Zubda-tul-Hussain, J.--The appellant, Ikramullah, along with five co-accused was tried by the learned Judge, Anti-Terrorism Court-II, Gujranwala, in complaint case under Sections 302/449/148/149 PPC, Section 7 of the Anti-Terrorism Act, 1997 and Sections 3/4 of the Explosives Substances Act, 1908. At the conclusion of the trial the five co-accused, namely, Abdullah, Shana, Umar Hayat, Muhammad Khan and Nasarullah, were acquitted while the appellant, Ikramullah, was convicted and sentenced as under:--
(i) U/S. 449 PPC 10 years R.I. along with a fine of Rs, 50,000/-and in case of default to further undergo simple imprisonment for one month.
(ii) U/S. 4 of the. Explosives Substances Act, 1908, 10 years R.I. and a fine of-Rs, 50,000/-, failing which to further undergo one month S.I.
(iii) U/S. 7(a) of the Anti-Terrorism Act, 1997, death penalty.
2. The occurrence of death of one Muhammad Nazir, father of the complainant, was originally reported at the Police Station, Qadirabad, District Mandi Bahauddin for which the First Information Report No, 245 was registered on 21.5.2006,at 12.05 a.m. under Sections 302, 449, 148/149 PPC and Section 7 of the Anti-Terrorism Act, 1997. Subsequently during the Investigation on 28.6.2006 the offence under Sections 3/4 of the Explosives Substances Act, 1908 was also added. The occurrence allegedly took place at 10.30 p.m. which according to the complainant Ikramullah S/o Muhammad Nazir deceased had its inception in a dispute of a house between Muhammad Nazir deceased and Ikramullah S/o Abdullah since the year 1993. Ikramullah S/o Abdullak one of the accused in this case, had also got registered a case against illegal possession of the deceased over his house which, however, was dismissed. As per the complainant a few days prior to the occurrence Muhammad Ikramullah and his co-accused had asked the deceased to vacate the house otherwise they shall destroy the house and also make him an example for the people around. At 10.30 p.m. while the electric bulb and other lights were on in the Courtyard of the house as well as on the roof of the upper storey (chowbara) that Ikramullah S/o Abdullah holding a grenade in his hand, Shana S/o Muhammad, Umar Hayat S/o Ahmed, Muhammad Khan S/o Salehoon, Nasarullah S/o Ahmed and two unknown persons, all equipped with fire-arms along with Abdullah i,e, father of Muhammad Ikramullah who was empty handed, in furtherance of common object entered the house of the deceased enroute the roof of the house of a neighbour namely Ahmed S/o Saeed and then came at the roof of house of the deceased. All the accused raised a galkara' that they had come to destroy the house and to finish Muhammad Nazir and if anybody tried to intercept he shall be murdered. Then the said Abdullah gave command to his son Ikramullah to accomplish his assignment whereupon Ikramullah accused threw the hand grenade near the cost of Muhammad Nazir deceased. The grenade on blasting broke the roof making a hole. The fragments of the grenade spread over the roof as well as beneath the ceiling on the eastern wall of the chowbara.
Over the roof Muhammad Nazir fell prey to the blast of grenade and received the burns and injuries because of which he died at the spot. It was stated that the blast caused terror and harassment in whole of the village. The occurrence was allegedly witnessed by the complainant's brother Hamid Abbas and one Mukhtar Ahmed.
3. During the investigation the accused were found innocent. Dissatisfied with the proceedings of the investigation the complainant Ikramullah, son of the deceased, filed a private complaint which was entertained and tried by the learned Special Judge, Anti-Terrorism Court, Gujranwala. The private complaint was of course based on the same facts as embodied in the FIR, the only difference being that in the private complaint the complainant also gave details of the litigation and previous enmity between the deceased and the accused Ikramullah S/o Abdullah. After the trial the learned Special Judge convicted Ikramullah S/o Abdullah for the offences and with the sentence already mentioned above while rest of the accused were acquitted of the charge.
4. Primarily concentrating upon the ocular account of the case consisting of the statements of the complainant Ikramullah and his brother Hamid Abbas who respectively appeared as P.W.7 and P.W.8, the prosecution developed the case on corroboration by medical evidence in the form of post-mortem report (Ex.P.C.) which it endeavoured to prove by producing Dr. Muhammad Iqbal, Senior Medical Officer, THQ Hospital, Phalia, District Mandi Bahauddin as P.W.6. The recoveries of the blood-stained earth, seven pieces of hand grenade, a chadar, pillow and broken 'hukka' etc. were substantiated through the relevant witnesses of the recovery memos. Ex.P.B., Ex.P.Q and Ex.P.R. The report of the Chemical Examiner and of the Serologist were tendered in evidence by the learned Prosecutor as Ex.PT and Ex.P.U. The evidence regarding the possession of the blood-stained clothes of the deceased has been placed on record as Ex.P.A. To establish the chain of various events of investigation produced various police officials, who had performed certain formal functions, Gulzar Ahmed, Draftsman, who had drawn the scaled site-plan and Syed,Inayat Hussain, S.I. In addition to these P.Ws. Syed Hasnat Hussain, S.I. who had conducted the investigation of the case on the basis of the FIR was examined as C.W. who had given the resume of the various measures undertaken by him during the investigation culminating in the findings recorded by him in relation to the occurrence.
5. In their statements under Section 342 Cr.P.0 the accused stated that they had been falsely implicated in this case due to previous enmity. The deceased had illegally occupied the house of father of the complainant for which a criminal case was got registered by him against the deceased and in the same perspective the parties had been litigating by means of writ petitions as well. At one stage arbitration was also arranged which had resulted in a finding against Muhammad Nazir and for the implementation of the award of the arbitrator Muhammad Nazir deceased delivered three cheques and offered to pay Rs, 200,000/- along with disputed house including all its belongings. It was specifically stated that Muhammad Nazir deceased was having a long history of involvement in criminal cases. A list of these cases was also placed on record as Ex.C.W.1/3. Muhammad Nazir was a Basta Alif Badmash and his name was entered in Register No, 10 of the police station. On a number of occasions he had been declared as Ghunda under Sections 13 and 14 of the Ghunda Act. Besides being a proclaimed offender in a case under Martial Law Regulations registered at Police Station, Kuthiala Sheikhan he was involved in different types of cases like theft, illicit arms, stolen property, intoxication, attempt to murder, police encounter etc. etc. and was a symbol of terror in whole area where none could come in front of his house during night time.
6. As to the blast of the grenade it was stated by the accused that Muhammad Nazir deceased used to keep hand grenade with him and for this purpose he was having a special belt. It was due to some mistake on his part that his own hand grenade exploded and in consequence his death was caused but because of the long standing enmity his sons pasted the occurrence on the accused.
7. The learned counsel for the appellant at the very outset referred to the site-plan Ex.P.B. in the context of the statement of the eye-witnesses, namely, Ikramullah, P.W.7 and P.W.8 as well as notes and the details 'given by the draftsman, Gulzar Ahmed, as P.W.S. The contention of the learned counsel in this behalf was that by virtue of the ocular account as well as the sketch site-plan (Ex.P.B.) the very position of the deceased, the P.Ws. the accused and the point where the hand grenade blasted manifestly shows that not only the appellant, Ikramullah, was falsely implicated in this case but the P.Ws. were also not eye-witnesses of the occurrence. According to the learned counsel, it was an un-witnessed occurrence. He referred to the distances of the positions shown regarding the presence of the accused-appellant and the P.Ws. and asserted that keeping in view the nature of the explosive and the blast it was absolutely impossible for the accused-appellant as well as the P.Ws. to go uninjured by the explosion of the hand grenade. The learned counsel stated that a standard grenade contains 48 pieces which on explosion spread in all directions and the kill-zone of the pieces is five meters radious whereas its fragments fly upto 230 meters around the place of explosion. The blast of hand grenade also emits gun powder which causes burns by high power discharge. The complainant was stated to be at a distance of about 50 feet from the point of blast and similarly the accused was at a distance of 12 feet from the place where the grenade blasted. He was thus of the view that neither the accused nor the P.Ws. having received any burns or scratches or injuries, the prosecution story is scientifically inadmissible and the only conclusion that could be drawn was that at the time of the explosion of the hand grenade the deceased alone was present on the roof. The hand grenade possessed by himself went off for a mistake on his part or for any other reason which caused burns and injuries on his person resulting in his death as well as damage to the roof of the house.
8. The learned counsel then referred to the statement of the I.O. (C.W.1) who had stated that he had not indicated the existence/ availability of the electric bulb nor he took into possession any such bulb as an evidence for the electric bulb at the place of occurrence. What the learned counsel wanted to infer was that there was no chance of identification of the accused in the absence of any proper arrangement of the light. The learned counsel further pointed out that according to the statements of the eye-witnesses, namely, P.W.7 and P.W.8 at the time of occurrence they were in the Courtyard while the deceased was on the roof and that being so it was not possible for them to witness the occurrence as claimed by them. It was thus concluded by him that it was an un- witnessed occurrence. In the same context much was also stated regarding the antecedents of the deceased who was allegedly involved in a variety of criminal activities and also had established enmities with a number of people. As to the quality of evidence of the P.Ws. 7 and 8 the learned counsel tried to establish that as they were inimical towards the accused and being son of the deceased were interested witnesses their evidence could be relied upon only and only if independent corroboration was also available on record.
9. The learned DPG and the learned counsel for the complainant also dilated upon the history of enmity between the parties to establish the veracity of the motive and the purpose of the attack by the accused on the person and property of the deceased. They stated that the long standing enmity cannot and has not been denied by the accused. The objective of the attack was aptly given in the FIR as well as the complaint. According to them the attack on the part of the accused was aimed at not only to cause the murder of Muhammad Nazir but also to damage and destroy the house. It was, according to them, for this reason that the accused opted for an assault by explosive substance instead of traditional armament. In reply to the argument of the learned counsel for the defence that there is no evidence either of the Chemical Examiner or the Serologist regarding the nature of the iron pieces sent to them for analysis, they referred to the statement of Dr. Muhammad Iqbal, P.W.6 wherein he deposed that all the injuries on the person of the deceased were caused by some explosive material. They alleged that the police being in league with the accused had conducted bad investigation and for that reason did not collect any pieces of the grenade from inside the room down the roof where the blast was caused. Regarding the contention that the deceased being a person of notorious antecedents and always being in possession of armaments and the explosives, the explosion was caused by a substance which was in his own possession, they argued that had the grenade or any other explosive substance exploded in the custody of the deceased it would have smashed his body into pieces instead of only causing injuries on the right upper part of his body. Similarly if it had exploded 'in his hands, the deceased would have totally lost his hands or would have received serious injuries on the hands.
They argued that P.W.7 and P.W.8 both being the sons of the deceased and it being a night time their presence in the house was not only natural but also undeniable. According to them, it was also quite natural for them to be around their father who was smoking the Hukka at the relevant time. It was finally argued that the occurrence, its time and place and serious enmity of the accused with the deceased are not denied which is an important factor to establish the guilt of the accused especially when the same is supported by the direct consistent and coherent evidence of the two natural witnesses.
10.The ably canvassed argument of the learned counsel based upon the alleged scientific details in the first instance of course attracted the attention and the concentration but this agreement may not be the whole truth. The mechanism of the hand grenade as such cannot be denied. It cannot be disputed that when it exploded the pieces of the grenade must spread in all the directions around the point of blast. It also cannot be denied that to whatever range the pieces traveled the velocity thereof is shown to have a damaging zone. But at the same time it also cannot be denied that like any other explosive element the hand grenade also are of different make, different specifications and variable effects. The well designed hand grenade manufactured by advance technology and prepared for causing extensive damage on explosion shall have an effect different from the hand grenade which is locally manufactured or is not manufactured with advance technology. The kill zone of a hand grenade mentioned by the learned counsel for the defence himself is five meters radius. The evidence on record shows that the P.Ws. were at a distance of about 50 feet from the point of blast. There was, therefore, little possibility of any burning or injury on their bodies. Secondly it is an admitted fact that the blast has caused a hole in the roof because of which the part of the grenade also fell down in the room. This also was to minimize the damaging effect and the velocity of the pieces over the roof. So far as the accused is concerned he was of course in the know of the things and, therefore, it cannot be margined that he would not have taken necessary method and measures to save himself or to escape from being a target of pieces of the grenade. This is what should be the normal human attitude and behaviour of an assailant who intends to target his enemy with a hand grenade. Therefore, to say that the mere fact that neither the accused nor the P.Ws. were injured in the occurrence is sufficient to show that the occurrence had not been committed, by the accused nor witnessed by the P.Ws., is not a proper inference.
11.The attack on the ocular testimony of the P.Ws.7 and P.W.8 with reference to their averments as to their presence in the Courtyard also is not sufficient to belie the prosecution. A great deal of emphasis has been placed on the statement of P.W.7 that on the day of occurrence they were present in their house at the ground floor while the deceased was on the rooftop of the first floor but the referred statement does not essentially mean that right at the time of occurrence also P.W.s were on the ground floor. What the P.W.7 said was the "day" and not the "time" of occurrence.
It was not abnormal thing that in ordinary course the deceased used to be on the roof at the night time while the other family members at the ground floor but this does not exclude the presence of the P.Ws. on the roof at the time of occurrence because the deceased was their father and it was just natural for them to be around him at any moment.
12.The route of the approach of the accused to the place of the deceased has been mentioned as the house and roof of the house of one Ahmed S/o Saeed who is in the neighbourhood of the place of occurrence. D.W.1 was produced to exclude the possibility of access of the accused to the place of the deceased from that direction. The witness had stated that nobody entered his house or proceeded to the place of occurrence from his house. There is one possibility of approaching to the place of occurrence through the Courtyard and house of D.W.1 who claimed to be present in his house but if, as observed even by the learned trial Court, someone climbed over the roof of the house of D.W.1 even then there was an easy route for him to arrive at the place of occurrence.
Hence, the very evidence of D.W.1 shall not be sufficient to disprove the prosecution regarding the mode and the route of attack adopted by the assailants.
13.The learned defence counsel finally argued that there were as many as eight accused but on the same set of evidence all except the appellant were acquitted of the charge by the learned trial Court. This, according to the learned counsel, was a damaging element for the prosecution evidence because if it was not believed in relation to the acquitted accused it could also not be safely relied upon for recording sentence of conviction on the appellant.
14.It is true that all the co-accused of the appellant have been acquitted by the learned trial Court while the evidence against all of them was the same that is the ocular account given by P.W.7 and P.W.8 but it cannot be denied that the principle of sifting the grain from the chaff is duly recognized by the criminal jurisprudence prevalent in our country. When the circumstances are jumbled up or the situation otherwise is not clear, to establish that there is a need to discover the truth, the Courts are well within their domain to draw an inference and determine the liability of real culprits on the principle of sifting the grain from chaff. Tawaib Khan and another u. The State (PLD 1970 SC 13) and Shahid Raza and another u. The State and another (1992 SCM R 1647) are relied upon.
15.For all that has been discussed above we are convinced that the prosecution has established its case against the appellant through direct, cogent and coherent evidence of the eye-witnesses which is duly corroborated by the circumstances including the medical evidence. The learned trial Court, therefore, rightly recorded the sentence of conviction against the appellant.
16.Ultimately, though without conceding, the learned counsel also pleaded that the deceased was a person of established ill repute his antecedents were openly known to every body around him. The whole village was fed up with him. Even the police had a watchful eye on him activities. He was a known criminal and scoundrel of the first order dealing with the offences like theft, illicit arms, stolen property, intoxication, attempt to murder, police encounter etc. etc. He had also a serious dispute of possession of the house with the appellant and his father. He had, according to the appellant, taken forcible possession of the house and was not at all prepared to restore the same to the original owner i,e, the appellant's family. He also entangled the appellant and his family in a number of civil and criminal cases and had thus pushed them to the wall by making their life miserable and unbearable. He was such a desperate person that he threw the appellant into utter frustration where he was forced to feel that the co-existence of complainant's family with the deceased was only a curse. In the circumstances not out of enmity but out of sheer frustration and helplessness the appellant might have adverted to the alleged occurrence which inference is further strengthened by the fact that instead of simply putting an end to the life of the deceased a successful attempt was also made to destroy the very house which was the cause of pain, agony beside humiliation in the society. And if that be the situation it becomes a mitigating circumstance enough to justify the removal of gallows from the neck of the appellant by subjecting him to lesser punishment.
17. We have given our anxious consideration to the ultimate argument of the learned counsel regarding the mitigating circumstances. It can hardly be denied that the deceased was a notorious person. He was involved in a large number of criminal cases. The dispute regarding the house is not denied. When the ownership is claimed by the appellant or his father and the deceased by virtue of the position he had established about himself had made it impossible for them to restore their honour in the rural society where the grabbing of one's property is an insult for the deprived individual, the options for the appellant's family stood minimized. It is on record that the legal course of registration of criminal case for the possession of the house adopted by the appellant also ended in fiasco. These circumstances could be sufficient to cause sheer frustration to the accused appellant and make him a desperate person. In the case of Mushtaq Ahmed v. The State (PLJ 2004 SC 150) where the deceased was involved in 5/6 criminal cases which were still pending and he was a man of questionable character, it was held to be a sufficient extenuating circumstance in favour of the accused and the sentence of death was reduced to imprisonment for life by the Hon'ble Supreme Court of Pakistan. The record of the case before us reveals that the deceased herein was much ahead of the position insofar as the involvement in criminal cases and accusation of offences .like theft, illicit arms, stolen property, intoxication, attempt to murder, police encounter etc. etc. is concerned. For all these circumstances we are, therefore, convinced that sufficient extenuating circumstances also exist in favour of the appellant for reducing the sentence of the appellant from death to imprisonment for life.
18.As is obvious from the opening part of this judgment the appellant has also been convicted for an offence under Sections 3 and 4 of the Explosives Substances Act, 1908. The contention of the learned counsel for the appellant is that conviction to this extent is not maintainable for lack of sanction of Central Govt. in this behalf. It is not disputed by the learned Prosecutor or the learned counsel for the complainant that the sanction of the Central Govt. for prosecution for an offence against the Explosive Substances Act, 1908 is a condition precedent for the trial of the accused which sanction is of course missing in this case. That being so the sentence imposed upon the appellant under Section 4 of the Explosive Substances Act, 1908 is not sustainable in law. The conviction to that extent is, therefore, set-aside.
19.For what has been held under para 17 above, while maintaining the conviction we reduce the sentence of the appellant from death to imprisonment for life. However, the order of compensation shall be upheld. Resultantly, Cr.A. No, 1744/06 filed by the appellant is dismissed with the above modification in the sentence. Benefit of Section 382-B Cr.P.C. shall also be extended to him. Death Sentence is Not confirmed and Murder Reference is answered in the Negative.