2015 PLP 423 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Appellants along with six others were tried in the case registered vide F.I.R. No. 94/2002 dated 15-4-2002 under sections 302/324/452/148/149, P.P.C. read with section 7(a) and 7(e) of the Anti-Terrorism Act, 1997 and under section 13 of the Arms Ordinance at Police Station Sadar Narowal for committing heinous murder of six persons. The learned trial Court/Anti-Terrorism Court vide its judgment dated 19-2-2003 convicted the accused under section 7(a) of the A.T.A. read with section 302(b), P.P.C. each and sentenced them to death each on six counts and to pay a sum of Rs.200,000 each to the legal heirs of the deceased each. They were also convicted under section 7(c) of the A.T.A. read with section 324, P.P.C. each and were sentenced to imprisonment for life each and to pay a fine of Rs.10,000 each or in default whereof to further undergo SI for three months each. They were also convicted on two counts under section 452, P.P.C. and were sentenced to RI for seven years each on each count and to pay a fine of Rs.10,000 each on each count or in default whereof to further undergo SI for three months each on each count. Nasir Mehmood and Tahir Iqbal alias Tahira appellants along with co-accused Shaukat Ali and Asghar Ali were also convicted under section 13 of the Pakistan Arms Ordinance, 1965 each and were sentenced to RI for three years each on the said count. All the sentences were directed to be run concurrently with benefit of section 382-B, Cr.P.C. Three co-accused namely Qaisar Mahmood, Asif Mahmood @ Kala and Muhammad Asghar had been declared proclaimed offenders and the case against them had been separated by the learned trial Court. However, the learned High Court while acquitting the other co-accused, maintained the convictions and sentences of the appellants recorded by the learned trial Court.

2. The prosecution story briefly stated is that on the fateful date and time the complainant was present in his house along with his brothers namely Arif Ali, Abbas Ali, Irshad Ahmed and Shafqat Ali and other family members when suddenly the accused entered his house while armed with firearms and asked the complainant to produce their supporter namely Javed alias Jaida so that he could be done to death. The complainant told them that they had no concern with the said Javed, upon which the accused started firing at the complainant party which resulted in the death of complainant's brothers namely Arif Ali and Abbas Ali at the spot. The complainant and others saved their lives by running away from the spot. The accused then left the complainant's house and had entered the nearby house of Munawar Ali and started firing in the said house which resulted in the death of Munawar Ali, Tassawar Ali, Mst. Amina Bibi and Raza Abbas and receiving injuries by Mst. Rukhsana Munawar. A number of residents of the locality were attracted to the place of occurrence whereafter the accused decamped from the spot. It has been mentioned in the F.I.R. that the entire incident has been witnessed by the complainant, Irshad Ahmed, Shafqat Ali, Anwar Ali and Muhammad Akram. The prosecution in support of the case produced as many as 16 witnesses. The appellants when examined under section 342, Cr.P.C. admitted their presence and participation in the occurrence and that they had killed all the deceased and caused injuries to Mst. Rukhsana Munawar.

3. We have heard learned counsel for the appellants and learned Additional Prosecutor General at some length and have gone through the evidence on record.

4. The appellants in their statements under section 342, Cr.P.C. had admitted that they had received information that one Javed @ Jaida was available in the house of complainant at that time; that they had found him and actually they had fired at him but he escaped to the house of Munawar Ali; that they chased the said Jaida and had fired at him but he still managed to escape and that during the process six persons died. This story also finds support from the statement of Dr. Shahida Tariq P.W.1, Dr. Muhammad Younis P.W.2 and Dr. Saadat P.W.3 according to whom the injuries sustained by all the deceased and the injured were caused by two weapons. The crime empties recovered from the spot had also matched with the firearms recovered from the possession of the appellant and not with any other weapon recovered from the other accused. Mst. Rukhsana Munawar P.W.14, the injured who is also a natural witness, in her statement under section 161, Cr.P.C. had nominated the appellants and one Asghar Ali son of Eida. According to the prosecution case the said Asghar Ali was armed with .12 bore gun, which was recovered from his possession but no crime empty corresponding to .12 bore gun had been recovered from the spot. The gun recovered from the said Asghar Ali had never matched with any crime empty. The possibility that the said accused might not have caused firing cannot be ruled out. Even if we keep aside the statements made by the appellants under section 342, Cr.P.C, even then after having gone through the evidence, we find that there is sufficient material available to connect the appellants with the commission of crime. In Azhar Iqbal v. State (2013 SCMR 383) this Court has specifically held that statement of an accused recorded under section 342, Cr.P.C. has to be accepted or rejected in its entirety and where prosecution's evidence was found to be reliable and the exculpatory part of such statement was established to be false and excluded from consideration, then the inculpatory part of such statement might be read in support of prosecution's evidence. In Muhammad Azam v. The State (2009 SCMR 1232), Abdul Rehman @ Boota v. The State (2011 SCMR 34), Talat Mehmood v. Muhammad Ilyas (2002 SCMR 1889), Shabbir Ahmed v. The State (PLD 1995 SC 343), Ghulam Qadir v. Esab Khan (1991 SCMR 61) and Ayyaz Ahmed v. Allah Wasaya (2004 SCMR 1808) this Court has held that statement of an accused recorded under section 342, Cr.P.C. has to be read in its entirety and has to be accepted or rejected as a whole. The statements of accused recorded under section 342, Cr.P.C. if believed in entirety also find support from the prosecution evidence. Even otherwise, the statement of an accused recorded under section 342, Cr.P.C. is more reliable than compared to the statement recorded under section 164, Cr.P.C. which is recorded when the accused is in police custody, as before submission of challan under section 173, Cr.P.C. the accused as a precaution gets a chance to record his statement before the Magistrate. In the instant case the appellants were afforded full opportunity to get recorded their statements under section 342, Cr.P.C. without any duress or coercion. Even at trial when the appellants were duly represented no question of duress or coercion arose. The appellants did not deny the occurrence in which six persons lost their lives but have pleaded that the incident had not taken place in the manner narrated by the prosecution. According to them they had actually fired at one Javed @ Jaida but as he escaped, the deceased got the fire shots. In such circumstances, as the appellants had himself admitted the occurrence, the learned courts below have rightly sentenced them to death. Their explanation that they had no intention to kill the deceased does not bring their case for reduction of sentence. The appellants had repeated the fires and even they had rewound the episode in the second house of Munawar Ali.

5. For what has been discussed above, the appellants do not deserve any leniency in the quantum of punishment. The prosecution has proved its case against the appellants-accused beyond any shadow of doubt apart from their statements recorded under section 342, Cr.P.C. The judgment of the learned High Court is unexceptionable. The appeal having no merit is accordingly dismissed. Sd/- Ijaz Ahmad Chaudhry, J Sd/- Qazi Faez Isa, J Please see the attached dissenting judgment. Sd/- Dost Muhammad Khan, J DOST MUHAMMAD KHAN, J.

I have gone through the judgment authored by my lord brother Mr. Justice Ijaz Ahmed Chaudhry and have also carefully examined the entire evidence/facts of the case, the statements of the appellants recorded under section 342, Cr.P.C. and after combined study of the same I am respectfully not in agreement with the view that the appellants' death sentence maintained by the learned Division Bench of the Lahore High Court, Lahore is to be endorsed by this Court without observing any care and caution. Keeping in view the peculiar circumstances of the case there are bundle of doubts apparent on the face of record thus, at least benefit of the same must be given to the appellants with regard to the quantum of sentence if at all their conviction is to be maintained. My reasons for dissenting view are as follows:-- (i) Admittedly, the report was made at the crime spot/house. The F.I.R. lodged in a murder case in this way without plausible reasons is considered a suspicious one by the Superior Courts and in such a case, the entire evidence is to be re-appraised with extra degree of care and caution. (ii) Being a night occurrence, how in the remote village the electric bulb was kept lit at night time. Why the complainant and the other two witnesses were chatting when the rest of the inmates were in sound sleep, being midnight time. (iii) When Jaida, the sole cause of the tragedy was not present there, then why all the accused resorted to indiscriminate firing by enacting such a tragedy. (iv) How the complainant and the two witnesses escaped without getting a scratch of bullet or pellet on their bodies while the sleeping inmates became the victims. (v) When the complainant ran away inside along with the two witnesses, took shelter there, how he knew that the accused had proceeded to the house of Munawar Ali. He was supposed to attend to his dying close blood relatives but contrary to that he showed entirely an unnatural conduct, instead of attending to his own victims, he regained so much courage to chase the accused empty handed upto the house of Munawar Ali where the second incident took place and casualties of equal or more numbers occurred. He has played role of a professional photographer by taking the snapshots of each and every event and did nothing else. Having serious rivalry in the same village and enmity as well, he too must have had firearms in his house but he did not pick up anyone to shoot at the aggressors. (vi) Why Mst. Rukhsana Munawar, who had sustained three bullet injuries, one on her shoulder and two on right thigh crying in pain with excessive bleeding from her wounds, was not quickly moved to the hospital to save her life as she has been shown received in hospital at 3-40 a.m. on 15-4-2004, in the MLR, when the police had already reached there. Vehicles besides the co-villagers were there to provide the required support/help. (vii) The electric bulbs, in the light of which the witnesses identified the culprits, were neither taken into possession nor the same have been indicated in the site plans by the draftsman, which are Exh.PO and Exh.PO/1. (viii) The first postmortem report was conducted at about 10-30 a.m. on the following day and the rest thereafter upto 2 p.m. so there is delay in the same. (ix) The Arms Expert's report is equally a questionable document because some of the empties did not match with the rifle and pistol of the two appellants respectively, while about the rest, being broken/perforated hence, striking marks on it were not identifiable. This infirmity apart, the crime empties were allegedly recovered on the night of occurrence from the two crime spots however, those were kept by the police with it and after recovery of the alleged crime weapons, were jointly sent to the Expert with a delay of about 15 days and on that account too, the same cannot be safely relied upon. (x) After facing long trial and contesting the charge, the appellants tried their best to exonerate themselves from the charge however, it appears that the two appellants were the servants/employees of the acquitted co-accused and thus influenced too much therefore, they turned scapegoats to get a clearance chit from the Court for the acquitted co-accused. In this background the Court of law has to see that what was the compelling reason, which drove the appellants to admit the crime at the fag end of the trial. Whether this statement was given with free will and voluntarily or it was contrived by someone. It is noticeable phenomena that in the trial Courts, ordinarily questions under section 342, Cr.P.C. are prepared and put to the accused by the Prosecutor with the assistance of the complainant counsel and the defence counsel common for all makes the reply. It is evident from the record that the two appellants were not literate and the answer given on their behalf is in English. The learned trial Judge has not attended to this crucial aspect of the case at proper time. As soon as this admission was made, the trial Judge was required to have had administered warning to the appellants that such admission could be used against them and might ensue grave consequences also probing into the factors behind the screen as to whether this admission was made by the appellants with their free will, consent and understanding or it was otherwise. This would show that the trial Judge has acted carelessly in the dispensation of justice and did not fulfil his legal obligation. Again, there is a sky high difference between an admission and confession. It is a consistent view of the Courts that no one shall be condemned and sentenced to death on a capital charge merely if he pleads guilty to the charge but some evidence must be recorded which shall be taken in support of the plea of guilt of the accused. Therefore, in my humble view, such admission of the appellants could not be made sole basis for sentencing them to death. Under the provisions of law of evidence, in the relevant Chapter, admission is defined as a relevant fact and not a proof by itself while on the other hand a confession duly recorded by the Magistrate is a primary evidence against the accused making the same, while it can be used as a corroboratory evidence against co-accused, therefore, we would be failing in our duty to give that much of importance to the admission made by the appellants, which appears to have been made under influence of the acquitted co-accused. More over, the learned Division Bench of the High Court has rejected the evidence of the prosecution in the same manner like here it was disbelieved to the extent of acquitted accused in the main judgment, written by my lord bother, thus the entire fate of the case now based on simple admission.

2. In the case of Gulistan, etc. v. The State (1995 SCMR 1789), it was held that dishonest preparation of F.I.R. by the police once established, then the entire prosecution evidence must be appreciated with a great care and caution. While in the case of Muhammad Hasan v. State (1991 PCr.LJ 2188) it was held that in a murder case when report is lodged at the crime spot, then strong presumption would be that it was lodged after consultation and deliberation.

3. Fleeting looks of culprits in a night occurrence falls in the category of suspect evidence thus, once it is disbelieved qua acquitted accused then very strong corroborating evidence would enable the Court to remove chaff from grains. The leading and binding judgment is in the case of Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11) where it was held that once witnesses are found making false statement with regard to involvement of one of the accused then they loose integrity and their testimony cannot be relied upon with regard to the other co-accused unless it is amply corroborated by independent and unimpeachable evidence. This principle has been followed by this Court till date being of vital importance and based on sound rationale. Thus, when the majority of the accused in this case, have been acquitted then, how the statements of the appellants containing admission could be construed as a strong corroboratory evidence to infuse credibility into their testimony, when they have told lies qua the acquitted co-accused. The most decisive factor is the motive for the crime. The learned Division Bench of the High Court disbelieved the motive set up in the F.I.R. and reiterated at the trial and the one advanced by the two appellants in their statements under section 342, Cr.P.C. has been given preference. The settled principle of law is that when the Court is confronted with a choice to believe the motive set up by the prosecution or the one given by the defence then in such circumstances, Re-benefit of doubt shall go to the accused. This view was held in the cases of Sikandar v. The State (PLD 1963 SC 17) and Rashid Ali Khan v. The State (1992 PCr.LJ 1320). In any case, the true motive for the crime is still a matter of choice and guess work. This fact alone is sufficient to disturb judicial mind to reach at proper conclusion as which one of both parties was telling the truth and who was telling lie. In the absence of true motive and because the appellants have remained in death cell/cage for a longer duration therefore, on this ground too, the appellants deserve lenient treatment in the matter of sentence as on this point our view is now a consistent one.

4. Even if the case is stretched much in favour of the prosecution on the strength of solitary statement of Mst. Rukhsana Munawar, the injured witness, the appellants' conviction can only be maintained to the extent of the second tragedy/incident where Munawar Ali, Tasawar Ali, Mst. Amin Bibi and Raza Abbas were done to death and she got injured while with regard to the first episode the evidence is so cryptic and infirm that neither the complainant nor the other witnesses could be believed and relied upon to record conviction on a capital charge. Therefore, in my view, the appellants are just liable to conviction for causing murder of Munawar Ali, Tasawar Ali, Amin Bibi and Raza Abbas and they are also liable to be convicted under section 324 read with section 337-E(iii), P.P.C., however, the appellants' case is not of the nature in view of the peculiar facts to award them death sentence, thus to firmly secure the ends of justice the death sentence(s) on four counts are reduced to life R.I. on (4) counts in addition to the sentence of 7 years' R.I. under section 324, P.P.C. and "Daman" under section 337-E(iii), P.P.C.

5. Accordingly, the death sentence is reduced to life imprisonment on four counts with the sentence of 7 years' R.I. and one year with compensation of "Daman" beside they shall pay Rs.2,00,000 each to the LRs. of each one of the four deceased or in default thereof to suffer six months' S.I. on each count. However, the substantive sentences of imprisonment on each count and the one awarded under section 324 read with section 337 E(iii) shall run concurrently. They are also held entitled to benefit of section 382-B, Cr.P.C. Order of the Court By majority of 2 to 1, this appeal is dismissed. Sd/- Ijaz Ahmad Chaudhry, J Sd/- Qazi Faez Isa, J Please see the attached dissenting note. Sd/- Dost Muhammad Khan, J MWA/N-3/SC Appeal dismissed.