2011 SCMR 613 (PLP)

MUHAMMAD FARRUKH MAHMUD, J.

This appeal, by leave of this Court, is directed against judgment dated 17-2-2003 handed down by learned Division Bench of Lahore High Court, Lahore in case F.I.R. No. 194 registered at Police Station Qila Kalarwala on 30-10-2000 for offences under sections 302/324/34, P.P.C. read with section 7 of Anti-Terrorism Act, 1997, whereby the sentence of death on five counts and sentence of fine of Rs. 100,000 each on each count under section 7(a) of Anti-Terrorism Act, 1997 recorded by learned trial Court vide judgment dated 27-4-2002 recorded against the appellants, was upheld. The sentences of life imprisonment and fine of Rs.100,000 (one Lac) each on each count for causing injuries to Master Aslant, Nadeem Aslam, Azeem Aslam, Qaseem Aslam, Naseer Ahmad and Muhammad Arif, recorded by the learned trial Court were maintained, however, the conviction was altered from offence under section 7(b) of Anti-Terrorism Act, 1997 to offence under section 7(c) of the Act. The judgment passed by the learned trial Court relating to R.I. for one year each on each count for non-payment of tine was maintained, similarly, benefit of section 382-B, Cr.P.C. extended to the convicts was maintained. Muhammad Iqbal son of Fazal Hussain was also tried with the appellants. He was accordingly convicted and sentenced by the learned trial Court but he did not challenge his convictions and sentences before the learned High Court, however, the learned High Court upheld the judgment recorded by the learned Trial Court against him while answering Murder Reference qua him, in the above noted terms. P.W.28 Muhammad Muzaffar Malik, S.H.O. Police Station Qila- Kalarwala reached the place of occurrence within half an hour and recorded the statement of Mushtaq Ahmad complainant P.W.8, at 6 a.m.

2. The relevant facts as given in the above noted statement are that the complainant who was resident of Village Ghattalian belonged to Ahmdia Sect. He used to give (DARAS) in Baitulzikar situated in Ghattalian. On the fateful day i.e. 30-10-2000 he was giving Daras after fajar prayers, as usual, Shahzad Ahmad, Iftikhar Ahmad, Atta Ullah, Ghulam Muhammad, Abbas, Master Asian', Nadeem Aslam, Azeem Aslam, Tasneem Aslant, Qaseem Aslam, Naseer Ahmad, Arif, Muzaffar Ahmad and Zulfiqar Ali were listening to the Daras. At about 5-30 a.m. four persons who were armed with Kalashnikovs and were not previously known to the complainant entered in the Baitulzikar, two of them who were aged about 24-25 years, were of strong physique and were keeping beards stood in the compound of the Baitulzikar while the remaining two persons entered inside the room of Baitulzikar and started indiscriminate tiring on the persons present there. Due to firing caused by the accused, who had entered in the room, Shahzad Ahmad, Iftikhar Ahmad, Atta Ullah, Ghulam Muhammad, Abbas, Master Aslam, Nadeem Aslam, Azeem Aslam, Qaseem Aslam, Naseer Ahmad and Arif were seriously wounded. The noise of tiring attracted inhabitants of the locality to the spot. Thereafter, all the four accused made good their escape in a car which had been parked on metallad road. Shahzad Ahmad and Iftikhar Ahmad died on the spot, while other injured persons were taken to the hospital, out of them Atta Ullah, Ghulam Muhammad and Abbas could not survive and lost their lives. According to statement of the complainant, Muzaffar, Zulfiqar Ali and Tasneem Aslant had also witnessed the occurrence and that complainant and other P.Ws. could identify the assailants. The descriptions of the two accused who had entered into the room and resorted to firing was given in the statement. One of the accused was aged about 24-25 years, was of strong physique, was keeping beard his height was about 5 feet 7/8 inches, and was wearing `shalwar kameez', the other accused was of the height of about 5 feet 6/7 inches, he was of wheatish complexion, had a strong physique was aged about 20-25 years and was wearing `shalwar kameez'. The motive behind the occurrence was that the complainant and other persons present in Baitulzikar belonged to Ahmdia Sect.

3. During the trial, prosecution produced as many as 30 witnesses in support of its case. Mushtaq Ahmad complainant P.W.8, Muzaffar Ahmad P.W.9, Muhammad Arif-injured P.W.10 and Master Aslam-injured P.W.11, furnished the ocular account. The medical evidence consists of statements of Dr. Muhammad Younis P.W.l6, Dr. Tariq Mehmood, P.W.17, Dr. Khalid Mehmood Ashraf, P.W.18 and Dr. Gul Nawaz P.W.19. According to medical evidence the deceased and the injured had received firearm injuries. Muhammad Muzaffar Malik, Inspector (P.W.28) stated about recording the statement of Mushtaq Ahmad he also stated about inspection of spot and collection of 31 crime empties of Kalashnikov vide memo Exh.PK. He also stated about collection of 16 led bullets from the spot vide memo Exh.PL, he further stated about the initial investigation of the case. Tahir Majid Khan, Inspector (P.W.25) also stated about investigation of the case including the arrest of Nasrullah and Iqbal and the recovery of crime weapons and bullets at their instance, he further stated that both Nasrullah and Iqbal, after their arrest were put to identification test. Muhammad Tajamal Abbas Rana Magistrate appeared as P.W.30 and stated that on 20-11-2000 he conducted identification parade at district jail qua Shakil Nasrullah and Muhammad Iqbal. According to his statement, Mushtaq Ahmad (P.W.8) Muzaffar Ahmad (P. W. 9) and Muhammad Arif (P. W .10) correctly identified the accused. He further stated that on 23-6-2001, Nadeem Butt appellant was put to identification test who was correctly identified by Mushtaq Ahmad, Muhammad Arif and Master Muhammad Aslam (P.Ws. 8, 10 and 11). After placing on record the reports of Chemical Examiner, report of Serologist and report of Forensic Science Laboratory, the prosecution closed its case. Nadeem Butt and Nasrullah Khan appellants in their statements recorded under section 342, Cr.P.C. P.C. pleaded to be innocent and claimed that they were involved in the present case due to enmity. Shakil Ahmad appellant took specific plea of grave and sudden provocation which is being reproduced: "For the just decision of this case, we would like to reproduce the reply to question No. 13 given by Shakil appellant in his statement recorded under section 342, Cr.P.C. P.C. The same reads as under:-- "On 30-10-2000 at about 10 a.m. Khatm-e-Nabooat Conference was being convened by International Khatm-e-Nabooat Organization in the area of Chowk Qila Kalarwala adjacent to village Gattalian, District Sialkot, in which, renowned religious scholar namely Maulana Ali Sher Haideri, Maulana Manzoor Ahmad Chinioti, Syed Attaull Munium Bukhari, Mulana Muhammad Nawaz Baloch and others had to address. In village Gattalian, there are seven places of worship of Qadianies and majority population of village Gattalian are Qadianies. The Qadiani community of village Gattalian felt open challenge for their religious integrity in the area and by all means and at every cost, Qadianies wanted to sabotage/ stop this Conference and in this connection, Qadianies have hatched a conspiracy to physically eliminate all the above mentioned scholars. Night before the evenful day, the organizer of the Conference deputed volunteers to watch the activities of Qadianies in different areas as they were apprehending some mischief from Qadiani community. I was deputed in the village Gattalian. After fajar prayers, I went to village Gattalian and while I was passing in the street of Gattalian I saw so many pairs of shoes inside baitul zikar and heard a person addressing to others gathered there. He was asking them "that holding of Khatim-e-Nabooat Conference in our area is a question for religious ghairat and we cannot tolerate any Such Conference in our vicinity particularly when we are commanding majority in the area of Qila Kalarwala. He was also asking to the persons gathered that Mirza Ghulam Ahmad Qadiani is truthful holy prophet, Nabi, Rasul and also Maseeh Mahud. He was referring a book written by Mirza Ghulam Muhammad Qadiani "Aik Galti Ka Izahala". Tooba Naooz-o-billah, he was asking that Muhammad was not last Prophet and we being truthful followers of Mirza Ghulam Ahmad Qadiani cannot allow the above noted religious scholars to insult Mirza Ghulam Ahmad Qadiani in our area. He was giving derogatory remarks in the honour of Hazrat Muhammad (PBUH) and also defiling the sacred names of Sahaba-e-Karam and Ummahat-ul-Momineen. He was also asking that in order to sabotage the Khatm-e-Nabooat Conference they have collected a huge quantity of arms and ammunition and stored the weapons in baitul zikar. Now it depends upon them whether such Conference should be allowed or not. All the religious scholars of that Conference should be killed. He further asked the audience to do or die. After hearing those words I lost my control and being truthful Ashiq-e-Rasool entered in that room, where many Kalashnikovs and other ammunition was lying, picked up one of them and made indiscriminate firing on the persons present there. They also picked up their weapons and fired on me but I luckily escaped and decamped from the spot."

4. Learned counsel for the appellants has argued that assailants could not be identified by any of the P.Ws. and that the features, given in the F.I.R. were general in nature which could not provide any clue to the identification, that prior to identification the accused were shown to the P.Ws., hence the proceedings of identification test were fake. He has further argued that the P.Ws. who must have been trying to save their lives did not have sufficient time to have a close look at the accused, specially when the bullets were being sprayed. According to learned counsel Nasrullah Khan and Nadeem Butt appellants remained present in the compound of the Baitulzikar where no light was available so they could not be seen by the P.Ws. According to learned counsel, in any case, Nasrullah Khan and Nadeem Butt did not deserve the capital punishment as no avert act, like lalkara or ineffective tiring was attributed to them. While arguing for Shakil Ahmad appellant the learned counsel referred to his statement and submitted that the defence plea of grave and sudden provocation was made out front the circumstances of the case, therefore Shakil Ahmad also did not deserve capital punishment. Conversely, it has been argued that Nadeem Butt and Nasrullah Khan appellant had accompanied the rest of the accused therefore, they were rightly convicted and sentenced by the learned Courts below. Commenting upon the defence plea advanced by Shakil Ahmad appellant, the learned counsel has submitted that after taking the specific plea of grave and sudden provocation the onus had shifted upon Shakil Ahmad under Article 121 of `Qanun-e-Shadat' to prove his defence plea that insupport of the defence plea no witness was produced so much so that Shakil Ahmad himself did not avail the opportunity to appeal/as witness under section 340(2), Cr.P.C, that the defence plea was bogus and belated and the statement of eye-witnesses were fully corroborated by the medical evidence, motive, recovery of weapon at the instance of Shakil Ahmad and its tallying with the empties recovered from the spot. The learned counsel cited following judgments of this Court wherein the principle of burden of proof of defence plea had been discussed:-- (1) Elahi Bakhsh and others v. The State and others, (2005 SCMR 810). (2) Muhammad Naeem and another v. State 2005 SCMR 284.

5. We have heard learned counsel for the parties at length and have scanned the record of the case. In support of its case prosecution has produced four eye-witnesses Mushtaq Ahmad, Muzaffar Ahmad, Arif and Master Aslam, out of them Arif and Master Aslam P.Ws. 10 and 11 received injuries during the occurrence and their presence could not be denied. The presence of Mushtaq Ahmad complainant has also been admitted. All these witnesses have given consistent and trustworthy account of the occurrence. It is evident from the fact that they did not exaggerate the role assigned to Nasrullah Khan and Nadeem Butt appellants. All the eye-witnesses have corroborated each other on all the material points. They were subjected to lengthy cross-examination yet no dent could be caused in the veracity of their statements. The occurrence took place at 5-30 a.m. whereas the statement of Muslttaq Ahmad was recorded at 6-00 a.m. within half hour of the occurrence, detail of the occurrence and descriptions of the accused have been given in the promptly lodged report. The identification test was conducted by P.W.30 Muhammad Tajamal Abbas Rana Magistrate. Perusal of his statement, on oath, reveals that the witnesses while identifying the accused had also described the role played by them. Furthermore, all the P.Ws. identified the accused before learned trial Court and also specified their roles. The argument of the learned counsel that no light was available at the time of occurrence is devoid of any force as it cannot be presumed that the Daras was being given in a room which had no lights. The statements of the eye-witnesses are fully supported by the medical evidence as the deceased who were five in number lost their lives due to firearm injuries, similarly, remaining six persons who survived had also received fire-arm injuries. The ocular evidence is also corroborated by the evidence of motive which is not disputed. Perusal of the report of Forensic Science Laboratory Ex.PNNN, reveals that 28 empties recovered from the spot tallied with the weapon recovered from Shakil Ahmad while rest of the three crime empties tallied with the weapon recovered at the instance of Muhammad Iqbal (whose case is not before us), so this piece of evidence also corroborates the eye-witness account. Now coming to the defence plea it has rightly been observed by the learned High Court that it was an afterthought as Shakil Ahmad appellant did not appear before the police immediately, the belated defence plea is neither supported by any evidence nor by the circumstances of the case. As already noted above even Shakil Ahmad did not appear as a witness in support of his defence plea. According to defence plea the complainant and other members of the community had collected huge quantity of arms and ammunition which were stored in Baitulzikar. This assertion is belied by the circumstances that no one was posted as guard by the complainant party at the door of the Baitulzikar nor any one was posted to guard the stored ammunition. It is settled law that benefit of sudden and grave provocation can only be given if the provocation was not sought. In this regard we would like to reproduce following lines of the defence plea:-- "Night before the eventful day, the organizer of the Conference deputed volunteers to watch the activities of Qadianies in different areas as they were apprehending some mischief from Qadiani community. I was deputed in the village Gattalian." The above noted portion of the defence plea makes it manifest that Shakil Ahmad, who was resident of Daska had gone to village Gattalian with a specific purpose. The perusal of Article 121 of `Qanun e-Shahadat' makes it manifest that where a person causes the death of another person it is for him to show that his act was removed from the category of murder by one of the exceptions. The provocation must be such as will upset not merely a hasty, hot-tampered and hypersensitive person but would upset also a person of ordinary sense and calmness. The law does not take into account abnormal creatures reacting abnormally in given situations. The law contemplates the acting of normal beings in given situations and the protection that is offered by the Exception is the protection of normal beings reacting normally in a given set of circumstances. Where the provocation was sought by the accused, as in this case, it cannot furnish any defence against the charge of murder. In Mehra Mistak v. Emperor, (AIR 1934 Lahore 103), it was observed as follows: "A person cannot be said to have done an act under grave and sudden provocation if he was already cognizant of the circumstances which are alleged to have caused him the provocation." Both the learned Courts, for valid and cogent reasons, have rejected the defence plea, due weight is to be given to the opinion of learned Courts. In nutshell, in our opinion, the defence plea was neither supported by any reliable evidence nor by the circumstances of the case and was rightly rejected.

6. In view of the above noted circumstances, we are of the considered opinion that the prosecution proved its case against appellants beyond any reasonable doubt. The appeal to the extent of Shakil Ahmad appellant is dismissed.

7. We have given our considered thought to the quantum of sentence qua Nasrullah Khan and Nadeem Butt appellants. Admittedly they remained present in the compound of the Baitulzikar but they did not raise any lalkara and did not fire a single shot aiming at the persons present in Baitulzikar. It finds support from the fact that the empties recovered from the spot did bit tally with the weapons allegedly recovered at their instance. Their roles were distinguishable from the role of those accused who fired, killed and injured the persons present in Baitulzikar. Hence while maintaining their convictions on five counts under section 7(a) of Anti-Terrorism Act, 1997, we reduce their sentences to life imprisonment on all counts. The convictions and sentences of life imprisonment recorded under section 7(c) of Anti-Terrorism Act, 1997 are maintained. All the sentences would run concurrently. The benefit of section 382-B, Cr.P.C. would be given to Nasrullah Khan and Nadeem Butt appellants. The amount of fine inflicted upon the appellants is converted into compensation under Section 544-A on all counts, in default of payment thereof, each of the convict on each count would suffer imprisonment for six months.

8. With the above modification, relating to the sentences of Nadeem Butt and Nasrullah Khan, this appeal is partly allowed. N.H.Q./N-18/SC Order accordingly.