2008 SCMR 1544 (PLP)

CH. EJAZ YOUSAF, J.

These appeals, by way of leave, are directed against judgment dated, 23-10-2002 passed by a learned Division Bench of the learned High Court, Multan Bench, Multan, whereby Criminal Appeal No.36 of 2002, filed by the appellants against their convictions and sentences recorded by the Judge, Anti-Terrorism Court, Multan vide judgment dated 25-6-2002, was dismissed and Murder Reference No.7 of 2002 was answered in the affirmative.

2. Facts of the case, in brief, are that report was lodged by one Noor Muhammad with Police Station Tulemba, District Khanewal on 4-2-2001, wherein it was alleged that on the said date, at about 8-00 p.m. when the complainant along with one Riaz was on his way back home, on a bicycle, suddenly four persons two of whom were armed with pistols .30 bore, the third one with a shotgun and the fourth was empty handed, intercepted them and snatched their bicycles. They also searched them on gunpoint and took away a sum of Rs.2,000 along with a Rado wrist watch of complainant and a sum of Rs.3,000 and one electronic wrist watch from Riaz. However, as the culprits tried to tie their hands at their back, Riaz, having found an opportunity, grappled with one of the culprits, whose name was later on known as Shakeel, and tried to overpower him, whereupon the rest of the culprits resorted to firing causing injuries to both Riaz and Shakeel. Thereafter, all the accused persons fled away. On the alarm raised, Khizar Hayat and Iqbal, were attracted to the spot in whose presence Shakeel injured, disclosed the names of his companions as Imtiaz Ali, and Ishaq. It was claimed by the complainant that since it was a moonlit night therefore, all the accused persons were identified by him as well as the witnesses. On the stated allegation formal F.I.R. bearing No.34/2001 was registered, at the said Police Station, under sections 302/394/411, P.P.C. and investigation was carried out in pursuance thereof. On completion of the investigation the accused persons were challaned to the Court for trial. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegation levelled against the accused persons examined 8 witnesses in all, whereafter the accused persons were examined under section 342, Cr.P.C. In their above statements, the accused persons denied the charge and pleaded innocence. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of section 340(2), Cr.P.C. On conclusion of the trial, the learned trial Judge, convicted the appellants and sentenced them to the punishment vide judgment dated 25-6-2002, as under:-- Under section 302(b), P;P.C. all the appellants were awarded death sentence with further direction to pay Rs.50,000 each as compensation payable to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default six months' S.I. Under section 394, P.P.C. they all were sentenced to undergo life imprisonment with fine of Rs.25,000 each or in default 2-1/2 years' R.I. each. Under section 411, P.P.C. they were sentenced to 3 years' R. I. each. Under section 7(a) ATA of 1997, all the accused were awarded death sentence with fine of Rs.25,000 each or in default 2-1/2 years' R.I. each. All the sentences were ordered to run consecutively with benefit of section; 382-B, Cr.P.C. The above judgment was assailed before the High Court, which was dismissed vide the impugned judgment, hence these appeals.

3. Sardar Muhammad Siddique Khan, learned counsel for the appellant has contended that neither the acts allegedly, done by the appellants had created sense of fear and insecurity in the public nor any section of the community or any sect was affected, therefore, convictions of the appellants under section 7-A of the Anti-Terrorism Act, 1997 were not sustainable; that occurrence took place at night and though it was alleged that all the three accused persons indiscriminately resorted to firing yet, since specific roles were not attributed to them, therefore, it was not a case of capital punishment. He added that since the appellants are in death cells, in great misery, since the time of their arrest i.e. for more than seven years, therefore, a lenient view may be taken in the matter of their sentences.

4. Ch. Munir Sadiq, learned Deputy Prosecutor-General Punjab, appearing on behalf of the State, has candidly conceded that since the acts done by the appellant had not created sense of fear or insecurity in the public, therefore, section 7 of the Anti-Terrorism Act was not attracted in the case. However, stated that since guilt of the accused persons was fully brought home, at the trial, by the prosecution through independent and reliable evidence, therefore, the appellants were rightly convicted for the offence of murder. He found great difficulty in controverting the contention that murder was cumulative effect of the injuries caused by the accused persons.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record, with their assistance, minutely.

6. Prosecution case rests on the ocular evidence account whereof, at the trial, was furnished by P.W.6 Noor Muhammad, the complainant, and P.W.7 Khizar Hayat, the dying declaration, the medical evidence, the evidence of recoveries, report of fire-arm expert and circumstantial evidence.

7. It would be pertinent to mention here that occurrence in the instant case took place at 8-00 p.m. on Rajbah, near Basti Pul Chhawani F.I.R. was registered at 8-40 p.m. oh the same day at P.S. Tulemba District Khanewal situated at a distance of a about 10 acres. In the F.I.R. not only names of the accused persons were mentioned but specific roles to each of them were also attributed, since the names of the eyewitnesses including P.W.7 Khizar Hayat were also mentioned in the F.I.R. therefore, the possibility that it was got registered after deliberations has to be ruled out. So far the testimony of P.W.6 Noor, Muhammad and P.W.7 Khizar Hayat is concerned, we do not find any discrepancy in their statements rendering them untrustworthy of credence, they stood the test of cross-examination and gave consistent and coherent details of the occurrence. They stand corroborated by the medical evidence as well. It has come on record through the statement of P.W.l Dr. Nazir Ahmad that deceased, Riaz was brought to the hospital at 8-30 p.m. on the same day, in injured condition, where he was examined by him and since his condition was critical, therefore, he was referred to Nishtar Hospital, Multan for further treatment. The doctor has confirmed that at the time of examination, the deceased was in his senses and thereof, he had issued Exh.P.W./1, the fitness certificate, whereafter statement of the deceased Riaz under section 161, Cr.P.C. (the dying declaration) was recorded by the Investigating Officer. It would be worthwhile to mention here that in the dying declaration, not only the names of accused persons were mentioned but they were also charged for making firing on the deceased as well as their companion, namely, Shakeel who too, sustained injuries in the course of occurrence. The name of complainant Noor Muhammad also finds place in the dying declaration, hence, it could not have been disbelieved. It has also come on record that soon after the occurrence the injured culprit, namely, Shakeel, had disclosed the names of his companions in consequence whereof the police was able to get hold of them and after their arrest crime weapons were also recovered from their possession which, as per FSL report, matched with the empties taken and secured from the place of occurrence. It is also an admitted fact that there was no previous enmity or hostility between the parties. Though it was, in defence, pleaded that deceased Riaz had established relations with Mst. Sumaira, sister of the deceased culprit Shakeel, yet, it was disbelieved by both the courts below. Since, at the trial, the prosecution was successful in establishing charge against the appellants therefore, they were rightly convicted for the offences of murder and robbery. However, since it was not established on record that the acts done by the accused persons had created sense of fear or insecurity in public, nor any section of the public or community or any sect was shown to have been affected, as the incident had taken place at night on the bank of canal which by no stretch of imagination can be termed as a public place, therefore, in our view, section 7 of the Anti-Terrorism Act, 1997 was not attracted in the instant case. Convictions and sentences recorded against the appellants on that count, are not sustainable. In this view, we are fortified by the observations made by this Court in following reported judgments (i) Mohabbat Ali and another v. The State and another 2007 SCMR 142, (ii) Fazal Dad v. Col (Rtd.). Ghulam Muhammad Malik and others PLD 2007 SC 571, (iii) Mst. Najma-un-Nisa v. Judge, Special Court Constituted under Anti-Terrorism Act, 1997 2003 SCMR 1323. Accordingly convictions and sentences recorded against the appellants under section 7-A of the Anti-Terrorism Act, 1997 are set aside.

8. As regards the quantum of sentence, it may be mentioned here that since firing, in the instant case, was attributed to all the accused persons and it has come on record that the injuries caused by all the accused persons collectively culminated in death of the deceased, therefore, we feel that ends of justice would be met with if sentences of death inflicted on the appellants under section 302(b), P.P.C. are commuted to that of life imprisonments. Order accordingly. The rest of the sentences inflicted on the appellants as well as the amount of compensation ordered to be paid to the legal heirs of the deceased shall remain the same as ordered by the trial Court. Benefit of section 382-B, Cr.P.C. already awarded to the appellants shall remain intact. However the sentences inflicted on the appellants shall run concurrently inter se. Sequel to the above, Murder Reference No.7 of 2002 stands dismissed. 10.(sic) With the above modifications in the convictions and sentences of the appellants, these appeals are partly allowed. N.H. Q./M-47/SC Order accordingly.