JUDGMENT RAUF AHMAD SHEIKH,J.---The appellant has assailed the vires of the judgment dated 24-4-2006 passed by the learned Judge Anti Terrorism Court No.I, Rawalpindi Division and Islamabad Capital Territory at Rawalpindi, in case F.I.R. No.196 dated 23-3-2006, Police Station Civil Lines, Rawalpindi, under sections 302, 395, 412, 413, 201 and 109, P.P.C. And section 7 of the Anti- Terrorism Act, 1997, whereby he was convicted under section 7(a) of the Anti-Terrorism Act, 1997, and was sentenced to death with a fine of Rs.300,000 and in, case of default in payment of the same to undergo S.I. For two years. The learned trial Court has also submitted Capital Sentence Reference No.60-T/2007 for confirmation or otherwise of the death penalty awarded to the appellant. Syed Afaq Ahmad, complainant, has also filed Criminal Revision No.98 of 2007, whereby it is prayed that adequate compensation be awarded to the heirs of the deceased. As all these matters are interlinked and interconnected so are being decided through this single judgment.
2. Briefly stated the prosecution version as set forth in the F.I.R. (Exh.PA/1) recorded on the statement (Exh.PA) of Afaq Ahmad son of Ishtiaq Ahmad, aged 52 years, resident of House No.6, Lala Zar, Dhamial Road, Rawalpindi, is that Syed Walid Ahmad son of the complainant's brother Shahab Ahmad was abducted from Muslim Town Sadiqabad on 18-3-2006 and case F.I.R. No.127 dated 21- 3-2006, Police Station Sadiqabad; under section 365-A, P.P.C., was registered. Zeeshan alias Shani son of Ali Shan resident of Dhok Charagh Din, who is related to were of the complainant's brother Shahab Ahmad went to his house once or twice before. The abduction. He gave Toffees to Walid Ahmad, aged about 9/10 years and developed relations with him.. Once or " twice the appellant had taken him in his car to bring breads. On sudden disappearance of Walid Ahmad on 18-3-2006, the appellant also disappeared from his house. The complainant developed suspicion, as Walid Ahmad would not go with any one without acquaintance. The complainant attempted to make contact with Zeeshan alias Shani. On the same day Ali Shan, appellant's father, came to their house and consoled them by saying that the appellant can commit murder but cannot abduct, the child.
In the-night, the appellant made a telephone call and said that their child would return within 4/5 days. Thereafter, the telephone calls were made from Mobile Phone Nos. 0304-9053579 and 0304- 5030353 with different names like Abdul Rauf, Sabir, Kashif and Hanif requiring them to make arrangements for a sum of Rs.25,00,000 and then they would get their child. During conversation the person making the call agreed to a sum of Rs.15,50,000 and their conversation was also arranged with Walid Ahmad. These calls were received on their Telephone No.4473532. On 22-3- 2006, they were asked to come to Peshawar along with money and it was told 'that Walid Ahmad would be handed over to them there. The complainant along with Tanvir Ahmad, Muhammad Nauman and Tauseef Ahmad put the money and a Wallet containing identity cards of Tanvir Ahmad and Shahab Ahmad in a black bag and when they arrived near Kamra, a call was received on the mobile phone of Tanvir Ahmad that the kidnappers had seen them so they should go back to Rawalpindi and come to Liaquat Bagh, Rawalpindi, at 2-00 A.M. On this, they along with the same bag arrived at Liaquat Bagh. A call was received on mobile phone of Tanvir Ahmad asking him that he should come alone on foot in Marir Hassan School Wali Gali. The complainant, Nauman Ahmad son of Ishtiaq Ahmad and. Tauseef Ahmad son of Saeed followed Tanvir Ahmad while watching him. At about 4-00 a.m. Tanvir Ahmad arrived in School Wali Gali and was at a little distance ahead of them. In the meanwhile, Zeeshan alias Shani along with three other persons, who were seen in the light of electricity and could be identified on face to face meeting, snatched the bag containing money from Tanvir Ahmad and fled away, while firing and causing injuries to Tanvir Ahmad, who died at the spot.
3. After the investigation the appellant and 'five others were sent up to face trial. They were charged under section 7(a) of the Anti-Terrorism Act, 1997, read with sections 302/148/149/109 P.P.C. While the remaining accused persons were declared as proclaimed offenders.
4. After conclusion of the trial the learned trial Court proceeded on to convict and sentence the appellant as above whereas the remaining five co-accused persons were acquitted.
5. The prosecution examined 13 witnesses in support of its allegations against the appellant.
6. Dr. Irfan Khilji, P.W.10, who conducted the autopsy of the dead body of the deceased on 23-3- 2006 at 12-00 Noon, had found 16 injuries on his person, out of which 9 were entry wounds. In his opinion the deceased died due to multiple firearm injuries, caused by firearms, causing head injury and injury to vital organs (left lung and right kidney) and injury to the major blood vessels, leading to hypo volumic shock and death. All the injuries were ante mortem In nature and same could have caused death in the ordinary course of nature. The time between injuries and death was immediate, while death and postmortem, was 6 to 8 hours. He proved the copy of the postmortem report (Exh.PM) and pictorial diagrams (Exhs.PL/1 and PL/2).
7. Afaq Ahmad, complainant, appeared as P.W.3 and almost reiterated the contents of his statement Exh.PA. He added that due to the firing on the deceased terror and fear was created in the area and people of the locality confined themselves in their houses. He stated that his complaint Exh.PA was recorded as per his narration and was read over to him and the same was signed by him.
8. Tauseef Ahmad, P.W.4, stated that Walid Ahmad sbn of Saeed Ahmad was abducted on 18-3- 2006 and case F.I.R. No.127 of 2006 was registered at Police Station Sadiqabad, Rawalpindi. The parents of Walid Ahmad had expressed their suspicion for the abduction of Walid Ahmad against Zeeshan alias Shani, who had disappeared after registration of the case. Thereafter, the ransom was demanded through different telephone numbers and finally the amount of Rs.15,50,000 was settled. It was asked that the amount be paid and by be taken. During the night between 22nd and 23rd of March, 2006 a telephone call was made whereby the accused had asked that Tanvir Ahmad deceased should come to Liaquat Bagh along with the said amount, so the witness, Tanvir Ahmad deceased, Afaq Ahmad and Nauman Ahmad, P.Ws, went to Liaquat Bagh along with the said, amount. A telephone call was again received on the mobile phone of Tanvir Ahmad at Liaquat Bagh that he should come alone with the amount in School Wali Gali near narrow Puli of Marir Hassan, Rawalpindi. Tanvir Ahmad along with the bag containing amount proceeded towards the said place. Afaq Ahmad, complainant, Nauman Ahmad P.W. And he himself started following Tanvir Ahmad. They saw in School Wali Gali that Zeeshan alias Shani appellant and his 3 companions snatched the bag from Tanvir Ahmad deceased and opened direct firing on him.
They witnessed the occurrence in the streetlight. Tanvir Ahmad while receiving fire shot injuries fell on the spot and succumbed to the injuries. The appellant and his companions fled away along with the bag.
9. The recoveries are proved through Tauseef Ahmad P.W.4, Asad Abbasi P.W.5, Asif Saleem P.W.7, Ishtiaq Ahmad P.W.11 and Muhammad Ilyas P.W.13.
10. Tauseef Ahmad P.W.4 stated that the Investigating Officer collected 16 empties of.30 bore pistol P.1/1-16 and after converting the same into sealed parcel secured the same through memo. Exh.PD.
He further stated that on 8-5-2006 the accused while in police custody made a disclosure and led to the recovery of.30 bore pistol P.2 from an almirah of the upper storey of his residential house which was secured by the Investigating Officer through memo. Of recovery Exh.PE. Asad Abbasi P.W.5 has proved memo. Of recovery Exh.PG whereby the copies of the register Exh.PF and PF/1 were secured by the Investigating Officer. Asif Saleem P.W.7 stated that the accused while in police custody made a disclosure and led to the recovery of bag P.3 containing a sum of Rs.2,20,000, identity card of Tanvir Ahmad P.4, a telephone bill P.5, mobile phone with SIM and the Investigating Officer secured the same through memo of recovery Exh.PJ. Khurram Shahzad P.W.6 has proved the site plan with scale Exh.PH and PH/1. Muhammad Iqbal P.W.8 has proved the F.I.R. Exh.PA/1.
Muhammad Ishtiaq P.W.11 has proved the memo. Of recovery Exh.PM through which the sports motorcycle bearing Registration No.IDK9211 and a BMW Car bearing Registration No.8225 Karachi were secured.Haji Muhammad Boota P.W.12 has stated that vehicle No.HK-652 was obtained by Zeeshan accused on rent and he, also proved receipt Exh.PN. Muhammad Ilyas, Sub-Inspector, appeared as P.W.13. He stated that on 23-3-2006 he received a wireless message and arrived at the place of occurrence where dead body of Tanvir Ahmad Qureshi was lying. He recorded the statement of Afaq Ahmad, complainant, Ex.PA. He has proved the inquest report Exh.PD, application for postmortem examination Exh.PP, memo. Of recovery Exh.PD whereby 16 empties P.1/1-16 were secured, memo. Of recovery of the bloodstained cotton Exh.PC, site plan without scale Exh.PQ, memo. Of recovery Exh.PK regarding securing of last worn clothes of the deceased, red notes on the site plan with scale Exh.PH and PH/1, memo, of recovery Exh.PJ, whereby the amount of Rs.2,20,000 P.10, identity card of Tanvir Ahmad P.4, telephone bill P.5, Nokia phone P.11, SIM P.11/1 and bag P.3 were secured, memo. Of recovery Exh.PG regarding' securing of Exh.PF and PF/1 and memo of recovery Exh.PM, whereby the Motorcycle No.IDK-9211 P.13 and Car No.8285 Karachi were secured.
It is stated that on 8-5-2006 the accused made the disclosure and led the police party to his residential house and from the second storey of the house got recovered.30 bore pistol P.2 kept in an almirah, which was secured through memo of recovery Exh.PE.
11. The appellant in his statement under section 342, Cr.P.C. Denied the correctness of the allegations of the prosecution against him and truthfulness of the witnesses produced by it. He stated that false recoveries were planted upon him. It is contended that the police planted a false case of murder of Ajmal Constable of Sadar Beroni against him and due to the enmity of the Police Department, he was falsely implicated in the instant case. It is stated that the P.Ws. Have deposed falsely at the instigation of D.I.G., Rawalpindi. He, however, opted neither to appear as witness on oath under section 340(2), Cr.P.C. Nor to produce any defence evidence but contended that he is innocent.
12. The learned counsel for the appellant has vehemently contended that the prosecution has fabricated an improbable story and has failed to produce any independent witness. It is urged that the confessions attributed to him in police custody are not admissible in evidence. It is contended that the place of occurrence is situated in a thickly-populated area but no independent person from the Mohallah has come forward to prove the prosecution case and only close relatives of the deceased and alleged abductee of case F.I.R. No.127 dated 21-3-2006, Police Station Sadiqabad, have been produced, who are interested witnesses and cannot be relied upon. 1st contended that allegedly firing was made on the deceased from a distance of six ft. As is clear from the site plan Exh.PH but no blackening and tattooing was found on the person of the deceased so the ocular account is in contrast with the medical evidence. It, is urged that the employees of the Police Department had grudge against him and they had deposed against him under the influence of D.I.G., Rawalpindi.
13. Controverting these arguments the learned counsel for the complainant and the learned Deputy Prosecutor-General have vehemently contended that the occurrence took place at about 4-00 a.m. On 23-3-2006 and at 5-40 A.M. The statement of the complainant was recorded and the F.I.R. Was registered at 6-00 a.m. On the same day so there Was no time for deliberations or Substitution. It is stated that the appellant was nominated in the F.I.R. And there was no chance of misidentification, as he was ' known to the P.Ws. Because of his relationship with brother's were of the complainant and visiting terms in his house. It is contended that the modern weapons do not cause blackening or tattooing even if fired from a close range and the Nonappearance of such marks on making of fires from the distance of six ft. Does not show that the strong ocular account was not trustworthy. It is urged that overwhelming ocular account coming from independent and reliable witnesses is duly supported from the recovery of the weapon of offence, part of looted amount and the medical evidence.
14. The prosecution case mainly hinges upon evidence of Afaq Ahmad P.W.3 and Tauseef Ahmad P.W.4. Both of them have categorically stated that the appellant and Tree others snatched the bag containing money and other articles from the deceased and made tiring on him. Both of them have stated that they had accompanied the deceased and when he was asked to come to the place of occurrence alone so he proceeded to that place and they were following and watching him. The learned counsel for the appellant has contended that there is a turn in the street so it was not possible for the witnesses to witness the occurrence from Points Nos. 3 and 4 shown in the plan.
Point No.1 from where the bag was allegedly snatched by the appellant and his unknown co- accused is clearly visible from these two points and point 2 is also not hidden because there is no turn rather there is a slight curve in the street. The electricity was available at the place of occurrence as stated by the P.Ws. And fortified from the existence of the electricity pole at the said place as per site plan Exh.PH. The mere fact that one of these witnesses is related to the deceased and other to the abductee of case F.I.R. No.127 dated 21-3-2006 does not prove that they have deposed falsely because they had no motive to implicate the appellant in the false case or to give false evidence against him. The F.I.R. Was promptly lodged and the presence of these witnesses was categorically mentioned therein. Both these witnesses, therefore, have proved beyond doubt that the appellant called the deceased to the place of occurrence along with the Bag containing the ransom money and after snatching the same opened firing on him, which resulted into his death.
15. Tauseef Ahmad P.W.1 and Muhammad Ilyas, Sub-Inspector, P.W.13 have proved that 16 empties of.30 bore pistol were secured from the place of occurrence vide memo of recovery Exh.PD. Both of them have also proved the recovery of the weapon of offence i.e. Pistol.30 bore on his disclosure and pointation. Copy of report of the Forensic Science Laboratory shows that these crime empties matched with test empties prepared from the pistol got recovered by the appellant. This proves that this pistol was used during occurrence by the appellant. The contention of the learned counsel for the appellant that non-matching of the remaining empties creates doubt regarding recovery of the weapon of offence, has no force as it is categorically stated by P.Ws. That the appellant and three others had committed murder by making fires with.30 bore pistol. This is a very strong corroborative piece of evidence. Similarly the appellant led to the recovery of Rs.2,20,000 along with the other documents which were kept in the bag of the deceased. Asif Saleem P.W.7 and Muhammad Ilyas P.W.13 have proved this recovery. Asif Saleem P.W.7 is not related to the deceased or the complainant. He is an independent witness and there is no reason to disbelieve him. The postmortem was conducted on 23-3-2006 at 12-00 Noon and the probable time between the postmortem and death was 6 to 8 hours. The occurrence according to the prosecution had taken place at about 4-00 a.m. The injuries on the person of the deceased were caused with firearm. The learned counsel for the appellant has contended that these injuries show that firing was made from different sides. The appellant and three others have been alleged to have caused injuries. The human beings while receiving injuries do not remain static. The medical evidence, therefore, is in line with the ocular account. The ocular account furnished by trustworthy witnesses duly supported by the medical evidence and recovery of incriminating material proves that the appellant had committed Qatl-e-amd of the deceased in a gruesome manner while snatching the bag containing ransom ID money.
B 16. The learned trial Court sentenced the appellant to death with a fine of Rs.300,000. The complainant has filed Criminal Revision No.98 of 2007 praying therein that the compensation to the heirs of the deceased be awarded. Section 544-A(1), Cr.P.C. Provides as under:-- "Whenever a person is convicted of an offence in the commission whereof the death of, or hurt, injury, or mental anguish or psychological damage to, any person is caused or damage to or loss or destruction of any property is caused, the Court shall when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case:"
17. The above provision is not inconsistent with the provisions of Anti-Terrorism Act, 1997, so in view of the provisions of section 32 of the Act ibid. It would be applicable to the proceedings before the Anti-Terrorism Court, which for the purposes of said provisions is deemed to be the Court of Session. The gruesome manner in which the deceased was murdered was a sufficient cause to award compensation to the heirs of the deceased under section 544-A, Cr.P.C. A sum of Rs.300,000 as compensation payable to the heirs of the deceased would be reasonable in the given circumstances of the case.
18. For the reasons supra Criminal Appeal No.218-T of 2007 is DISMISSED being devoid of force. The conviction recorded and sentence awarded to the appellant are MAINTAINED. He is further directed to pay a sum of Rs.300,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C. Which would be recoverable as arrears of land revenue and if the same is not paid or recovered as above, the appellant will undergo S.I. For two years. The sentences of imprisonment for non-payment of fine or non-recovery of compensation will run concurrently. The Criminal Revision No.98 of 2007 stands ACCEPTED. The Murder Reference is accordingly answered in the AFFIRMATIVE.