Mian Hamid Farooq, J.--This single judgment shall decide both the appeals (Cr.A. 459/2002 out of Cr.P. 23/2002 and Cr. A. 460/2002 out of Cr.P. 36/2002), as identical questions of law are involved in both the appeals and they have arisen out of the single judgment.
2. Both the afore-noted appeals, by leave of the Court, proceed against the single judgment dated 11.10.2001, whereby a learned Division Bench of the Lahore High Court, Lahore maintained the conviction and sentence of death awarded to Liaqat Ali and Shaukat Ali; death sentences of Haq Nawaz Khurram Nadeem All were altered to life imprisonment; compensation awarded to the legal heirs was also maintained and the criminal appeal challenging the acquittal of Rehmat Ali was dismissed.
3. Facts of the case and necessary details, relevant thereto, comprehensively capitulated in the leave granting order dated 6.11.2002, are reproduced below:- "2. The petitioners namely Liaqat Ali, Shaukat Ali, Haq Nawaz Khurram and Nadeem Ali in Criminal Petition Bearing No, 36 of 2002 were tried by learned Special Judge, Suppression of Terrorist Activities, Islamabad, under Sections 302, 148 and 149 PPC for committing the murder of Atif Mehboob and Rahim Dad and on conclusion whereof they all were convicted under Section 302(b)
PPC and sentenced to death on two counts with direction to pay compensation in tune of Rs, 50,000/- each on each count under Section 544-A Cr.P.C. to the legal heirs of the deceased and in case of default to suffer SI for six months each on each count by means of judgment dated 14.12.1999. Co-accused namely Rehmat Ali son of Muhammad Jan was acquitted. Being aggrieved the above named petitioners preferred a joint Criminal Appeal Bearing No, 300-D/1999 assailing their conviction and sentence awarded by the learned Special Judge, Suppression of Terrorist Activities, Islamabad. Muhammad Saeed (complainant) also filed criminal Appeal No, 306-T of 1999 under Section 417(2) Cr.P.C. against the acquittal of Rehmat Ali. The learned Division Bench vide judgment impugned maintained the conviction and sentence of death awarded to Liaqat Ali and Shaukat Ali whereas the death sentence awarded to Haq Nawaz Khurram and Nadeem Ali was altered to that of life imprisonment. The compensation awarded to the legal heirs of deceased was maintained. The criminal appeal challenging the acquittal of Rehmat Ali was dismissed.
3. Precisely stated the facts of the case, as contained in the FIR are that "Muhammad Saeed complainant resident of village Hamak in company of his brother Atif Mehboob shortly before the occurrence proceeded in Suzuki Bearing No, RIU 345 towards Swan Camp and while they, were on their way, Rahim Dad friend of Atif joined them and when reached at Swan road, the complainant alighted from the Suzuki to go to his land whereas Atif and Raheem Dad went to the nearby service station for service of the vehicle. However after a short while the complainant also came to the service station on foot and when at about 4 p.m. he reached near Kariana shop, suddenly Liaqat, Shaukat and Haq Nawaz Khurram sons of Muhammad Jan and Nadeem Ali son of Inam Ali resident of village Hamak and armed with .30 bore pistol, appeared at the service station. Rehmat raised lalkara to learn the lesson to Atif for raising constructions and simultaneously Liaqat fired which hit Atif on right shoulder. The second shot fired by Liaqat hit on the back of Atif Raheem Dad when interfered for the help of Atif, Khurram fired 3/4 successive shots with pistol at Raheem Dad as a result of which he sustained injuries on right hand arm and similarly Shaukat fired 3/4 successive shorts at Rahim Dad which hit on different parts of his body. Meanwhile, Liaqat and Shaukat fired from close range at Raheem Dad and Atif who succumbed to the injuries at the spot. The occurrence was witnesses by Ghazanfar Hussain and Ch. Ijaz Ahmad who were also present with their vehicle at the service station. The motive behind the occurrence was that the complainant having owned land on the GT road started construction and the accused claiming their possession of the land demanded the complainant party not to raise the construction". The petitioners were apprehended and sent up for trial, on conclusion whereof they were convicted and sentenced as per details mentioned hereinabove, hence this petition".
4. This Court on 6.11.2002 after hearing the learned counsel of both sides and recording their respective contentions granted leave to appeal to consider their contentions and to reappraise the entire evidence on record. Relevant portion of leave granting order reads as follow:--
5. "4. Mian Aftab Farrukh, learned Sr. ASC on behalf of petitioners while arguing the Criminal Petition for leave to. Appeal Bearing No, 36 of 2002, inter alia, contended as follows:--
(i) The entire evidence has not been examined vigilantly and in its true perspective which resulted in serious miscarriage of justice
(ii) The FIR was got lodged with delay for which no plausible justification could, be furnished and, therefore, the possibility of deliberation, dishonest exaggeration and consultation cannot be ruled out but the learned Division Bench has failed to examine the factum of delay, benefit whereof should have been given to the petitioners.
(iii)Petitioner namely Haq Nawaz Khurram being not adult could not have been convicted and sentenced under Section 302 PPC whose case squarely falls within the ambit of provisions as contained in Section 308 PPC.
(iv) The learned Division Bench has erred while relying entirely on the statements of interested witnesses and ignoring the defence version completely which was to be kept in juxtaposition.
(v) In view of the conclusion of learned Division Bench that it was not a premeditated murder the sentence of death could not have been awarded which aspect of the matter escaped notice causing serious prejudice.
(vi) The plea of grave and sudden provocation should have been considered in the prevalent circumstances in view of the failure of the prosecution to prove the alleged motive.
(vii) Mian Aftab Faruukh, learned Sr. ASC has placed reliance on the following authorities:-- -- Ashiq v. The State (1993 SCM R 417). -- Allah Wadhayo u. The State (2001 SCM R 25).
5. Sardar Muhammad Ishaq Khan, learned Sr. ASC entered appearance on behalf of petitioner in Criminal Petition Bearing No, 23 of 2002 and, inter alia, contended as follows:--
(a) The death sentence could not have been altered to that of life imprisonment in the absence of mitigating circumstances.
(b) The death sentence could not have been altered to that of life imprisonment as it was not a case of individual liability but vicarious liability which has been proved beyond the shadow doubt.
(c) The learned Division Bench has ignored the manner in which the occurrence had taken place as all the accused came from distant places duly armed with fire-arms and killed the deceased persons in merciless and brutal manner and in view of the prevalent circumstances of the case the question of individual liability does not arise.
(d)Rehmat Ali (co-accused) had played an active role and not only facilitate the commission of offence but also abetted which aspect of the matter escaped notice resulting his acquittal which is not justified as prosecution has established his case by producing cogent and concrete evidence.
(e)Sardar Muhammad Ishaq Khan, learned Sr. ASC has relied the following authorities:-- Shaheb Ali v. State (PLD 1970 SC 447). Sarfraz v. State (2000 SCM R 1758).
Nawaz Ali v. State (2001 SCM R 726).
6. We have carefully examined the contentions as agitated on behalf of the complainant in the light of relevant provisions of law and record of the case. The entire evidence has been scanned with the eminent assistance of learned counsel. The above mentioned contentions need consideration which cannot be made without reappraisal of the entire evidence. We are, therefore, inclined to grant leave in Criminal Petition for leave to appeal Bearing No, 36 of 2002 and in Criminal petition for leave to appeal Bearing No, 23 of 2002 which are converted into appeal and to be fixed for hearing at some early date.
7. It is, however, to be noted at this juncture that the findings arrived at by the learned trial and appellate Courts regarding Rehmat Ali (co-accused) being well based and in accordance with settle norms of justice hardly calls for any interference and leave to appeal is refused upto his extent in Criminal Petition for leave to appeal Bearing No, 23 of 2002".
5. Mian Aftab Farrukh, learned Sr. ASC for the appellant (in Criminal Appeal No, 460 of 2002) has raised the following contentions:--
(i) Defence plea raised by Liaqat Ali was his first version and urged at the earliest opportunity as is evident from the statements of PW-4 (Ghulam Muhammad Baqir) and PW-16 (Raja Muhammad Saeed) and supported by the notables of the locality.
(ii) Motive projected by the prosecution viz there was a dispute over a piece of land situated at G.T.
Road between the complainant party, who started construction thereupon, and the accused, who forcefully wanted to occupy the same, was disbelieved by the High Court.
(iii) Learned High Court after disbelieving the defence version has erred in law while overlooking that the prosecution failed to prove the case against the appellant beyond any shadow of doubt.
(iv) Learned High Court has erred in law by not accepting the defence version in favour of the accused.
(v) Learned High Court has neither accepted the prosecution version nor rejected the defence version and did not appreciate that the very sight of the deceased at the place of accused in the above background would fall within the meaning of 'grave and sudden provocation'', therefore, nature of offence and the sentence should have been altered.
(vi) As regards the other appellants, learned counsel states that their sentences may be ordered to run concurrently.
(vii) Learned counsel has relied upon Ashiq Hussain v. The State (1993 SCM R 417), Ansar Ahmad Khan Barki v. The State and another (1993 SCM R 1660) and Muhammad Khan v. Muhammad Bashir (2003 SCM R 427).
6. Sardar Muhammad Ishaq, learned Sr. ASC for the appellant (in Criminal Appeal No, 459 of 2002) submits that defence plea of Liaqat Ali is not believable, provocation has not been proved through evidence on record and no report regarding teasing of his daughters was ever lodged. His further plea is that admittedly complainant side was not armed and, therefore, the plea of Liaqat Ali proved false. He has further submitted that fourteen empties were recovered from the spot, which were sent to Forensic Science Laboratory and according to its report three empties matched with the pistol of Haq Nawaz Khurram, three empties matched with the pistol of Nadeem Ali and four empties matched with the pistol of Liaqat Ali, while remaining four empties did not match with any of the arms of the accused as no pistol could be recovered from Shaukat Ali. His next contention is that FIR was promptly lodged, roles were specifically attributed to all the accused and they were named in the FIR. He has relied upon the cases of Shaheb Ali v. The State (PLD 1970 SC 447) and Nawaz Ali and another v. The State (2001 SCM R 726). He has further submitted that entire occurrence from the beginning to end is clear, nothing is shrouded in mystery and lack or disproving of motive is not a mitigating circumstance. He has relied upon Syed Hamid Mukhtar Shah u. Muhammad Azam and 2 others (2005 SCM R 427).
7. We have heard the learned counsel for the parties and examined the available record. Firstly, coming to the defence plea of Liaqat Ali recorded under Section 342 Cr.P.C, The answer to Question No, 13, in which Liaqat Ali pleaded dis defence, reads as follow:-- "Q.13. Why this case against you and why the PWs have deposed against you? Ans: Note:--The accused wants to make the statement on oath of Holy Quran and he is holding a copy of Holy Quraan in his hand and has recited Kalma Tayyiba. Order: The statement of the accused is being recorded under Section 342 Cr.P.C. and it is not the requirement of law that the accused should make the statement on the oath of Holy Quraan. This practice has been discouraged by the Superior Courts on many occasions. The accused is at liberty to make the statement which ever he likes.
Both Atif and Raheem Dad deceased persons of this case used to tease my daughters Saima and Saiqa. Prior to the occurrence on one occasion both the deceased persons had scaled over the wall of my house and I had put a barrier in the start of the street outside my house. On the day of occurrence both the deceased persons came together at my service station and both the deceased persons exhorted that they had come to tease me "Langra" a lesson for putting the barrier. I. was having my licensed pistol with me. I fired at both Atif and Rahim Dad and they fell down. I reloaded the magazine of my pistol and fired one shot each on their temporal region. I then left for my home. No other accused was with me and I was alone at the time of occurrence".
Admittedly, the defence did not produce any witness in support of defence version of Liaqat Ali as noted above. It is true that PW-16 (Raja Muhammad Saleem) in his cross-examination has stated that it is correct that Liaqat Ali accused made a statement before the first I.O. that he alone killed both the deceased as they used to tease his daughter" but it is equally true that his defence plea stands falsified on number of grounds; firstly, the sustaining of injuries by the deceased in the occurrence with the fire-arms is admitted and supported by medical evidence; secondly, although it has been stated by Liaqat Ali in his statement that prior to the occurrence both the deceased persons scaled over the wall of his house and he put a barrier in the start of the street outside his house, yet admittedly the alleged incident was neither reported to the police nor to any other agency and the defence did not lead any evidence to prove the said incident; thirdly, fourteen empties were recovered from the place of occurrence, out of which ten empties matched with the pistols recovered from Liaqat Ali, Haq Nawaz Khurram and Nadeem Ali, however, rest of the four empties could not be matched with any of the pistols as no pistol was recovered from Shaukat Ali; fourthly, recovery of pistols from Liaqat Ali, Haq Nawaz Khurram and Nadeem Ali, was established from direct evidence; fifthly, according to the version of Liaqat Ali, on the day of occurrence both the deceased persons came together at the service station and exhorted that they had come to teach a lesson for putting the barrier, however, even according to his stance the deceased were not armed with any weapon and they were empty handed, had there been any grudge and intention of attacking Liaqat Ali, they would have equipped with deadly weapons; sixthly, the recovery and matching of empties with three pistols recovered from Liaqat Ali, Haq Nawaz Khurram and Nadeem Ali, does not coincide with the later part of statement of Liaqat Ali, who 'stated that he singly fired at both Atif and Raheem Dad, they fell down, he reloaded the gun and fired one shot each on their temporal region; seventhly, the number and dimensions of injuries are different which tend to show that they were fired by more than one persons and with different weapons and not with the pistol of Liaqat Ali and lastly the report of Forensic Science Laboratory is in positive.
Although the learned High Court has disbelieved the motive for the occurrence lodged by the prosecution i,e, the dispute of land and also defence version as projected by Liaqat Ali in his statement under. Section 342 Cr.P.C. yet we feel that the findings of the learned High Court that the accused party because of grudge against the deceased on any of the two motives attacked Atif and Raheem Dad in presence of eye-witnesses namely, (Ch. Muhammad Saeed) PW-11 and (Ejaz Ahmed) PW-12 are apt to the circumstances of the case and supported by evidence on record. It appears appropriate to reproduce relevant portion of the judgment, which reads as follow: "The perusal of defence version would show that Liaqat Ali appellant because of the conduct of the deceased having developed hatered against them was revengeful and decided to teach lesson to the deceased and in consequence thereto Liaqat Ali was the help of his co-accused with preparation attacked on the deceased at service station. The admission of Liaqat Ali through the defence version which as such is not permissible would confess the story of FIR and provide corroboration to the prosecution case. We therefore having scrutinized the evidence have found the view that prosecution as well as defence has not brought on record the true facts relating to the motive behind the occurrence' and the immediate cause of the fateful incident. It appears that the accused party because of the grudge against the deceased either for their objectionable conduct or in connection with the dispute of land attacked on Atif deceased and Rahim Dad on intervention also sustained injury. The eye-witnesses namely Ch. Muhammad Saeed and Ijaz Ahmad although are related to the deceased but their presence at the service station on the G.T. road which is public place was neither objectionable nor they would be the chance witnesses".
8. Now adverting to the question as to whether the prosecution has been able to prove the case against the appellants. The prosecution produced sixteen witnesses including two eye-witnesses.
During investigation the pistols were recovered at the pointation of Liaqat Ali from his house in the presence of witnesses, Safdar Hussain (PW-13) recovered .30 bore pistol from Kacha path in the area of Mohra Kalu at the instance of accused, which was taken into possession and similarly Nadeem Ali got recovered .30 bore pistol which was also taken into possession. Dr. Muhammad Arshad appeared as PW-10 and produced post-mortem reports of Atif and Raheem Dad giving the description of external and internal injuries. In his opinion the injuries were due to fire-arm, ante- mortem and are sufficient to cause death in ordinary course of nature. X-Rays were also taken during postmortem. Fourteen empties were recovered from the spot out of which, according to the report of Forensic Science Laboratory ten matched with the three pistols recovered from three accused. The eye-witnesses are reliable, their presence at the service station is not objectionable and they have sufficiently explained the purpose of their presence at the service station. They have supported the prosecution story and despite cross-examination their veracity could not be impeached. The learned High Court has rightly held that "there was ample evidence in the form of ocular account, the medical evidence and the recoveries of the crime empties and the weapon of offence to connect the appellants with the commission of offence". Thus, in view of the evidence on record, thoroughly examined by us with the able assistance of both the learned counsel, and overhauled by learned High Court we have no doubt in our mind that the prosecution has been able to prove his case beyond any shadow of doubt against the appellants.
9. Now reverting to the plea of the learned counsel regarding absence/disproving of motive. Suffice it to say that lack of motive or inability of prosecution to prove motive does not effect the imposition of normal penalty of death if the prosecution otherwise has been able to prove his case against the accused. Reference in this behalf can be made to Nawaz Ali and another (ibid). The view of this Court in the judgments reported as Ashfaq Ahmad v. The State (2007 SCM R 641), Federal Government Ministry of Defence v. Sepoy Liaqat Ali (2004 SCM R 1676), and Syed Hamid Mukhtar Shah (ibid) is that lenient view should not be taken merely on the ground that the motive had not been proved by the prosecution.. In another recent judgment reported as Mst. Nazakat v.
Hazrat Jamal and another (PLD 2007 SC 453), this Court has held that "motive shrouded in mystery" by itself is not a mitigating circumstance for awarding lesser sentence and this theory has been discarded. In the same context the cases of Mukhtar Ahmad and others v. The State (PLD 2004 SC 563), and Khurrm Malik and others v. The State and others (PLD 2006 SC 354) can be referred. In view of the enormous case law on the subject, the contention of the learned counsel is ill-founded.
10. Now coming to the case of Haq Nawaz Khurram and Nadeem Ali, about whom the complainant, through the connected appeal (Cr. A. 459/2002), has prayed for enhancement of their sentences.
The learned High Court has rightly distinguished the cases of Haq Nawaz Khurram and Nadeem on the ground that the injuries attributed to them were not fatal individually and further they most probably being the son and nephew of Liaqat Ali acted at his instance and under his influence. We are not persuaded to take a contrary view than of the High Court. We feel that under the circumstances and in view of the findings of the learned High Court the sentences of Haq Nawaz Khurram and Nadeem Ali were rightly reduced from death sentences to life imprisonment. There is no legal ground to enhance their sentences, however, we are inclined to hold that the sentences awarded to them shall run concurrently.
11. In the above perspective, we are of the firm view that the judgment rendered by the learned High Court does not suffer from any legal infirmity and it is perfectly justified and sustainable in law in view of evidence on record and law on the subject. Thus the impugned judgment is maintained subject to modification that the sentences awarded to Haq Nawaz Khurram and Nadeem Ali shall run concurrently.
12.For the foregoing reasons, both the appeals are devoid of merits and stand dismissed subject to the modification as noted above.