364, 2011 PCr.LJ 1815, 2011 SCMR 1169 and 2010 PCr.LJ 11 in support of his contentions.

4. Prosecution while refuting the defence arguments has stressed that the occurrence is a broad day occurrence, substitution or mistaken identity in the instant case is something out of question, the specific nomination of convict/appellant in unequivocal terms, the savageness and barbarity demonstrated at his part, his red handed arrest, coupled with the immediate recovery of pistols and his voluntarily recorded confessional statement, if considered in the wake of consistent testimony rendered by the prosecution witnesses makes it a ripe case for awarding capital sentence. The learned counsel for the complainant and learned Dy. Advocate General relied on 2010 PCr.LJ 1787 and 2005 PCr.LJ 182, 2005 PCr.LJ 1384, 2002 SCMR 294, 2002 SCMR 391, PLD 1976 SC 53 and 2008 SCMR 796 in support of their contentions. The absence of any mitigation was also pleaded by the prosecution.

5. The ins and outs of the current controversy have been thrashed in the light of scholarly assistance rendered by both the sides, the occurrence has commenced in a broad day light and prosecution has successfully sketched the unfortunate vista of the substation in a consistent and categorical terms, wherein the convict/appellant emerges as a desperate and hard hearted assailant, who unleashed his uncalled for wrath in such a gruesome manner that it took the life of one of the PWD personnel and jeopardized the rest in the same fashion, the scribe of FIR in the present case who rendered the ocular account is an injured witness, the material aspects of whose testimony is further augmented by the account of occurrence rendered by PW-3 Sher Muhammad, PW-4 Muhammad Iqbal, all of them stand in the row of eye-witnesses, the sequence in which the occurrence had taken place has been meticulously brought on record by the said witnesses, even the colour of clothes worn by the assailant have been told by the FIR lodger, PW Sher Muhammad an injured eye-witness lucidity explained the occurrence, visit of the accused to the substation, his demand of installation of special line, Mustaqeem's (deceased) shift in-charge refusal, hurling of threats and abuses by the convict/appellant, his arrival after a few minutes having pistols in both hands indiscriminate firing over the PWs, arrival of police and arrest of convict/appellant with the weapon of offence is a common stance in the testimony of all the eye-witnesses including the injured one, the defence cut a sorry figure in extracting anytime favorable for the convict/appellant rather the series of queries proceeded forth confirming the guilt of the accused, the presence of witnesses on the spot, the opening of fire shots, witnesses receiving injuries and arrival of police has not only been established by the prosecution but by defence as well since the questions posed in cross-examination by the defence has reconfirmed the entire occurrence. PW Muhammad Iqbal is yet another eye-witness whose testimony is also in line with the rest of the eye-witness, during his cross-examination the said PW stated that "Due to fear the people outside the station were running outside and only the police personnel entered into the sub-station". This particular statement portrays the exact picture of what generally happens in such like situation, the PWs who rendered the ocular account being employees of the sub-station Konodas where the unfortunate incident has taken place are the most natural witnesses, the medical evidence rendered by Dr. Ehsanullah ended up with the summation that fatal gunshot injury to vital organs heart and lungs and cardio vascular collapse worked in tandem to make the deceased breath his last.

6. SIP Muhammad Amin (PW-7) who reached the spot while the unbridled barbarity depicted by the accused was in continuum is yet another material witness, who asked the accused to refrain from executing his obnoxious designs, but his clamor fell on deaf ears and the convict/appellant did what he was up to, he arrested the accused on the spot, took both the pistols in custody, the confirmation by SHO Zahoor Ahmed with respect to the call made by deceased Muhammad Mustaqeem and deputation of SIP Muhammad Amin with other police personnel is yet another circumstance which adds to the credibility of the sequence of events which had taken place on the fateful day and is sufficient to discard even a remote suspicious that this set of evidence is either a manipulated one or is carved at leisure by the prosecution, HC Tehzeeb Hassan is an eye-witness as well as the marginal witness to the recovery of pistols, his narration of the facts if juxtaposed with the testimony of SIP Muhammad Amin successfully and explicitly spells out the tit bits of the occurrence, recoveries of two pistols hotly at the spot further lends credence to the ocular account furnished by the witnesses.

7. The confessional statement recorded under section 21-H although seen with skepticism mostly by the Courts, yet it will count in favour of the prosecution being a piece of evidence, the defence instead of hammering in doubts regarding its voluntary-ness, ventured on denying the same flatly, had the defence gone by it, it might have created a little mitigation, a complete denial has robbed the defence of this little opportunity which could have been zeroed in no otherwise by defence itself.

8. It has also been stressed that the instant case being one of personnel vendetta, the Anti-Terrorism Court should have refrained from laying her hands on it, suffice it to say that a writ petition giving tongue to the same contention has also been answered in negative by this Court which order has not been assailed by the convict/appellant meaning thereby that he acquiesced in what has been already opined by this Court, moreover the contours of an act to be described as a "terror act" has been delineated by this Court in judgment titled Zakir Hussain v. The State reported in 2017 PCr.LJ 757, which was awarded by one of us (Justcie Malik Haq Nawaz) and later on the apex Court i.e Supreme Appellate Court directed Registrar of this Court to circulate the same among the subordinate judiciary of Gilgit-Baltistan. The relevant portion is reproduced as a ready reference:- "(g) Anti-Terrorism Act (XXVII of 1997):

S. 6(1)(b)

Act of terrorism

Scope

If after the commission of an act, a wave of terror strikes the society, it is more than sufficient to attract the provision of Anti-Terrorism Act, 1997

Terror or fear was a state of mind which keeps one's mind under the continuous apprehension of being insecure."

9. The defence while answered an inquisitive query of the questionnaire under section 342, Cr.P.C., that why convict/appellant has been implicated in the present case, has made a reference to a case title State v. Wali Khan allegedly registered against the convict/appellant by the deceased and his brothers, no such question has been put to any of the witnesses nor the same has been brought on record in a manner which could have been considered by this Court, even if this particular answer be given a frank consideration, the record lays explicit that the brothers of deceased no where surfaced during the whole transaction, the FIR lodger is colleague of deceased and an injured witness and the rest of the eye-witnesses are also his colleagues, why would they implicate the accused falsely is a question to which defence has noting up in its sleeves.

10. As a sequel of above discussion, it can be epitomized that prosecution has brought home the guilt of accused in most satisfying manner, the convict/appellant let loose a wave of savagery taking the life of Muhammad Mustaqeem who died in harness and making a motivated and determined attempt at the life of rest for a frail motive which in all probabilities was quite incapable of generating such an inhuman reaction, says a loud "No" even to a ting of leniency to make its way in the current judgment, rather such desperate people must meet a deteric end to serve as an eye opener for the rest having like propensities. All the charges against the convict/appellant have unblemish probative force moving this Court to uphold the judgment of Anti-Terrorism Court No.1 dated 22-12-2016 in toto, resultantly the Murder Reference No.06/2016 is answered in "POSITIVE" and the conviction of convict/appellant on all other counts is also maintained. The appeal stands dismissed being meritless. File be consigned to record after its necessary completion. JK/201/GB Appeal dismissed.