2015 PLP 856 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Appellants were tried in the case registered vide FIR No. 19/2003 under section 302/324/34, P.P.C. read with section 17(4), Haraabah for committing dacoity in the Bank and murder of two persons namely Abdul Wadood and Abdul Razzaq. The learned trial Court vide its judgment dated 10-4-2004 while converting the charge from section 17(3) of Haraabah to sections 7(a) and 7(c) of the Anti-Terrorism Act, convicted the appellants under section 7(a) of the Anti-Terrorism Act, 1997, read with section 34, P.P.C. and sentenced them to death. They were further convicted under section 7(c) of the A.T.A. and were sentenced to 10 years' RI with fine of Rs.20,000 each, in default whereof to further undergo two years' RI. The appellants were further convicted under section 392, P.P.C. and were sentenced to 5 years' RI with fine of Rs.10,000 each or in default whereof to further undergo one year's SI each. Both the sentences awarded under section 7(c) of the A.T.A. and under section 392, P.P.C. were ordered to run concurrently with benefit of section 382-B, Cr.P.C. The learned High Court vide impugned judgment maintained the convictions and sentences recorded by the learned trial Court.

2. Briefly stated the facts of the matter are that on the day of occurrence i.e. 22-10-2003 at 9-25 a.m., the appellants Dadullah and Faizullah while armed with pistol and Kalashnikov respectively, with muffled faces, entered in the Habib Bank Limited, Shahrag Branch with the intention to rob the bank. They fired at the Bank Manager namely Abdul Razzaq and at one security guard namely Muhammad Sharif and thereby caused serious injuries to them. Then the appellants looted an amount of Rs.2,49,810 along with a cheque amounting to Rs.500 from the bank and kept the same in a dark red coloured bag. The appellants while coming out of the bank also caused injuries with firearm to a passerby namely Abdul Wadood. The injured were taken to hospital where Abdul Wadood and Bank Manager Abdul Razzaq succumbed to the injuries and died. The prosecution in order to prove its case produced as many as 20 witnesses.

3. Learned counsel for the appellants inter alia contended that the FIR was lodged after a considerable delay and that too after the arrest of one accused Dadullah; that the accused admittedly had committed robbery with muffled faces and, therefore, the evidence of P.Ws. cannot be relied upon; that the recovery of cheque has not been mentioned in the FIR; that the pistol and the alleged looted amount was produced by the relative of the deceased; that the confession was result of coercion and the same cannot be relied upon; that the appellants have been falsely involved in the present case for mala fide intention and the real culprits have been let off; that no identification parade was held; that the report of Forensic Science Expert is not useful as the empties and the weapons of offence were sent after two months to the FSL; that the report itself says that the pistol .32 bore was faulty; that even otherwise the recovery of pistol from Dadullah is of no value in view of the admitted fact that P.W.3 Muhammad Shafi had snatched the pistol from the appellant Dadullah and handed over the same to the officer of the Levies who was investigating the case; that this creates doubt in the prosecution case and in view of the law laid down by this Court in Naveed v. State (2014 SCMR 1464) benefit of the same be given to the appellants.

4. Learned counsel for the complainant, on the other hand, has defended the prosecution case by submitting that the eye-witnesses had no enmity to falsely implicate the appellants; that the medical evidence and the report of Forensic Science Expert fully support the prosecution case; that the looted amount as also the weapons of offence were recovered from the accused; that the appellants themselves had made confession which has been proved through statement of P.W.18, the Judicial Magistrate and that the prosecution has proved its case beyond any reasonable shadow of doubt.

5. Learned Additional Advocate-General has adopted the arguments of learned counsel for the complainant while defending the prosecution case.

6. We have heard learned counsel for the parties as also learned Law Officer at length and have gone through the evidence on record.

7. Both the appellants on the day of occurrence entered in the Bank while armed with firearms and ordered the officials to be in hands up position. They also fired at the Bank Manager Abdul Razzaq and the security guard Muhammad Sharif. Thereafter they crossed the counter and took an amount of Rs.61,310 along with a cheque which was amounting to Rs.500 and thereafter they got opened the safe through P.W.1 Naseer and took an amount of Rs.1,88,500 and put the amount in a red colour bag. Although the accused were with muffled faces yet both of them were introduced with specific dressing and arms in their possession. According to P.W.1 Naseer Ahmed and P.W.5 Muhammad Sharif one of the accused was wearing marri styled clothes and there was embroidery with white thread on his waistcoat. This accused had brown turban on his head and black spectacles on his eyes. He was holding a folding Kalashnikov whereas the other was wearing waistcoat like coat black in colour and wearing brown trouser and was holding a pistol in his hand. He was in possession of dark red bag too. The accused armed with Kalashnikov fired upon the Bank Manager and the other accused armed with pistol fired at the security guard. Both the P.Ws. i.e. P.W. 1 and P.W.5 have corroborated each other and they remained consistent qua the role attributed to each of the accused. There are two other eye-witnesses also i.e. P.W.10 Amanullah and P.W.11 Muhammad Aslam who had seen the accused coming out of the bank having Kalashnikov and pistol in their possession and a red colour bag. They have specifically narrated the story that they heard sound of firing in the Bank and then they saw the accused coming out of the Bank and that as a result of firing of Kalashnikov a passerby namely Abdul Wadood was done to death. These witnesses also remained consistent and they have also corroborated each other. Nothing could be brought to support the defence's case. These two witnesses had specifically identified the accused/appellants with their names seeing them while coming out of the bank and making fires outside the bank. The accused who was armed with Kalashnikov was appellant Faizullah while the accused armed with pistol was appellant Dadullah. Appellant Dadullah was apprehended by P.W.2 Ghulam Yahya, P.W.3 Muhammad Shafi and P.W.4 Akhtar Muhammad having been found in possession of pistol and the red bag. P.W.3 Muhammad Shafi has narrated the story that he was going to bazaar when he heard the sound of firing; that a person wearing waistcoat and a brown colour turban, riding on motorcycle when reached near to him slipped on stones and fell down; that he stood up and while pointing the pistol at him said that he will kill him. His pistol was snatched, which was later on given to Naib Tehsildar. During the process the other two P.Ws. also reached at the spot and the accused was taken to Levies Thana. In this view of the matter, when the accused were specifically identified by P.W.10 and P.W.11 when coming out of the Bank and later by P.W.2, P.W.3 and P.W.4 who had apprehended appellant Dadullah, there arise no question of mistaken identity. Hence, non-holding of identification parade is of no help to the appellants. The statements of all the above said witnesses fully connect the appellants with the commission of crime. They have narrated the story in a natural manner. All the witnesses remained consistent and corroborated each other. No mala fide could be attributed by the learned counsel for the appellants towards the witnesses as to why the appellants have been falsely involved in the present case and the actual culprits have been let off. So far as the point raised by learned counsel for the appellants that the FIR was recorded after a delay in which the appellants were not named is concerned, admittedly FIR was got recorded after a delay of only one hour but the same in the facts and circumstances of this case is justified, as immediately after the occurrence, written application for registration of FIR was sent to Levies and at that time the appellants were not identified. Appellant Faizullah was also arrested on the same day. On his personal search three keys of his residence were recovered and upon search of his residence, one waistcoat Marri style brown in colour, one turban brown in colour, one pair of clothes, one magazine with 17 lives rounds, one Kalashnikov with magazine having 8 rounds in it, one pair of chapel, one empty of Kalashnikov, 3 rounds of .32 bore pistol, 4 rounds of T.T. Pistol, one black spectacle, more than half bottle of liquor, two empty bottles of liquor, one bottle empty coca cola were recovered from his Dera. The search was made in presence of P.W.6 Raza Muhammad. It is on record that from the crime scene two empties of Kalashnikov and two empties of pistol were recovered. Although the empties and the weapons of offence were sent after two months, yet according to the report of FSL both the weapons were used in the commission of offence. So far as the question raised by the learned counsel for the appellants that the pistol was faulty is concerned, it is specifically mentioned in the report that though "faulting present in the barrel", yet "it reveals that fire made through it." Even otherwise, this point was never raised before and it is for the first time that the learned counsel is agitating this point here. Medical evidence also fully supports the prosecution case so far as the nature of injuries is concerned.

8. The appellants though retracted later on, have also earlier separately confessed the guilt before the Judicial Magistrate and have narrated the details and background of the occurrence. This is settled law that conviction could not be recorded on the sole basis of confessional statement and the prosecution has to prove its case beyond any shadow of doubt. However, having gone through the evidence, we have found that the confessional statements of the accused were not the result of maltreatment and coercive measures. The Judicial Magistrate has stated that the accused were given relaxation of time and they were told that they are not bound to record their statements. It was further clarified that if they did not want to make their statements, they will not be handed over to Levies and will be sent to judicial lockup. Opportunity was provided to both the accused to cross-examine each other. Notwithstanding the procedural defect in the confessional statement, if any, a judicial confession if it is found true, voluntary and confidence inspiring, could safely be made basis for conviction. Retraction of confessions by the accused seems to be palpably false and incorrect only to save their skin and the only conclusion that could be drawn is that confessional statements were recorded by the accused voluntarily. So far as the point raised by learned counsel that the questions were in printed form is concerned, it is not necessary that the questions must be handwritten. The same were in accordance with the guidelines and the statements were in accordance with section 164(1A) of the Cr.P.C. The appellants have stated that they were drunk and prior to that they had made a full plan for dacoity. Keeping in view all other evidence in juxta position, it can safely be held that the appellants had committed the offence and they should not be dealt with leniently.

9. Conceptually punishment to an accused is awarded on the concept of retribution, deterrence or reformation. The purpose behind infliction of sentence is two fold. Firstly, it would create such atmosphere, which could become a deterrence for the people who have inclination towards crime and; secondly, to work as a medium in reforming the offence. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society. Concept of minor punishment in law is to make an attempt to reform an individual wrongdoer. However, in such like cases, where the appellants have committed a pre-planned dacoity and killed two persons, no leniency should be shown to the culprits. Sentence of death would create a deterrence in the society due to which no other person would dare to commit the offence of murder. If in any proved case lenient view is taken, then peace, tranquility and harmony of society would be jeopardized and vandalism would prevail in the society. The Courts should not hesitate in awarding the maximum punishment in such like cases where it has been proved beyond any shadow of doubt that the accused was involved in the offence. Deterrence is a factor to be taken into consideration while awarding sentence, specially the sentence of death. Very wide discretion in the matter of sentence has been given to the courts, which must be exercised judiciously. Death sentence in a murder case is a normal penalty and the Courts while diverting towards lesser sentence should have to give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner. Now a days the crime in the society has reached an alarming situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to run away scot-free or with punishment not commensurate with the proposition of crime, bringing the administration of criminal justice to ridicule and contempt. Courts could not sacrifice such deterrence and retribution in the name of mercy and expediency. Sparing the accused with death sentence is causing a grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved.

10. This Court in Noor Muhammad v. State (1999 SCMR 2722) has also adverted to this aspect of the matter and has observed as under:-- "However, we may observe that the people are losing faith in the dispensation of criminal justice by the ordinary criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should realise that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent to the commission of offences. One of us (Ajmal Mian, C.J., as he then was) has highlighted this aspect, inter alia in the case of State through the Advocate-General Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1), relevant portion whereof at page 19 reads as follows:-- (3) It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling insecured. The learned trial Court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution the technicalities should be overlooked without causing any miscarriage of justice."

11. For what has been discussed above, the prosecution has proved its case against the appellants beyond, any shadow of doubt. The appellants do not deserve any leniency in reduction of sentence. The appeal having no merit is accordingly dismissed. MWA/D-2/SC Appeal dismissed.