P L D 2007 Lahore 618 (PLP)

TARIQ SHAMIM, J.--The appellant Muhammad Sarwar was tried in case F.I.R. No.136 dated 20-2-2007, for offences under section 302, P.P.C. read, with sections 6/7 of the Anti-Terrorism Act, 19)7 and section 13 of Pakistan Arms Ordinance, (No.XX) of 1965 registered with Police Station Civil Lines, Gujranwala, by the learned Judge Anti-Terrorism Court-II, Gujranwala, who vide his judgment dated 20-3-2007 convicted the appellant under section 302(b), P.P.C. and sentenced him to death along with payment of Rs.1,00,000 as compensation to be paid to the legal heirs of the deceased or in default to undergo six months' S.I. He was also convicted under section 7(a) of the Anti-Terrorism Act, 1997, and was sentenced to death along with fine of Rs. 1,00,000 or in default six months' S.I. He was further convicted under section 13 of the Arms Ordinance (No.XX) of 1965 and was sentenced to suffer two years' R.I. and fine o1' Rs.10,000 or in default to further undergo one months' S.I.

2. Through this appeal, the appellant has challenged his aforesaid conviction and sentence awarded by the learned trial Court while the learned trial court has also sent capital sentence reference for confirmation of death. Both these matters are being decided together through this single judgment.

3. Brief facts of the case as narrated by the complainant Muhammad Ali Bajwa (P.W.1) in F.I.R. Exh.PA/3 are that on 20-2-207 his sister Mst. Zil-e-Humma Usman, Provincial Minister, Social Welfare, Punjab on her official vehicle driven by Arif Hussian P.W.2 along with Muhammad Shabbir Baig Personal Staff Officer, (given up P.W.) and Muhammad Asim Javed (P.W.3) reached Muslim League House, 'Asghar Ali Road, near Police Station Civil Lines, Gujranwala at 12-15 noon where a lot of persons including females were present for her reception. When the deceased entered the Muslim League House, a person who had covered himself with a chador emerged from the Mob and started walking on her left side and after proceeding about 8/10 steps he fired at the head of the deceased with a .30 bore pistol who fell down smeared with blood. Muhammad Shabbir Baig, P.W, tried to pick up Zil-e-Humma Usman, Arif Hussain Driver (P.W.2) caught hold of the accused with the pistol and handed him over to the police. Muhammad Shabbir Baig and Asim Javed P.Ws. immediately took Zil-e-Humma to Civil Hospital, Gujranwala. Later on, she was referred to Lahore where she died in General Hospital. The appellant was apprehended at the spot who disclosed his name as Muhammad Sarwar.

4. On receipt of complaint Exh.PA signed by the complainant, Muhammad Nazeer A.S.I. (P.W.S) recorded F.I.R. No.136/07 (Exh.PA/3). After investigation report under section 173 was submitted and charge under section 7(a) of the Anti-Terrorism Act, 1997, section. 302, P.P.C. and section 13 of the Pakistan Arms Ordinance (No.XX) of 1965 was framed. The appellant pleaded not guilty and claimed himself to be innocent.

5. The prosecution produced as many as 15 witnesses. Amongst the prosecution witnesses Muhammad Ali Bajwa appeared as P.W.1, he supported the story narrated in the F.I.R. Arif Hussin appeared as P.W.2, Asim Javed as P.W.3 and Muhammad Ilyas, A.S.I. as P.W.4 who furnished the ocular account and supported the prosecution case. Muhammad Nazir, A.S.I. (P.W.S) formulated the F.I.R. Exh.PA/3. Munir 1344/C, P.W.6 deposited the parcel of blood-stained earth in the office of Chemical Examiner and the parcels containing pistol and crime empty in the office of Forensic Science Laboratory which he had received from Muhammad Munir Head Constable No.1991. P.W.7 Dr. Sohaila Nudrat Zaidi, Senior Demonstrator, Forensic Department, King Edward Medical University, Lahore, P.W.8 on 20-2-2007 conducted postmortem examination on the dead body of Zile-e-Humma Usman, deceased at 4-00 p.m. in Mayo Hospital Lahore and found the following injuries:-- (1) A stitched wound 1 c.m. with two intact black stitches on the left temple region, 2.2 c.m' above the left ear, 8 c.m. from the outer canthus of left eye. (2) 2 c.m. long stitched wound in the right side from front temporal region., 8 c.m. above the right ear, 7 c.m. from the midline, 8 c.m. from the outer canthus with five black stiches. (3) On the left wrist joint bluish area. 1 c.m. x 2 c.m. with a reddish point in the center. (4) A bluish area on the upper surface of right foot 10 x 6 c.m. in the middle. (5) 4 circular impression marks 3 x 1 c.m. at a distance of 5 c.m. from each other just below the left breast. According to her opinion injuries Nos. 1 and 2 were ante-mortem in nature and were caused by firearm weapon and leading to injury to skull and brain tissue, resulting in hemorrhage, coma and death. She prepared postmortem examination report Exh.PE and diagrams Exh.PE/1 Dr. Shamoona W.M.O. DHQ Hospital, Gujranwala appeared as P. W.9 and she stated that: on 20-2-2007 at 12.20 p.m. Zila-e-Humma was brought to the hospital in injured condition and she was examined by her. She recorded the following injuries on her body:-- "Firearm lacerated wound of entry 3.4 c.m. x 1.5 c.m. with inverted margins; blackening was present, going deep on left temporal region, 2 c.m. above the left ear, 8 c.m. from the outer canthus of left eye .with corresponding wound of exit 2 c.m. x. 1.5 c.m. with everted margins and brain matter was coming out in the right from temporal region, 8 c.m. above the Fright car, 4 c.m. from the midline, 8 c.m. from outer canthus of right eye.'' According to her, the injuries were caused with fire-arm and she prepared Medico-legal Report No.153 of 2007, Exh.PF. Dr. Muhammad Anwar, Neuro Surgeon, General Hospital Lahore appeared as P.W.13 and stated that on 20-2-2007 Zila-e-Humma was admitted in the hospital at 2-10 p.m. due to fire-arm injury to her head. She had two wounds (entry and exit) both temperoparietal junction. Brain matter was coming out from the wound which were stitched her blood pressure was 60/40 upon arrival and her heart stopped at 2-35 p.m. She was declared dead at 2-50 p.m. as she could not survive in spite of all efforts. He prepared report Exh.PK and also issued death certificate Exh.PK/1. Javed Iqbal, Constable appeared as P.W.10 who was given the last-worn clothes of deceased which he handed over to Akbar Munir, S.I. Masood Ahmed Bhatti, Draftsman appeared as P.W.11, who prepared the site plan and other relevant notes. Muhammad Ashraf appeared as P.W. 12, who identified the dead body of deceased. Mst. Zil e-Humma. Akbar Munir, S.I. who investigated the case appeared as P.W.14. Ghulam Muhammad, Inspector being Incharge of Investigation appeared as P.W.15.

6. The appellant in his statement wider section 342, Cr.P.C. pleaded innocence and stated that the deceased was hit by a blind bullet I and as the police failed to apprehend the actual culprit, therefore, he was booked in the case. He also stated that he was not .given opportunity to adduce his defence. However, the appellant neither opted to examine himself under section 340(2), Cr.P.C. nor adduced any evidence in his defence at the trial.

7. The learned counsel for the appellant has contended that two of the witnesses i.e. P.W.1 and P.W.3 are brother and cousin. of the deceased and, therefore, their testimony cannot be relied upon without independent corroboration from some unimpeachable source; that the pistol allegedly recovered from the appellant has been planted by the police; that the provisions of section 7 of Anti-Terrorism Act, 1997 are not attracted to the. facts and circumstances of the case and that since a motive has neither been set up by the prosecution nor any proved at the trial, therefore, the appellant is entitled to a lesser sentence as the same constitutes a mitigating circumstance.

8. The learned counsel representing the State has contended that the judgment of the learned trial Court is in consonance with law as the same is based on proper appreciation of evidence available on record; that the provisions of section 7 A.T.A. are fully attracted to the case and that keeping in view the independent evidence furbished by P.W.2 and P.W.4 the learned trial court was legally justified in convicting the appellant.

9. We have heard the learned counsel and gone through the record.

10. After hearing the learned counsel and going through the record, we have noticed that the occurrence in the case had taken place in broad-daylight and the F.I.R. had been lodged promptly in which the appellant had been specifically nominated as the sale assailant who had committed the murder of Mst. Zil-e-Humma deceased. 'This obviously excludes the possibility of substitution or misidentification of the appellant who had been apprehended at the spot alone with the weapon of offence.

11. The eye-witness account in the case had been furnished by Muhammad Ali Bajwa (P.W.1), Arif Hussain (P.W.2), Muhammad Asim Javed (P.W.3) and Muhammad Ilyas, A.S.I: (P.W.4). Muhammad Ali Bajwa (P.W.1) deposed that on 20-2-2007 he had followed Mst. Zil e-Humma (deceased) who was travelling in her official car being driven by Arif Hussain (P.W.2). Muhammad Shabbir Baig, her personal staff officer as well as Asim Javed (P.W.3) were in the car. They arrived at the Muslim League House, where the deceased being a Provincial Minister had to hold an opera Kutchehry. The deceased alighted from the car and had hardly proceeded a few steps when the appellant who had covered himself' with a Chaddar started walking along aside her; pulled out a pistol and fired a shot at the left side of her head. Arif Hussain (P. W.2), the driver of the car caught the appellant from behind, snatched the pistol from him and handed him over to Muhammad Ilyas, A.S.I. (P.W.4). The witness proceeded to Police Station Civil Lines, Gujranwala and submitted application Exh.PA whereupon formal F.I.R. Exh.PA/1 was recorded. He had come to know at 2-50 p.m. that Mst. Zil-e-Humma had succumbed to the injuries' at the hospital. The appellant after being apprehended disclosed his name as Muhammad Sarwar.

12. Arif Russian (P.W.3) deposed an the same lines as Muhammad Ali Bajwa (P.W.1), however, added that although the appellant had tried to fire a second shot but before he could do that, the witness had caught hold of film from behind and had snatched the pistol. The appellant and the; pistol were handed over to Muhammad Ilyas, A.S.I. (P.W.4) by the said witness. The pistol was thereafter handed over to Akbar Munir, Sub-Inspector (P.W.14) who unloaded the pistol and recovered 5 live cartridges. The pistol and the cartridges were sealed at the spot and secured vide recovery memo. Exh.P.B.

13. Muhammad Asim Javed P.W.3, another eye-witness of the occurrence reiterated the facts as disclosed by P.Ws. land 2 and further deposed that the blood-stained earth and the crime empty recovered from the spot were taken into possession by Akbar Munir, Sub-Inspector (P.W.14) who sealed the same into parcels in the presence of the witnesses. Muhammad Ilyas (P.W.4) deposed on the same line as P.W.3 acid others.

14. Although P.W.1 and P.W.3 are the real brother and cousin of the deceased nevertheless, their testimony cannot be discarded on that score alone, particularly in wake of the fact that the said witnesses had no reason to falsely implicate the appellant in the case. The evidence adduced at the trial by P.W.2 the driver of the car and P.W.4, the incharge of police escort cannot be brushed aside as the said witnesses are natural witnesses whose presence at the spot at the relevant time cannot be doubted. Needless to state that the said witnesses are independent witnesses who had absolutely no reason to falsely implicate the appellant in the crime. There is nothing on record to even remotely suggest that the witnesses had any previous emnity with the appellant or had nursed a grudge against him in order to falsely involve him in the case. The ocular account furnished by the eye-witnesses is consistent as to the date, time and place of occurrence. And the appellant's presence at the spot and his involvement in the murder of the deceased. The testimony furnished by the eye-witnesses has impressed us as being worthy of implicit reliance.

15. The plea raised by the defence of false implication of the appellant in the case by the police on account of previous cases has remained unsubstantiated which even otherwise does not appeal to reason. Further, it has come out in the testimony of the witnesses that previously six criminal cases of similar nature had been registered against the appellant. The occurrence resulting in the murder of Mst. Zil-e-Humma is in line with the crimes committed by the appellant in the past which obviously suggests a behavioural pattern.

16. The medical evidence in the case had been furnished- by Dr. Sohaila Nudrat Zaidi (P.W.8) who had performed the autopsy of the dead body of the deceased Zil-e-Humma, Dr. Shamona W.M.O. D.H.Q. Hospital, Gujranwala (P.W.9), who had first medically examined the deceased and Dr. Muhammad Anwar, Neuro Surgeon (P.W.13), who had examined the deceased on her arrival at the General Hospital, Lahore. The medical evidence is consistent with the eye-witness account inasmuch as the date, time of occurrence, the weapon used in the occurrence and the locale of injury caused by the appellant as stated by the eye-witnesses has been confirmed by the medical evidence.

17. Reverting to the recovery of pistol .30 bore from the appellant, it has been vehemently argued by the learned counsel for the appellant that pistol P.1. taken into possession vide recovery memo. Exh.PD was the same pistol which was used by the appellant in previous murder cases and had been planted by the police in the instant case. We are afraid the argument is devoid of any force inasmuch as the appellant was apprehended at the spot red-handed with the weapon of offence. The defence has failed to produce any evidence in support of the argument at the trial. The testimony of the recovery witnesses, namely Asim Javed (P.W.3) and Akbar Munir, Sub-Inspector (P.W.14) is creditworthy and fully supports the eye-witness account in all details. A crime empty P.3 had also been taken into possession by the police from the spot which was made into a sealed parcel along with the pistol and dispatched to the Forensic Science Laboratory for comparison. The report received from the Laboratory Exh.PP was in the positive meaning thereby that the empty had been fired from the pistol recovered from the appellant. It is, therefore, manifest that the recovery of weapon from the appellant is creditworthy and deserves to be relied upon as a corroborative piece of evidence. Blood-stained earth collected from the place of occurrence and sealed into a parcel was sent to the office of Chemical Examiner. The reports received from the Chemical Examiner as well as the Serologist Exh.PN and Exh.PO established the place where the occurrence had taken place.

18. It has been vehemently argued by the learned counsel for the appellant that the, motive for the occurrence was missing which not only created doubt about the veracity of the prosecution case but also entitled the appellant to a lesser sentence. We are afraid the argument has no force as absence of motive or failure of the prosecution to prove it does not affect the testimony of the witnesses which is worthy of reliance. The Honourable Supreme Court of Pakistan in the case of Khan Ali alias Khani and another v. The State 2006 SCMR 1744 has observed:-- "It is settled law that absence of motive is no ground to award lesser punishment." In the case of Moaz Shah v. Mohsin Shah and another PLD 2001 SC 458 it was held by the Hon'ble Apex Court that weakness of motive or its absence might not be helpful to an accused when unimpeachable ocular evidence is available. In the instant case all the four eye-witnesses of the occurrence are consistent in their statements.

19. Another aspect which needs consideration is the applicability of the provisions of the Anti-Terrorism Act of 1997. The appellant committed the murder of a sitting Provincial Minister in broad-daylight, at a public place and in the presence of a number of persons from the public who had gathered at the place of occurrence to attend the open. Kutchehry. The cold-blooded murder of Zil-e-Humma had, without any doubt, created a sense of fear and insecurity as defined in section 6 and punishable under section 7 of the Anti-Terrorism Act of 1997.

20. The above discussion leads to an irresistible and unescapable conclusion that the prosecution had succeeded in proving its case to the hilt against the appellant and, therefore, the learned trial Court was justified in convicting the appellant and awarding sentence of death under section 302(b), P.P.C. and section 7(a) of the Anti-Terrorism Act, 1997 as well as two years under section 13 of Pakistan Arms Ordinance (No.XX of 1965).

21. As a sequel to the above discussion, this appeal is dismissed and the conviction and sentence of the appellant recorded by the learned trial Court are upheld and maintained. Capital Sentence Reference No.26-T-2007 is answered in the affirmative and the sentence of death passed by the learned trial Court against Muhammad Sarwar appellant is confirmed. H.B.T./M-433/L Appeal dismissed.