2021 PLP 1305 (MLD)

ANWAARUL HAQ PANNUN, J.

The appellant Abdul Rauf alias Kala was tried in a private complaint under Sections 302, 324, 148, 149, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997, arising out of case FIR No.210/2014 dated 14.11.2004, Police Station Wan Bhachran District Mianwali. On conclusion of trial, the learned trial court/Judge, Anti-Terrorism Court, Sargodha, vide its judgment dated 31.10.2018, has convicted and sentenced the appellant as under:- i) Under Section 302(b), P.P.C. death penalty by way of Tazir for committing Qatl-i-Amd of Muhammad Yusuf deceased with a compensation of Rs.2,00,000/- under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I. ii) Under Section 302(b), P.P.C. death penalty by way of Tazir for committing Qatl-i-Amd of Muhammad Khan deceased with a compensation of Rs.2,00,000/- under section 544-A, Cr.P.C to the legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I. iii) Under Section 302(b), P.P.C., death penalty by way of Tazir for committing Qatl-i-Amd of Muhammad Bakhsh deceased with a compensation of Rs.2,00,000/- under Section 544-A, Cr.P.C to the legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I. iv) Under Section 302(b), P.P.C. death penalty by way of Tazir for committing Qatl-i-Amd of Abdul Rehman deceased with a compensation of 16..2,00,000/- under Section 544-A Cr.P.C. to the legal heirs of the deceased and in default of payment of compensation to further undergo six months S.I. v) Under Section 324, P.P.C., ten years R.I. for attempting to commit Qatl-i-Amd of Muhammad Feroze (injured PW) with fine of Rs.1,00,000/- and in default of payment of fine to further undergo four months S.I. vi) Under Section 7(a) of ATA, 1997, death sentence for committing Qatl-i-Amd of four deceased name Muhammad Yusuf Muhammad Khan, Muhammad Bakhsh and Abdul Rehman with fine of Rs. 5,00,000/- and in default of payment of fine to further undergo six months S.I. vii) Under Section 7(c) of ATA, 1997, ten years R.I. for attempting to commit Qatl-i-Amd of Muhammad Feroze (injured PFT9 with fine of Rs. 1,00,000/- and in default of payment of fine to further undergo four months S.I. viii) Under Section 21-L, of ATA, 1997, ten years R.I. with fine of Rs.50,000/- and in default of payment of fine to further undergo two months S.I. The sentences of imprisonment were ordered to run concurrently and benefit of Section 382-B, Cr.P.C has been extended to the convict/appellant. Capital Sentence Reference No.14-T of 2018, for confirmation or otherwise of death sentence awarded to appellant Abdul Rauf alias Kala shall also be replied through this single judgment.

2. Briefly, the prosecution story as mentioned by complainant Muhammad Iqbal (PW-3) in a private complaint (Ex.PB) is that on 14.11.2004 at 6:30 p.m. he along with Muhammad Feroze, Muhammad Khan son of Muhammad Zaman, Muhammad Khan son of Muhammad Ramzan, Abdul Rehman, Muhammad Bakhsh and Muhammad Yousaf was sitting in the Baithak of Fateh Muhammad Chairman when all of a sudden the accused Abdul Rauf alias Kala while armed with Kalashnikov along with two unknown culprits and Ahmad Nawaz and Shaukat, all armed with Kalashnikovs, came there; accused Abdul Rauf alias Kala along with his two unknown accomplices while raising lalkara entered into the Baithak and made a burst with his Kalashnikov and the unknown accused also resorted to burst firing with their respective firearms, which resulted into death of Muhammad Bakhsh, Muhammad Khan son of Muhammad Ramzan, Muhammad Yusuf and Abdul Rehman and injuries to Muhammad Feroze. Motive behind the occurrence was stated to be a criminal litigation pending between the parties.

3. After necessary investigation the report under Section 173, Cr.P.C was submitted against the accused/appellant. After completing the procedural formalities the appellant was formally charge-sheeted by the learned trial court, to which he pleaded not guilty and claimed trial. The prosecution examined as many as eleven PWs and four CWs to prove charge against the accused. Dr. Salahuddin (PW-10) and Dr. Muhammad Ishfaq (PW-12) provided medical evidence; Muhammad Afzal, S.I (Rtd.) (CW-1) and Ziaullah Khan, Inspector (CW-4) conducted investigation in this case, whereas the complainant Muhammad Iqbal (PW-3) and Muhammad Feroze (PW-4) furnished the ocular account. Learned Deputy Prosecutor General after tendering in evidence report of the Chemical Examiner (Ex.PW) and report of the Punjab Forensic Science Agency (Ex.PX) closed the prosecution case.

4. The statement of the accused/appellant under Section 342, Cr.P.C was recorded, in which he refuted the allegations levelled against him and professed his innocence. While answering to question (Why this case is against you and why the witnesses have deposed against you?), the appellant replied as under:- "False case has been registered against me due to previous enmity. Firstly a false case under section 324, P.P.C. was registered against me and others on the allegation of causing firearm injuries to Muhammad Ramzan, chachazad of the complainant of this case. The complainant had involved me in this case falsely due to said grudge. The other private witnesses have deposed falsely due to their relationship with the complainant " The accused/appellant neither produced any defence evidence nor opted to appear as his own witness under Section 340(2), Cr.P.C. However, after conclusion of trial the appellant has been convicted and sentenced by the learned trial court, as mentioned earlier.

5. We have heard the learned counsel for the parties at length, scanned the record with their able assistance besides giving our anxious consideration to their arguments.

6. The occurrence in this case took place on 14.11.2004 at 06:30 p.m. was reported to police by the complainant at 08:00 p.m. i.e. just after one and half hour of the occurrence. The distance between the police station and the place of occurrence was eight kilometers. The dead bodies of all the four deceased were transmitted to the hospital on the same night at 01:15 a.m. and the postmortems were conducted at 01:30 a.m., 02:30 a.m., 03:30 a.m. and 04:30 a.m. respectively. Importantly, the injured/PW-5 Muhammad Feroze was medically examined on 14.11.2004 at 07:30 p.m. Therefore, we are of the view that it is a case in which, the F.I.R has been lodged with possible prompt practically, thus the chances of deliberation and consultation on the part of the complainant are ruled out. The ocular account in this case has been furnished by PW-3 Muhammad Iqbal and PW-4 Muhammad Feroze (close relatives of the deceased). Both the eye-witnesses are residents of the same place where the occurrence took place and they have reasonably explained their presence at the place and time of occurrence. Moreover, the fact that PW-4 also sustained firearm injuries on his right leg and he was taken to the hospital by the complainant within one hour of the occurrence establishes that they both were present at the spot. Even otherwise, PW-3 and PW-4 remained consistent on all material points and evidence of the said witnesses cannot be discarded merely on account of their inter se relationship as well as their relationship with the deceased persons. It is well settled by now that mere relationship of the witnesses is not a ground itself to discredit their testimony. Reliance is placed on the dictum reported as Khizar Hayat v. The State (2011 SCMR 429), wherein the Hon'ble Supreme Court has observed as under:- "The statement of the witness on account of being interested witness can only be discarded if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Essentially this proposition has been considered in number of cases and this Court had declined to give weight to it, in absence of any reason leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances."

7. According to the postmortem reports, doctor has found nine firearm injuries on the body of Abdul Rehman deceased, ten firearm injuries on the body of Muhammad Yusuf deceased, seven firearm injuries on the body of Muhammad Khan deceased and five firearm injuries on the body of Muhammad Bakhsh deceased. The medical evidence furnished by PW-10 Dr. Salahuddin and PW-12 Dr. Muhammad Ishfaq fully corroborates with the ocular account and we do not find any material contradiction qua the role of the appellant. We have also observed that the plea taken on behalf of the appellant that it was an unseen occurrence which was committed in the darkness of night and the appellant had been substituted with the actual culprits, in view of the fact that the parties are known to each other and any mistake in identifying the accused by the PWs cannot arose, is farfetched and thus, rejected. Even otherwise, substitution of accused by the complainant in such like murder case is not possible. The law on the subject has been settled by the Hon'ble Supreme Court of Pakistan in the judgment reported as Khalid Saif Ullah v. The State (2008 SCMR 688) wherein it has been has observed as under:- "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others PLD 1996 SC 138".

8. The motive in this case has not been denied by the accused/appellant and he also did not produce any defence evidence to establish his alleged false involvement in this case. The Investigating Officer/CW-1 in his cross-examination has clarified that inside walls of the room (place of occurrence) were badly damaged because of firing and crime empties were present at the spot. As per report of the Punjab Forensic Science Agency (Ex.PX) the weapon of offence recovered from the appellant was found to be in mechanical operating condition with safety features functioning properly, therefore, in presence of the substantive evidence this corroborative piece of evidence fully establishes culpability of the accused/appellant. However, we have observed that for determining the issue whether the offence falls within the realm of Anti-Terrorism Act or not, the nature of offence is to be seen in the light of mode of occurrence. In this case a specific motive resulting into this occurrence has been alleged, which is private and of personalized nature and has no nexus with Section 6 of Anti-Terrorism Act, 1997, thus it cannot be said that the same falls within the ambit of Anti-Terrorism Act. Thus, in our view, motive for the occurrence in this case is personal enmity inter-se the parties as such Section 7 of Anti-Terrorism Act, 1997 does not attract. In this context, reliance is placed on the judgment reported as Muhammad Bilal v. The State and others (2019 SCMR 1362). Therefore, the appellant's convictions and sentences under Sections 7(a), 7(c) and 21-L of Anti-Terrorism Act, 1997 are set aside.

9. In the light of all above, we are of the considered view that the appellant has acted in a callous and brutal manner and committed cold blooded murder of the four innocent persons and also caused serious firearm injuries to the injured PW, hence he deserves no leniency. No mitigating circumstance has occurred in this case and the learned trial court, after considering all pros and cons of the matter, has rightly convicted and sentenced the appellant under Sections 302(b) and 324, P.P.C., therefore, the same being based upon well-settled principles of appreciation of evidence is upheld. Resultantly, this appeal (Criminal Appeal No.258868-J of 2018) being devoid of any force is hereby dismissed. Accordingly, death sentence of convict Abdul Rauf alias Kala is confirmed and Capital Sentence Reference No.14-T of 2018 is answered in the affirmative. JK/A-21/L Appeal dismissed.