P L D 2012 Balochistan 22 (PLP)

MUHAMMAD HASHIM KHAN KAKAR, J.

The Special Judge, Anti Terrorism Court, Sibi Naseerabad Division Sibi at Dera Murad Jamali, vide judgement dated 22-1-2007 has convicted and sentenced appellant Gul Muhammad under section 302(b) of the P.P.C. read with section 7(a) of the Anti Terrorism Act, 1997 to death (three count) as ta'zir with direction to pay compensation of Rs.100,000/- to the legal heirs of each deceased as provided under section 544-A of the Cr.P.C., in default whereof to further undergo R.I. for six months. The appellant preferred Criminal Appeal No.(S)06 of 2007 for his acquittal, while the Special Judge has sent Murder Reference No.(S)01 of 2007 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.

2. Complainant Alan son of Ghulam Muhammad, in his report dated 11-3-2004, alleged that about 4/5 months back, Gul Muhammad, who happens to be the husband of his daughter, namely, Momil, made allegation of siyahkari upon his wife and intended to commit her murder, therefore, he did not hand over the custody of his daughter to him. Last night at about 3-00 a.m., his son Imdad Ali was sleeping along with him (complainant), when Gul Muhammad called him, at which his son Imdad Ali accompanied him to his house. After about 2/3 minutes, on hearing fire reports, when the complainant came out of the house, he saw that accused Gul Muhammad made firing upon his son Imdad Ali and murdered him. The complainant further alleged that, thereafter, the accused, hurriedly, went to the house of his aunt, where he committed the murder of Mst. Manzooran daughter of Muhammad Hassan and his brothbr Bashir Ahmed, aged about 6/7 years, by means of firing. The complainant also alleged that since he, along with Amanullah and Muhammad Ramzan, was empty handed, therefore, the accused ran away from the crime scene. The motive behind the incident was alleged to be the refusal of complainant to hand over the custody of Mst. Momil to the accused. Consequently, a case vide. Crime No.34 of 2004, under section 302 of the P.P.C., was registered at Police Station, Usta Muhammad.

3. After registration of the F.I.R., the investigation of the case was entrusted to P.W.8 Sher Nawaz, Si, who visited the place of occurrence situated at Goth Rasool Bakhsh, prepared site sketch Exh.P/8-A on the pointation of the complainant and also prepared site inspection memo Exh.P/2-A, collected six empties of TT pistol vide memo Exh.P/2-F, secured blood-stained earth etc. of the deceased persons vide memos Exh.P/2-B, Exh.P/2-C and Exh.P/2-D, sent the dead bodies of the deceased to Civil Hospital .for postmortem examination and report, prepared inquest reports Exh.P/8-B, Exh. P/8-C and Exh.P/8- D. Thereafter, he went to Civil Hospital, where after postmortem examination, the dead bodies were released to the heirs. On 12-3-2004, he went to Goth Rasool Bakhsh, where the blood-stained clothes of the deceased persons were handed over to him, which were taken into possession vide memos Exh.P/2-F to Exh.P/2-H and he recorded the statements of P.Ws. On 13-3-2004, he arrested accused Gul Muhammad,. from whose possession a TT pistol, along with two live cartridges, was recovered, which was seized vide memo Exh.P/4-B. The accused also made disclosure, at which disclosure memo Exh.P/4-A was prepared. On receiving FSL report Exh.P/8-E, he prepared incomplete challan Exh. P/8-F He also received report of firearm expert Exh. P/8-K and prepared ehallans Exh.P/8-G, Exh. P/8-H and Exh.P/8-I

4. On the stated allegation, a formal charge was framed and read over to the appellant, to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced eight witnesses. P. W.1 Dr. Shah Bakhsh, Medical Officer, conducted postmortem examination of deceased Imdad Ali and Shabir Ahmed and issued postmortem examination reports Exh.P/1-A and Exh.P/1-B. PW-2 Deedar Hussain, constable, is witness to the site inspection memo Exh.P/2-A, securing of blood-stained ariicles vide memos Exh.P/2-B, Exh.P/2-C, Exh.P/2-D, collection of 7 empties vide memo Exh.P/2-E and recovery witness of blood-stained clothes of deceased persons vide memos Exh.P/2-F, Exh.P/2-G and Exh.P/2-H. P.W.3 Alan is complainant of the case, who produced F.I.R. Exh.P/3-A and receipt Exh.P/3-B regarding receiving of the dead body of deceased Imdad Ali. P.W.4 Muhammad Hanif, constable, is witness to the alleged disclosure of the accused and recovery of a TT pistol 30 bore on his pointation from his house. He produced disclosure memo Exh.P/4-A and recovery memo Exh.P/4-B of the recovered TT pistol. P.W.5 Amanullah is an eyewitness of the occurrence, however, he resiled from his statement and was declared hostile. P.W.6 Muhammad Ramzan is also an eyewitness of the occurrence. P.W.7 Dr. Kaneez Sakina, Medical Officer, examined the dead body of deceased Manzooran and issued postmortem examination report Exh.P/7-A and P.W.8 Sher Nawaz; S.I., is the investigating officer, of the case. Then the prosecution closed its side.

5. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of fact levelled against him by the prosecution and professed his innocence. However, he neither made any statement on oath under section 340(2) of the Cr.P.C, nor produced any witness in his defence.

6. At the conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced, as mentioned and detailed above.

7. Mr. Farzand Ali Mengl, learned counsel for the appellant, contended that the conviction of, the appellant is coram non judirce, as the Anti Terrorism Act, 1997 would be attracted only when act or threat to commit an act had nexus to Sections 6, 7 and 8 of the Anti Terrorism Act, 1997 and consequences of the act or threat to commit an act, falling within the ambit of section 6 of the Anti Terrorism Act, 1997, were striking a terror and creating a sense of fear and insecurity among the people, ordinary crimes and physical harm to the victim would not fall within the ambit of Anti Terrorism Act, 1997, for taking cognizance of an offence, the court had to see psychological impact of violence, which was always considered decisive factor. Thus, he prayed for setting aside the impugned judgment and remanding the case to the ordinary Court for retrial. He next contended that rival parties have compounded the offence and have forgiven each other in the name of Almighty Allah. He further stated that in this behalf compromise had been effected, which was submitted before the trial Court. It has been further argued that according, to the provision of section 345 of the Cr.P.C. and of Schedule attached therewith, offence under section 302 of the P.P.C. is compoundable by the legal heirs of. the deceased and under sections 324 to 340 of the P.P.C. by the victim. Likewise, in section 338-F of the P.P.C. and procedure laid down in Chapter XVI of the Cr.P.C., Sections 299 to 338-H of the PPC introduced by Second Amendment Act (II of 1997), wherein the pardon to the accused by way of "Uffuf" (/ ) towaive the right of "Qisas" and "Diyat", are the Islamic provisions of law and to compound the offence under sections 309 and 310 of the P.P.C. is only the right of the complainant or the legal heirs of the deceased by waiving the right of "Qisas" and "Diyat", as such, the conviction of the appellant, in spite of effecting compromise between the parties, is unwarranted and illegal. In the alternative, the learned counsel for the appellant has contended that the appellant does not deserve capital sentence, as according to the prosecution's own showing, the occurrence is the result of siyahkari.

8. Conversely, the appeal has been opposed by Mr. Anwar-ul-Haq Chaudhry, Advocate, appearing on behalf of the Prosecutor General, Balochistan, by arguing that the offence committed by the appellant is not compoundable, being Schedule offence, and the same clearly falls within the ambit of Anti Terrorism Act, 1997. Thus, the appellant has rightly been convicted and sentenced by the trial Court by means of impugned judgment, which does not warrant interference of this Court.

9. We have given due consideration to the contentions raised at the bar and have examined the record with the valuable assistance of the learned counsel for the parties. Dr. Shah Bakhsh and Dr. Kaneez, who had conducted the autopsy on the dead bodies of deceased Mst. Manzooran, Imdad Ali and Bashir Ahmed came forward as P.W.1 and P.W.7 respectively and furnished the detail of injuries observed by them on the corpses of deceased persons. In their opinion, all the injuries were ante-mortem in nature and homicidal in character caused by firearm.

11. After hearing the learned counsel for the parties, we have arrived at a confident conclusion that the prosecution had proved its case against the appellant beyond the shadow of doubt. The connection of the appellant is sought to be established with the crime, in question by the evidence of P.W.3, complainant, Allan and P.W.6 Muhammad Ramzan. Admittedly, both the witnesses are closely related to each other as well as to the deceased persons, but relationship by itself is not sufficient tc brush aside their evidence. They have fully supported the prosecutior version. The defence failed to create any dent in their veracity. They arc resident of the same village and their presence at the time and place ol occurrence cannot be doubted by any degree of seriousness. The appellant and said prosecution witnesses are related and known to eacF other and it is a case of sole accused, as such, neither any question ol mistaken identification, nor substitution arise at all. Their evidence is not suffering from any material contradiction or discrepancy and consisten with the probabilities materially fitting in with other evidence, more particularly the medical evidence and supported by the recovery of crime weapon from possession of the appellant and positive report of firearm expert. We are conscious of the fact that P.W.3, complainant, Allan was declared hostile by the prosecution up to the extent of not identifying the accused before the Court, but it is of no significance in the peculiar circumstances of the case, as the parties entered in compromise, which was also submitted before the trial Court. The incident took place on 11-3-2004 at about 3-00,a.m. and F.I.R. was lodged at 9-00 a.m. on the same date, while the distance of police station from the place of incident is about 12/13 kilometers. It is a case of sole accused, viz, appellant Gul Muhammad, who has been nominated in the promptly lodged F.I.R. It is not believable that complainant would involve the appellant falsely and would allow the real culprits to go scot-free.

12. The positive report of firearm's expert further corroborates the ocular evidence, furnished by P.W.3 and P.W.6. The learned counsel objected on the admissibility of the said report on the ground that it was without any reasoning. It may be seen that the report was brought on record without any objection and if the appellant was not satisfied, he could have called the expert to stand the test of cross-examination as envisaged under the proviso to section 510 of the Cr.P.C. Thus, we are of the considered view that the prosecution has succeeded to prove its case against appellant Gul Muhammad beyond the shadow of doubt.

13. Now in order to determine the question of jurisdiction, for facility of reference, it would be advantageous to reproduce sub-section (g) of subsection (ii) of section 6 of the Anti Terrorism Act, 1997, which speaks as under: "Involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, Government officials and institutions, including Law Enforcement Agencies beyond the purview of the law of the land. " A plain reading of above provision of law leaves no room for any doubt that any offence, where the offender takes the law in his own hands and awards punishment, the offence falls within the purview of Anti Terrorism Act, 1997. We are of the view that venue of commission of a crime, the time of occurrence, the motive and the fact whether or not the said crime had been witnesses by public at large are not the only determining factors for deciding the issue whether a case did or did not fall within the parameters of the Anti Terrorism Act, 1997. The crucial question would be whether the said crime had or had not the effect of striking terror or creating a sense of fear and insecurity in the people or any section of the people. The appellant has committed the murder of three innocent people on the fake allegation of siyahkari, while taking the law in his own hands, which certainly would have created a sense of fear, panic and terror amongst the villagers.

14. We have noticed in a number of cases, specially committed in Naseerabad Division, that the killing of innocent wife, sister and other female relatives, on the allegation of siyahkari, has become a routine practice, rather a fashion, and it is high time we discouraged such unwarranted and shocking practice resulting in double murder in the name of so-called 'honour killing'. We are not impressed by the contention of the learned counsel for the appellant that according to the prosecution's own showing, the occurrence is the result of 'siyahkari, as such; the appellant is liable to be awarded lesser punishment under Section 302(c) of the PPC. It is true that, in the rural areas of Balochistan and especially in Naseerabad division, the people do not swallow such kind of insult, touching the honour of their womenfolk and usually commit murder of alleged siyahkar in order to vindicate and rehabilitate the family honour, but it is equally true that no license can be granted to anyone to take the law of the land in his hands and start executing the culprits himself instead of taking them to the Courts of law. The murder based on Ghairat does not furnish a valid mitigating circumstance for awarding a lesser sentence. The killing of innocent people, specially the women on the pretext of siyahkari is absolutely un-Islamic, illegal and unconstitutional. It is worth mentioning that the believers of Islam are not even allowed to divorce them, without establishing their accusation. We profess our love for Islam, but ignore clear Qur'anic injunctions regarding the rights of women. The Holy Qur'an in Sura XXIV (NUUR) Verses 4 says: "And those who launch A charge against chaste women And produce not four witnesses, (To support their allegation),

Flog them with eight stripes; And reject their evidence Ever after: for such men Are wicked transgressors;

" In this regard, it would also be advantageous to reproduce Hadith 837 Book 48 (Sahih Bukhari), which speaks as under:-- "Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of committing illegal sexual intercourse with Sharik bin Sahma. ' The Prophet 'said, "Produce a proof, or else you would get the legal punishment (by being lashed) on your back. " Hilal said, "0 Allah's Apostle! If anyone of us saw another man over his wife, would he go to search fora proof. " The Prophet went on saying, "Produce a proof or else you would get the legal punishment (by being lashed) on your back." The Prophet then mentioned the narration of Lian (as in the Holy Book). (Surat-al-Nur: 24) The crime of siyahkari is increasing in this part of the Province and innocent girls are being killed under the worst tradition of siyahkari or karokari. False and frivolous allegations are levelled against the innocent girls and they are never heard. They are being treated as cattle, which is also violation of the fundamental rights, enshrined in the Constitution. In order to prevent such crimes, Courts of law should take judicial notice, while trying such heinous crimes. Our view got support from the judgment of Hon'ble Supreme Court of Pakistan-reported in PLD 2001 SC.96, which is as under: "Legally and morally speaking, no body has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat ". Neither the law of the land nor religion permits so-called. honour killing which amounts to murder (Qatl-I-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution." In view of section 6(2)(g) substitution by Ordinance XXI of 2009, re-enacted Ordinance 1 of 2010 dated 1-2-2010 as well as above discussion, we are of the view that in case of an unjustified murder by a person,, who, on account of his immorality or to satisfy his brutal instinct, takes the law in his own hands, is responsible for creating sensation and panic in the Society, thus, the offences committed on the pretext of siyahkari after 1-2-2010 squarely fall within the domain of Anti Terrorism Act, 1997 and all the cases pending before the ordinary Courts stand transfer to the Anti Terrorism Courts.

15. Similarly, the contention of the learned counsel for the appellant regarding compromise of offence between the parties is also devoid of force, for the reason that the Anti Terrorism Act, 1997 was enacted for prevention of terrorism, sectarian violence and for speedy trial of heinous offences. As it is special law, we find that the private complainant or the legal heirs have no right to compound the 'Scheduled Offence', as those offences are mainly against the State and not only against individuals. Moreover, the offences cannot be compounded automatically by the legal heirs, but it is always through the Court and the Court can decline the permission to compromise the offence by the legal heirs of victim. Needless to mention here that even the ordinary Courts, under Section 311 of the P.P.C., can punish the accused if the offence has been compounded by the legal heirs, on the basis of 'Fasad-Fil-Arz'. For what has been discussed above, we are of the considered view that not providing the right to compromise the offence by the legal heirs of deceased is neither violation of Islamic injunctions nor any fundamental rights. Thus, the appeal, being devoid of any force, is dismissed and murder reference is answered in affirmative. H.B.T.1138/Q Appeal dismisse