' KHAWAJA MUHAMMAD SHARIF, J.---Criminal Appeal No.390-.1 of 2003 (Muhammad Gulzar v. The State), Crriminal Appeal No.2-J of 2004 (Zulfiqar v. The State) and Murder Reference No.33-T of 2003 (sent by the learned trial Court for confirmation of the sentence of death awarded to the appellants) are being disposed of through this Single judgment as they arise out of the same impugned judgment dated 3-7-2003 passed by the learned Judge Anti-Terrorism Court No.1, Gujranwala, whereby, having tried the appellants in the case registered vide F.I.R. No. 180 of 2002 dated 20-5-2002, under sections 302/324/148/109, P.P.C. Read with section 7(a)(c) of the Anti- Terrorism Act, 1997, Police Station Civil Lines, Gujranwala, both the appellants, namely, Muhammad Gulzar and Zulfiqar Ali, were convicted under section 7(a)(c) of the Anti-Terrorism Act, 1997 and section 302(b)/34, P.P.C. And sentenced to death each on three counts with a direction to pay Rs.2 lac-each as compensation to the legal I heirs of each deceased in default whereof to further undergo S.-I. For six months each. They were further convicted uhder section 324, P.P.C. Read with section 7(e) of the Anti-Terrorism Act, 1997 and were sentenced to imprisonment for life each and to pay Rs.20,000 as fine to injured Muhammad Ayub in default whereof to further undergo S.-I. For three months each. The appellants were further convicted under section 337-F(i), P.P.C. For injury on the person of injured and sentenced to one year R.I. With a direction to pay Daman of Rs.5,000 each. Both the sentences of imprisonment were directed to run concurrently. While eleven co- accused of the appellants, namely Muhammad Amin, Khalid, Muhammad Nadeem, Muhammad Shahbaz, Muhammad Ashraf, Khalil, Muhammad Jabbar, Muhammad Waris, Muhammad Saleem, Muhammad Siddique and Haleem were extended to benefit of doubt and acquitted from the case.
Co-accused Liaqat Ali and Zahid Iqbal were declared Proclaimed Offenders vide the same judgment.
2. The prosecution story, as unfolded through F.I.R.(Exh.P.M./1) registered on the statement of the complainant Muhammad Sharif (P.W.16), briefly stated is that the complainant, on the day of occurrence along with Muhammad Ismail, Muhammad Ayub and Mehboob Ahmad and Ijaz Ahmad, along with his Bhanjaas Muhammad Shafique and Muhammad Irfan, had come to Gujranwala, in order to appear before the learned Magistrate to submit bail bonds and were waiting for their call whereas Ashraf, Saleem, Haleem, Jabbar, Amjad Iqbal, Waris were present outside the Court for appearing before the Court when at 11-00 a.m. From the Northern side, the accused Muhammad Gulzar in police uniform armed with official rifle along with Muhammad Amin, Muhammad Shahbaz, Liaqat armed with .30 bore pistol and Khalil came and from the Southern side Waqas, a police official in uniform armed with official rifle along with Khalid, Ishtiaq, Zuliqar and Nadeem armed with pistol .30 bore appeared in the corridor; that Amin Goraya and Liaqat raised a Lalkara that revenge of the murder of Sultan, the brother of the accused Gulzar, be taken from Sultan and others; that Muhammad Gulzar, Liaqat and Zulfiqar fired with their rifles at the complainant party; that Waqas also fired with his official rifle; that Muhammad Shafique, Sultan and Irfan, after receiving the fires fell down in the injured condition and died at the spot whereas Muhammad Ayub received fire on his right shoulder and was injured; that the occurrence was witnessed by Muhammad Ijaz and Muhammad Ayub; that several persons including the police officials were attracted to the place of occurrence and that after hearing the noise of firing, who apprehended Waqas, Amin Goraya, Khalid, Nadeem and Shahbaz. The motive, alleged by the complainant in the F.I.R., was the murder of a brother of appellant Gulzar.
3. After having completed usual formalities and investigation of the case, the police submitted challan against the accused before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 23 witnesses.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case, attributed their involvement in the present case to false implication and claimed trial.
5. Learned counsel for the appellants, in support of both the appeals, contended that eleven co- accused of the appellants, namely, Muhammad Amin, Khalid, Muhammad Nadeem, Muhammad Shahbaz, Muhammad Ashraf, Khalil, Muhammad Jabbar, Muhammad Waris, Muhammad Saleem, Muhammad Siddique and Haleem were extended the benefit of doubt and acquitted from the case but the same benefit was not given to the appellants; that all the acquitted co-accused fired except Shahbaz who was allegedly armed with .30 bore pistol; that two co-accused, namely, Liaqat and Zahid are Proclaimed Offenders; that Waqas accused/constable was let off by the police and was not even arrested; that case of the another co-accused Ishtiaq was separated to be tried by the learned Court of Session being a juvenile; that the version given by appellant Gulzar in his statement under section 342, Cr.P.C. (in reply to Question No.10) was more plausible and convincing; that no recovery was effected from Zulfiqar appellant; that the rifle was recovered from Gulzar appellant and according to the Fire-Arm Expert that was in the working condition; that no crime empty was sent to the Fire-Arm Expert; that in all there are three deceased persons and one injured while there are ten injuries; that the complainant had admitted during the cross- examination that Gulzar fired ten shots at the place of occurrence that eight persons had appeared before the Investigating Officer (P. W.18), that it was only Gulzar appellant who had fired at the spot; that no case is made out against Zulfiqar appellant; that no crime empty of .30 bore pistol was recovered from the spot which could connect him with the commission of the offence as .30 bore pistol was recovered from him; that he has falsely been involved in this case being cousin of Gulzar appellant; that there are mitigating circumstances warranting lesser sentence; that case of Zulfiqar appellant is that of acquittal; that the impugned judgment has been passed against the weight of evidence on record; that it is based on surmises and conjectures; that the prosecution has failed to prove its case against the appellants beyond reasonable doubts and that, in the afore-referred circumstances, the appellants are entitled to acquittal from this Court.
6. On the other hand, while defending the impugned judgment of conviction, learned counsel for the State submits that both the appellants are named in the promptly lodged F.I.R.; that apart from other evidence the injured has appeared as a star witness to corroborate the prosecution Case; that the ocular account is corroborated by the medical evidence; that non-recovery of .30 bore pistol from Zulfiqar appellant is of no consequence in favour of the said appellant; that the appellants are involved in a triple murder case not warranting lesser sentence; that appellant Gulzar remained absconder for a period of about ten months which is a corroborative piece of evidence against him; that since the prosecution has proved its case against the appellants beyond an iota of doubt, therefore, in the afore-referred circumstances the appeals filed by the appellants against the said judgment are liable to be dismissed.
7. We have heard learned counsel for the parties, have gone through the impugned judgment and the record with their able assistance and have also given exhaustive consideration to the arguments of the respective parties.
8. The occurrence in this case had taken place on 20-5-2002 at 11-00 a.m. In the District Courts Gujranwala in which three persons, named, Muhammad Shafique, Sultan and Irfan, lost their lives while one person, namely, Muhammad Ayub received injuries. Matter was reported to the police at 12-00 (noon) while the formal F.I.R. Was recorded at 12-10 p.m. On the same day. In all seventeen accused persons were named in the F.I.R. The prosecution produced two eyewitnesses, namely, Muhammad Sharif as P.W.16 and Muhammad Ayub as P.W.17. Complainant is real maternal uncle of all the three deceased persons who were real brothers inter se. Motive behind the present occurrence was that all the said three deceased had murdered the real brother of appellant Gulzar prior to the present occurrence but they were found innocent and were never arrested. So in order to take revenge,. Gulzar and Zulfiqar appellant and others committed the murder of the three deceased 'persons coupled with injuries to Ayub. Appellant Gulzar had admitted in his statement under section 342, Cr.P.C. About the motive and commission of the offence by him alone. So motive in this case is proved even from the mouth of the said appellant.
' On the same set of evidence eleven co-accused of the appellants, namely Muhammad Amin, Khalid, Muhammad Nadeem, Muhammad Shahbaz, Muhammad Ashraf, Khalil, Muhammad Jabbar, Muhammad Waris, Muhammad Saleem, Muhammad Siddique and Haleem were extended the benefit of doubt and have already been acquitted from the case. Two co-accused, namely, Liaqat and Zahid have been declared as Proclaimed Offenders. Waqas co-accused, who was alleged to have fired at the spot, was never arrested by the police because Sharif complainant admitted before the learned trial Court that later on he was satisfied that Waqas did not fire at the spot. Ishtiaq co- mei accused, according to the learned counsel for the appellants, was declared Juvenile, his case was separated but the learned counsel is not aware about the fate of the said trial. Then we are left with the case of the present appellants.
At first we would take the case of Gulzar appellant. He was present on official duty along with Waqas as both of them had brought some under trial prisoners. He admitted his guilt before the learned trial A Court to have committed the murder of three persons and of causing injuries to Ayub injured-P.W. Which is reflected in his statement recorded under section 342, Cr.P.C., wherein, in answer to Question No.10, he stated as under:- "I committed the murder of three deceased persons, namely, Irfan, Shafique and Sultan in a sudden and grave provocation without any premeditation. On the day of occurrence, I was on official duty to produce the some under-trial prisoners in the Court of Magistrate situated in District Courts.
When I reached in front of Court of Illaqa Magistrate, Muhammad Taseer Ahmad, the deceased persons were present there and when they saw they put their hands on the mustaches and said to me that they had murdered my brother and they will also murder me. They humiliated me by saying that being a police employee what have I done for the murder of my deceased brother Sultan. The deceased persons also abused me at the time of occurrence. Due to humilitation I lost my senses because words used by the deceased persons provoked me and I, in a sudden and grave provocation fired at the deceased persons with my service rifle which was with me at that time. The deceased received injuries and died at the spot. Waqas (let off accused) was also with me at that time. I committed the offence without any premeditation. I was alone at the time of occurrence. No other accused was present at the time of occurrence and also did not participate in the occurrence. All the other accused have been falsely involved in this case due to enmity and political rivalry. The other accused have also been involved in this case being related to me".
Narration of facts coupled with the evidence produced by the prosecution in support of the case and statement of Gulzar appellant recorded under section 342, Cr.P.C. Would show the manner in which he took lives of three deceased persons in the very callous, sensational and brutal manner.
Five crime empties of G-3 rifle were also recovered from the A coupled with recovery of G-3 rifle from the said appellant which likly connect him with the alleged commission of the offence. The currence in this case had taken place in the broad-daylight. He remained fugitive from law for almost ten months. Unfortunately, the Investigating Officer, either due to his dishonesty or negligence did not send crime empties to the Fire-Arm Expert. The rifle recovered from this appellant was found by the Fire-Arm Expert to be in the working condition. So far as case of Gulzar appellant is concerned, he was connected with the motive part of the occurrence which was admitted, ocular account was not only corroborated by the medical evidence but also from the recovery of crime empties and G-3 rifle. So, in our view, the prosecution has succeeded to prove the case against appellant Gulzar to the hilt. The manner in which the occurrence was committed is reflective of the fact that it was pre-planned and premeditated one, therefore, no question of mitigation arises to the extent of Gulzar appellant. Moreso, as that, ad admitted by him, he took revenge of his brother 's murder. He being a member of the disciplined knee should have been more vigilant and responsible as compared to the other members of the society. If members of the law-enforcing agencies would take the law into their own hands then there would be no peace and tranquillity in the society and the people would not feel secure even while guarded by the police officials. At the time of recruitment in the department, who function as law-enforcing agencies, utmost care and caution is required by the Appointing Authorities and the officials to be appointed must have been screened through tests not only physically but also psychologically coupled with scrutinization of their family background, criminal record and other secret corners of the life.
Unfortunately, due to lack of adoption of such-like measures, we are facing such-like situations.
Even otherwise, acquittal of eleven co-accused of the present appellants is of no avail so far as case of appellant Gulzar is concerned, especially when Criminal Appeal No.1343 of 2003 filed by the State against their acquittal was dismissed as not pressed vide order of a learned Division Bench of this Court dated 8-12-2003 passed by Mr. Justice M. Javed Buttar (as his Lordship then was) and Mr. Justice Muhammad Muzammal Khan. In Elahi Bakhsh v. Rab Nawaz and another (2002 SCM R 1842), it was observed as under:-- ........ It is well-settled by now that the maxim "falsies in Uno falsies in omnibus" has no universal application and it is bounded duty of the Court to sift the grain from the chaff. In this regard reference can be made to Khairu v. The State (1981 SCMR 1136).... " .
' The callous manner, in which he committed the occurrence and took lives of three persons, does not deserve any leniency. This is in line w the dictum laid down by the august Supreme Court of Pakistan in Muhammad Dilbar alias Muhammad Boota v. The State (2002 SCM R 1425), wherein, while concluding the judgment, the Hon'ble Court observed as under:-- "The brutal and atrocious manner in which the appellants killed deceased Muhammad Sarwar and caused severe injuries to the above mentioned P.Ws. Does not call for any leniency in the sentence.
Moreover, the learned trial Court as well as the learned Lahore High Court Lahore have elaborately discussed every aspect of the case and have dealt with the same in details, leaving no room for further consideration".
' In the said case of Dilbar (supra), there was only one murder while in the present case there are three deceased persons whose murder has even been admitted by the appellant Gulzar, therefore, present appellant Gulzar's case would be on the worst footings than that of the precedent case- law quoted above. After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against Gulzar appellant beyond any shadow of doubt. So, Criminal Appeal No.390-J of 2003 filed Gulzar appellant is dismissed in totality, his sentence of death is maintained on three counts and Murder Reference No.33-T of 2003 to his extent is answered in the affirmative.
So far as the case of appellant Zulfiqar is concerned, he had no motive to join hands with Gulzar appellant. He was allegedly armed with .30 bore pistol but no such crime empty was recovered from the spot. Even no pistol was recovered from him. He was arrested after 24 days of the occurrence. He was not attributed even a specific injury either to the deceased persons or to the injured. If Waqas was let off by the police, who was alleged to have fired at the spot, then why this Waqas cannot get the same benefit. Moreso when appellant Gulzar has himself said that he was alone who had made firing at the spot and murdered the deceased persons including injuries to a P.W. After having adjudged case to the extent as well we are of the affirmed view that his case is doubtful in nature. Resultantly, after having given benefit of doubt to Zulfiqar appellant, his Criminal Appeal No.2-J of 2004 is allowed, the impugned judgment to his extent is setaside and he shall be released forthwith if not required in any other case. Murder Reference to his extent is answered in the Negative and his sentence of death is not confirmed.