Tariq Shamim, J.--The appellant Muhammad Sarwar was tried in case F.I.R. No, 136 dated 20.2.2007, for offences under Sections 302 PPC read with Section 6/7 of the Anti-Terrorism Act, 1997 and Section 13 of Pakistan Arms Ordinance (No, XX of 1965) registered with Police Station Civil Lines, Gujranwala, by the learned Judge Anti-Terrorism Court-II, Gujranwala, who vide his judgment dated 20.3.2007 convicted the appellant under Section 302(b) PPC and sentenced hini'to death alongwith payment of Rs, 1,00,000/- as compensation to be paid to the legal heirs of the deceased or in default to undergo six months S.I. He was also convicted under 'Section 7(a) of the Anti- Terrorism Act, 1997, and was sentenced to death alongwith fine of Rs, 1,00,000/- or in default six months S.I. He was further convicted under Section 13 of the Arms Ordinance (No, XX of 1965) and was sentenced to suffer two years R.I. and fine of Rs, 10,000/- or in default to further undergo one month S.I.
2. Through this appeal, the appellant has challenged his aforesaid conviction and sentence awarded by the learned trial Court while the learned trial Court has also sent Capital Sentence Reference for confirmation of death. Both these matters are being decided together through this single judgment.
3.Brief facts of the case as narrated by the complainant Muhammad Ali Bajwa (PW-1) in F.I.R. Ex.
PA/3 are that on 20.2.2007 his sister Mst. Zil-e-Humman Usman, Provincial Minister, Social Welfare, Punjab on her official vehicle driven by Arif Hussain (PW-2) alongwith Muhammad Shabbir Baig Personal Staff Officer (given up PW) and Muhammad Asim Javed (PW-3) reached Muslim League House, Asghar Ali Road near Police Station Civil Lines, Gujranwala at 12:15 noon where a lot of persons including females were present for her reception. When the deceased entered the Muslim League House, a person who had covered himself with a chaddar emerged from the mob and started walking on her left side and after proceeding about 8/10 steps he fired at the head of the deceased with a .30 bore pistol who fell down smeared with blood. Muhammad Shabbir Baig, PW, tried to pick up Zil-e-Humma Usman. Arif Hussain, driver (PW-2) caught hold of the accused with the pistol and handed him over to the police. Muhammad Shabbir Baig and Asim Javed PWs immediately took Zil-e-Humma to Civil Hospital, Gujranwala. Later on, she was referred to Lahore where she died in General Hospital. The appellant was apprehended at the spot who disclosed his name as Muhamniad Sarwar.
4.On receipt of complaint Ex. PA signed by the complainant, Muhammad Nazeer ASI (PW-5) recorded F.I.R. No, 136/07 (Ex. PA/3). After investigation report under Section 173 was submitted and charge under Section 7(a) of the Anti-Terrorism Act, 1997, Section 302 PPC and Section 13 of Pakistan Arms Ordinance (No, XX. of 1965) was framed. The appellant pleaded not guilty and claimed himself to be innocent.
5.The prosecution produced as many as 15 witnesses. Amongst the prosecution witnesses Muhammad Ali Bajwa appeared as PW-1, he supported the story narrated in the F.I.R. Arif Hussain appeared as PW-2. Asim Javed as PW-3 and Muhammad llyas, ASI as PW-4 who furnished the ocular account and supported the prosecution case. Muhammad Nazeer ASI (PW-5) formulated the F.I.R. Ex. PA/3. Munir 1344/C, PW-6 deposited the parcel of blood stained earth in the office of Chemical Examiner and the parcels containing pistol and crime empty in the office of Forensic Science Laboratory which he had received from Muhammad Munir Head Constable No, 1991, PW-7.
Dr. Sohaila Nudrat Zaidi, Senior Demonstrator, Forensic Department, King Edward Medical University, Lahore, PW-8 on 20.2.2007 conducted post-mortem examination on the dead body of Zil-e- Humma Usman, deceased at 4.00 p.m. in Mayo Hospital, Lahore and found the following injuries:
1. A stitched wound 1 cm with two intact black stitches on the left temple region, 2.2. cm, above the left ear, 8 cm from the outer can thus of left eye.
2.2 cm long stitched wound in the right side from front temporal region, 8 cm above the right ear, 7 cm from the mid line, 8 cm from the outer can thus with five black stitches.
3.On the left wrist joint bluish area 1 cm x 2 cm with a reddish point in the centre.
4 A bluish area on the upper surface of right foot 10 x 6 cm in the middle.
5. 4 circular impression marks 3 x 1 cm at a distance of .5 cm from each other just below the left breast.
According to her opinion Injuries No, 1 and 2 were ante-mortem in nature and were caused by fire- arm weapon and leading to injury to skull and brain tissue, resulting in haemorrhage, coma and death. She prepared post-mortem examination report Ex. PE and diagrams Ex.PE/1. Dr. Shamoona DHQ Hospital, Gujranwala appeared as PW-9 and she stated that on 20.2.2007 at 12.20 p.m. Zil-e- Humman was brought to the hospital in injured condition and she was examined by her. She recorded the following injuries on her body:-- "Fire-arm lacerated wound of entry 3.4 cm x 1.5 cm with inverted margins, blackening was present, going deep on left temporal region, 2 cm above the left ear, 8 cm from the outer can thus of left eye, with corresponding wound of exit 2 cm x 1.5 cm with everted margins and brain matter was coming out in the right from temporal region, 8 cm above the right ear, 4 cm from the mid line, 8 cm from outer can-thus of right eye. According to her, the injuries were caused with fire-arm and she prepared Medico Legal Report No, 153/07, Ex. PF. Dr. Muhammad Anwar, Neuro Surgeon, General Hospital Lahore appeared as PW-13 and stated that on 20.2.2007 Zil-e-Humman was admitted in the hospital at 2:10 p.m. due to fire-arm injury to her head. She had two wounds (entry and exist) both temperoparietal junction. Brain matter was coming out from the wounds which were stitched. Her blood pressure was 60/409 upon arrival and her heart stopped at 2:35 p.m. She was declared dead at 2:50 pm. as she could not survive inspite of all efforts. He prepared report Ex. PK and also issued death certificate Ex. PK/1. Javed Iqbal, Constable appeared as PW-10 who was given the last worn clothes of the deceased which he handed over to Akbar Munir, S.I. Masood Ahmed Bhatti, Draftsman appeared as PVC-11, who prepared the site-plan and other relevant notes. Muhammad Ashraf appeared as PW-12, who identified the dead body of deceased Mst. Zil-e-Humman. Akbar Munk, S.I. who investigated the case appeared as PW14, Ghulam Muhammad, Inspector being Incharge of Investigation` appeared as PW-15.
6.The appellant in his statement under Section 342 Cr.P.C. pleaded innocence and stated that the deceased was hit by a blind bullet and as the police failed to apprehend the actual culprit, therefore, he was booked in the case. He also stated that he was not given opportunity to adduce his defence. However, the appellant neither opted to examine himself under Section 340(2) Cr.P.C. nor adduce any evidence in his defence at the trial.
7.The learned counsel for the appellant has contended that two of the witnesses i,e, PW-1 and PW- 3 are brother and cousin of the deceased and, therefore, their testimony cannot be relied upon without independent corroboration from some unimpeachable source; that the pistol allegedly recovered from the appellant has been planted by the police that the provisions of Section 7 of Anti-Terrorism Act, 1997 are not attracted to the facts and circumstances of the case and that since a motive has neither been set up by the prosecution nor any proved at the trial, therefore, the appellant is entitled to a lesser sentence as the same constitutes a mitigating circumstance.
8.The learned counsel representing the State has contended that the judgment of the learned trial Court is in consonance with law as the same is based on proper appreciation of evidence available on record; that the provisions of Section 7 ATA are fully attracted to the case and that keeping in view the independent evidence furnished by PW-2 and PW-4 the learned trial Court was legally justified in convicting the appellant.
9. We have heard the learned counsel and gone through the record.
10. After hearing the learned counsel and going through the record, we have noticed that the occurrence in the case had taken place in broad-day-light and the F.I.R. had been lodged promptly in which the appellant had been specifically nominated as the sole assailant who had committed the murder of Mst. Zil-e-Humman deceased. This obviously excludes the possibility of substitution or misidentification of the appellant who had been apprehended at the spot alone with the weapon of offence.
11.The eye-witness account in the case had been furnished by Muhammad Ali Bajwa (PW-1), Arif Hussain (PW-2), Muhammad Asim Javed (PW-3) and Muhammad Ilyas, ASI (PW-4). Muhammad Ali Bajwa (PW-1) deposed that on 20.2.2007 he had followed Mst. Zil-e-Humman (deceased) who was traveling in her official car being driven by Arif Hussain (PW-2). Muhammad Shabbir Baig, her personal staff officer as well as Asim Javed (PW-3) were in the car. They arrived at the Muslim League House, where the deceased being a Provincial Minister had to hold an open Kutchehry. The deceased alighted from the car and had hardly proceeded a few steps when the appellant who had covered himself with a Chaddar started walking along aside, her, pulled out a pistol and fired a shot at the left side of her head. Arif Hussain (PW-2), the driver of the car caught the appellant from behind, snatched the pistol from him and handed him over to Muhammad Ilyas, ASI (PW-4)
The witness proceeded to Police Station Civil Lines, Gujranwala and submitted application Ex. PA whereupon formal F.I.R. Ex.PA/1 was recorded. He had come to know at 2.50 p.m. that Mst. Zil-e- Humman had succumbed to the injuries at that hospital. The appellant after being apprehended disclosed his name as Muhammad Sarwar.
12.Arif Hussain (PW-3) deposed en the same lines as Muhammad Ali- Bajwa (PW-1), however, added that although the appellant had tried to fire a second shot but before he could do that, the witness had caught hold of him from behind and had snatched the pistol. The appellant and the pistol were handed over to Muhammad Ilyas, ASI (PW-4) by the said witness. The pistol was thereafter handed over to Akbar Munir, Sub-Inspector (PW-14) who unloaded the pistol and recovered 5 live cartridges. The pistol and the cartridges were sealed at the spot and secured vide recovery memo Ex. PB.
13.Muhammad Asim Javed PW-3, another eye-witness of the occurrence reiterated the facts as disclosed by PWs 1 and 2 and further deposed that the blood stained earth and the crime empty recovered from the spot were taken into possession by, Akbar Munir, sub-inspector (PW-14) who sealed the same into parcels in the presence of the witnesses. Muhammad Ilyas (PW-4) deposed on the same line as PW-3 and others.
14.Although PW-1 and PW-3 are the real brother and cousin of the deceased nevertheless, their testimony cannot be discarded on that score alone, particularly in wake of the fact that the said witnesses had no reason to falsely implicate the appellant in the case. The evidence adduced at the trial by PW-2, the driver of the car and PW-4, the incharge of police escort cannot be brushed 'aside as the said witnesses are natural witnesses whose presence at the spot at the relevant time cannot be doubted. Needless to state that the said witnesses are independent witnesses who had absolutely no reason to falsely implicate the appellant in the crime. There is nothing no record to even remotely suggest that the witnesses had any previous enmity with the appellant or had nursed a grudge against him in order to falsely involve him in the case. The ocular account furnished by the eye-witnesses is consistent as to the date, time and place of occurrence and the appellant's presence at the spot and his involvement in the murder of the deceased. The testimony furnished by the eye-witnesses has impressed us as being worthy of implicit reliance.
15.The plea raised by the defence of false implication of the appellant in the case by the police on account of previous cases has remained unsubstantiated which even otherwise does not appeal to reason. Further it has come out in the testimony of the witnesses that previously six criminal cases of similar nature had been registered against the appellant. The occurrence resulting in the murder of Mst. Zil-e-Humman is in line with the crimes committed by the appellant in the past which obviously suggest a behavioural pattern.
16.The medical evidence in the case had been furnished by Dr. Sohaila Nudrat Zaidi (PW-8) who had performed the autopsy on the dead body of the deceased Zil-e-Humman, Dr. Shamona W.M.O., DHQ Hospital Gujranwala (PW-9), who had first medically examined the deceased and Dr. Muhammad Anwar, Neuro Surgeon (PW-13), who had examined the deceased on her arrival at the General Hospital, Lahore. The medical evidence is consistent with the eye-witness account inasmuch as the date; time of occurrence, the weapon used in the occurrence and the locale of injury caused by the appellant as stated by the eye-witnesses has been confirmed by the medical evidence.
17.Reverting to the recovery of pistol .30 bore form the appellant, it has been vehemently argued by the learned counsel for the appellant that pistol P1 taken into possession vide recovery memo Ex.
PD was the same pistol which was used by the appellant in previous murder cases and had been planted by the police in the instant case. We are afraid the argument is devoid of any force inasmuch as the appellant was apprehended at the spot red handed with the weapon of offence.
The defence has failed to produce any evidence in support of the' argument at the trial. The testimony of the recovery witnesses, namely. Asim Javed (PW-3) and Akbar Munir, Sub-Inspector (PW-14) is credit worthy and fully supports the eye-witnesses account in all details. A crime empty P3 had also been taken into possession by the police from the spot which was made into a sealed parcel alongwith the pistol and dispatched to the Forensic Science Laboratory for comparison. The report received from the Laboratory Ex. PP was in the positive meaning thereby that the empty had been fired from the pistol recovered from the appellant. It is, therefore, manifest that the recovery of weapon from the appellant is credit worthy and deserves to be relied upon as a corroboration piece of evidence. Blood stained earth collected from the place of occurrence and sealed into a parcel was sent to the office of Chemical Examiner. The reports received from the Chemical Examiner as well as the Serologist Ex. PN and Ex. PO establish the place where the occurrence had taken place.
18.It has been vehemently argued by the learned counsel for the appellant that the motive for the occurrence was missing which not only created doubt about the veracity of the prosecution case but also entitled the appellant to a lesser sentence. We are afraid the argument has no force as absence of motive or failure of the prosecution to prove it does not effect the testimony of the witnesses which is worthy of reliance. The Honourable Supreme Court of Pakistan in the case of Khan Ali as Khani and another v. The State (2006 SCM R 1744) has observed: "It is settled law that absence of motive is no ground to award I E lesser punishment."
In the case of Moaz Shah v. Mohsin Shah and another (PLD 2001 SC 458) it was held by the Hon'ble Apex Court that weakness of motive or its absence might not be helpful to an accused when unimpeachable ocular evidence is available. In the instant case all the four eye-witnesses of the occurrence are consistent in their statements.
19. Another aspect which needs consideration is the applicability of the provisions of the Anti- Terrorism Act of 1997. The appellant committed the murder of a sitting Provincial Minister in broad- day-light, at a public place and in the presence of a number of persons from the public who had gathered at the place of occurrence to attend the open Kutchehry. The cold blooded murder of Zil- e-Humman had, without any doubt, created a sense of fear and insecurity as defined in Section 6 and punishable under Section 7 of the Anti-Terrorism Act of 1997.
20. The above discussion leads to an irresistible and un-escapable conclusion that the prosecution had succeeded in proving its case to the hilt against the appellant and, therefore, the learned trial Court was justified in convicting the appellant and awarding sentence of death under Section 302(b) PPC and Section 7(a) of the Anti-Terrorism Act, 1997 as well as two years under Section 13 of Pakistan Arms Ordinance (No, XX of 1965).
21.As a sequel to the above discussion, this appeal is dismissed and the conviction and sentence of the appellant recorded by the learned trial Court are upheld and maintained. Capital Sentence Reference No, 26-T-2007 is answered in the affirmative and the sentence of death passed by the learned trial Court against Muhammad Sarwar appellant is confirmed.