Ch. Mushtaq Ahmad, J.--Ghulam Mustafa and Muhammad Siddique have filed Criminal Appeal No, 20-ATA of 2009 against their conviction and sentence, whereas Muhammad Akhtar and Abdul Hameed appellants have filed Criminal Appeal No, 29-J-ATA of 2010 against their conviction.
Besides these appeals, Capital Sentence Reference No, 13 of 2009 has been sent by the trial Court for confirmation of death sentence awarded to the appellants.
2. Appellants Ghulam Mustafa, Muhammad Siddique Muhammad Akhtar and Abdul Hameed along with six others were tried by learned Judge, Anti-Terrorism Court No, I Multan in case FIR No, 523 dated 25.11.2007, under Sections 148, 302, 324, 149, PPC read with Section 7 and Section 21-L of Anti- Terrorism Act, 1997 registered at Police Station Saddar Lodhran, who vide his judgment dated 29.06.2009, convicted and sentenced all the four appellants as under:--
(i) Rigorous Imprisonment for two years to each convict under Section 148, PPC and to pay Rs, 10,000/- each as fine and in default, to further suffer SI for three months.
(ii) Death on five counts to each convict under Section 302(b) read with Section 149, PPC and to pay Rs, 1,00,000/- each as compensation to the legal heirs of all the five deceased u/S. 544-A, Cr.P.C. And in default whereof to further undergo SI for six months to each convict.
(iii) Rigorous Imprisonment for ten years to each convict under Section 324 read with Section 149, PPC and to pay Rs,20,000/- each as Daman to injured Haseena Bibi.
(iv) Death to each convict under Section 7 of ATA, 1997 and to pay Rs,1,00,000/- as fine and in default, to further suffer SI for six months to each convict.
3. FIR in this case was registered on the basis of statement of Faiz Ahmad (PW-15). The prosecution story as set out in the FIR is that on 25.11.2007 at about 07:30 p.m., complainant Faiz Ahmad alongwith his nephew Muhammad Musa and son Riaz Hussain were standing outside the Gate of Qadir Bakhsh. Suddenly, Muhammad Akhtar, Nawab, Ghulam Mustafa, Muhammad Siddique, Muhammad Abbas armed with Kalashnikovs, Shahzad, Ramzan, Rafique, Habib armed with rifles, Madni, Abdul Rehman, Abdul Hameed and Sooba armed with pistols entered the house of Qadir Bakhsh. Fire shot made by Muhammad Akhtar hit Qadir Bakhsh at backside of his head. Nawab also made fire shot at Qadir Bakhsh. Shahzad made fire shot which hit Sher Khan at his chest. Fire shot made by Madni hit Saeed at right thigh and fire shot made by Abdul Rehman hit Sher Khan above his right elbow. Ramzan made fire shot which hit Abdul Hameed at right arm and fire shot made by Ghulam Mustafa hit Saeed at chest. Rafique made fire which landed at chest of Abdul Hameed. Fire shots made by Habib landed at right and left arms of Saeed. Abdul Hameed made fire shot which hit Sher Khan above his right elbow. Muhammad Siddique made fire shots which landed at abdomen of Abdul Harneed at right side and also at foreleg of Haseena Bibi. Fire shot made by Muhammad Abbas landed at backside of head of Rashid. Two unknown persons remained standing outside the house.
4. It has been alleged in the FIR that this occurrence took place on abetment of Ghulam Fareed son of Yaaran.
5. As to motive, it has been stated in the FIR that relatives of the complainant had been murdered before this occurrence at Mauza Gundi and Chak No, 94/M and the complainant family had participated in their funeral ceremony. The accused persons had suspicion that the complainant party had been helping the complainant party of that case. Accused were also having suspicion that the deceased persons had demolished their houses.
6. Investigation in this case was conducted by PW-18 Muhammad Akram SI and then by Rasheed Ahmad Ranjha SI (PW19). PW-18 during spot inspection recovered crime empties P-8/1-9 and took the same into possession through recovery memo. Ex.PFF. He also took into possession crime empties P-9/1-17 through recovery memo. Ex.P-GG. He also arrested accused persons Habib, Rafique, Abdul Rehman, Ramzan, Shahzad, Madni and Sooba Khan on 31.12.2007 and Abdul Hameed on 27.68.2008. PW-18 recovered :44 bore rifle from Habib accused and a pistol .30-bore from Abdul Hameed accused. During investigation, PW-19 recovered Kalashnikov from Ghulam Abbas accused on 28.10.2008 and a pistol .30-bore from Muhammad Siddique accused. After completion of investigation, report under Section 173, Cr.P.C. Was submitted before the Court.
7. Charge against the appellants along with six others was framed by learned trial Court on 11.02.2009, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
8. Prosecution in order to prove its case, produced as many as nineteen witnesses, whereas Akhtar Abbas 765/C, Muhammad Saleem, Naseer Ahmad 411/C, Mian Mukhtar Ahmad and Riaz were given up by learned Public Prosecutor being unnecessary witnesses.
9. Medical evidence was furnished by PW-4 Dr. Aneela Ali and PW-5 Dr. Shaukat Ali. Haseena Bibi injured PW was medically xamined by PW-4 Dr. Aneela Ali on 05.12.2007, who observed as under:-- ' Entry wound: ' A lacerated wound was present on the middle antromedial aspect of left leg measuring 1 x 2 CM with debited edges. It was in healing phase.
'Exit wound:.
' A wound on postromedial aspect of left leg measuring 9x7 CM. It was also in healing phase.
Tendon were exposed on postromedical aspect. There was swelling on left leg, there were impaired sensation over posterior tibial nerve supply area.
' According to PW-4, all injuries were fire-arm injuries. Probable duration was 10 to 15 days.
' Postmortem examination on the dead body of Rashid was conducted by PW-5 Dr. Shaukat Ali. He observed as under:- 'INJURY:
1. 10 CM x 10 CM injury on the top of head with fracture of skull bone, brain matter was coming out from the injured side. Rest of viscera and body were healthy.
'OPINION: ' Cause of death in this case was due to brain death leading to Neurogenic shock; Death and injury was due to fire-arm and was sufficient to cause death in ordinary course of nature.
' PW-4 also conducted post-mortem examination on the dead body of Abdul Hameed and observed as under:- ' IN JU R IES:
1. 1 CM x 1 CM through and through, the left external ear.
2. 1 CM x 1 CM behind the left ear and skull bone.
3. 3 CM x 2 CM on middle top between neck and right shoulder.
4. 4 CM x 3 CM on lateral side of right shoulder (wound of exit).
5. 2 CM x 2 CM on right arm (wound of entry).
6. 10 CM x 5 CM on back of right arm (wound of exit).
7. 1 CM x 1 CM on right side of chest 3 CM from right nipple (wound of entry).
8. 3 CM x 2 CM on right side of chest 7 CM from the right nipple (wound of exit).
9. 5 CM x 3 CM on the right side of abdomen
10. 10 CM x 8 CA/Lon back of abdomen.
11. 1 CM x 1 CM on left side of abdomen.
12. 4 CM x 4 CM on the back of central chest.
13.
0.5 CM x 0.5 CM on anterior side of left shoulder.
' There was found hole through sternum and pleurae was full of blood, right lung was ruptured and blood vessels were also ruptured. Abdomen and peritoneum were also ruptured. Stomach was semi-filled, small intestines and large intestines were ruptured and liver was injured. Urinal was partially filled with urine.
'OPINION: ' Cause of death was due to injury to liver and lungs, injury was due to fire-arm and was sufficient to cause death in ordinary course of nature.
'Post mortem examination on the dead body of Qadir Bakhsh was also conducted by PW-5 and observed as follows:- 'INJURIES:
1. 2 CM x 2 CM on back of neck (wound of entry) just below the occipital bone.
' 7 CM x 7 CM on back of head on occipital bone with fracture of occipital bone, brain matter was coming out from the injured side.
' Fracture of occipital with cervical vertebrae membranes were also ruptured and brain matter was coming out. Rest of the body was normal.
' OPINION: ' Cause of death was due to brain death, leading to neurogenic shock, death and injury was due to fire-arm and was sufficient to cause death in ordinary course of nature.
' PW-5 conducted post-mortem examination on the dead body of Sher Khan and observed as under:-- ' INJURIES:
1. 1 CM x 1 CM on anterior aspect of right arm (wound of entry).
2 1.5 CM x 1.5 CM on medial side of right arm (wound of exit).
3. 1 CM x 1.5 CM an right side of back of chest (wound of entry).
4. 3 CM x 3 CM on front of central chest (wound of entry).
5. 1 CM x 1 CM on the left side of abdomen (wound of entry).
6. 2 CM x 2 CM on back of the left side of abdomen and chest (wound of exit).
7. 1 CM x 1 CM on lateral side of right thigh (wound of entry).
8. 3 CM x 4 CM on inner side of right knee (wound of exit).
' The ribs were fractured with injury to Blood was present inside the pleurae. Right lung, left lung were injured. Pericardium, heart and its blood vessels were ruptured. Walls of abdomen and peritoneum and diaphragm were ruptured. Large intestines were ruptured. Spleen and right kidney were also ruptured.
'OPINION: ' Cause of death was injury to heart, lungs and left kidney and these injures were due to fire-arm and were sufficient to cause death in ordinary course of nature.
' PW-5 while conducting post-mortem examination on the dead body of Saeed Ahmad, observed as under:- 'INJURIES:
1. 1 GM x 1 CM on the right temporal region (wound of entry).
'2. 2 CM x 2 CM on the back of neck (wound of exit).
3. 1 CM x 1 CM on right side of chest (wound of entry).
4. 4 CM x 4 CM on the back of right chest below the scapula (wound of exit).
5. Crush injury of 20 CM x30 CM un the right elbow joint with fracture of humorous, radius and ulna.
6. 1 CM x 1 CM on the lateral side of left hand (wound of entry).
7. 4 CM x 4 CM on the medial side of left hand (wound of exit).
' Right temporal bone was fractured. Rib No, 9 and Rib No, 10 were fractured. The pleurae was full of blood. Right lung was also ruptured. Rest of the body was normal.
'OPINION: ' Cause of death was due to head injury right lung injury, and crush injury of right upper limb (elbow joint area). All the injuries were due to fire-arm and ante-mortem and were sufficient to cause death in ordinary course of nature.
10. Thenceforth statements of the appellants were recorded under Section 342, Cr.P.C. Wherein they again pleaded innocence. They neither opted to make statement on oath as required u/S. 340(2), Cr.P.C. Nor they intended to produce any defence evidence. They while answering to the question why this case against them and why the PWs had deposed against them, stated as follows:-- "It was pitch dark night and unseen occurrence. The deceased were sleeping when some unknown persons murdered them. The complainant party killed five persons from our side. They have grudge against us so they have falsely implicated us in this case after consultation and deliberation with the police. We are innocent and falsely involved in this case due to enmity. All the PWs are related inter se and interested witnesses. They have falsely deposed against us due to previous grudge".
11. At conclusion of trial, the appellants were convicted and sentenced as mentioned above, hence, these criminal appeals as well as capital sentence reference.
12. Learned counsel for the appellants contends that, motive set up in the FIR has not been established by the prosecution and the learned trial Court has not made even an oblique reference thereof; that the entire incident is structured on the motive alleged by the prosecution which remained far from the apertures; that occurrence took place it 07:30 pm in a small village at the end of the month of November in presence of Faiz (complainant), Muhammad Musa and Riaz Hussain standing by the door step of the house of occurrence, without there being any plausible reason, is not confidence inspiring and it appears that they were subsequently inducted as witnesses to furnish ocular account on the basis of an FIR which is the result of consultations and deliberations through the good offices of Muhammad Saddique, who admittedly deposed towards the appellants and himself is accused in a previous incident of identical gravity. Learned counsel further contends that even if presence of the witnesses is considered at the cited point, the incident did not come within their view according to prosecution's down site-plan. Learned Counsel further contends that role of Akhtar appellant vis-a-vis injury on the back of head of Qadir Bakhsh has been changed during the trial. In this regard while referring to the statements of Musa and Mst.
Hasina Bibi PWs, learned counsel for the appellants contends that both these witnesses have implicated Akhtar appellant by way of a massive improvement. In so far as case of Muhammad Siddique appellants vis-a-vis Abdul Hameed deceased is concerned, the learned counsel contends that given the diameters of the injury, the same could not have possibly been caused by the weapons used in the occurrence as apertures on the abdomen belie the role attributed to Muhammad Siddique: Further contends that Muhammad Siddique appellant is assigned a fire shot of Kalashnikov during the course of occurrence, but he led to the recovery of .30-bore pistol instead. Even Musa and Hasina Bibi PWs ascribed role to Muhammad Siddique by their previous statements with which they were duly confronted. Lastly contended that autopsies were conducted belatedly without there being any explanation of the same.
13. Contrarily, it has been argued by the learned Deputy Prosecutor. General assisted by learned counsel for the complainant that prosecution has been able to bring home charge against all the appellants beyond a shadow of doubt and that acquittal of co-accused does not adversely affect the case of the prosecution vis-a-vis the appellants for the reasons that they were extended benefit of doubt even to ensure safe administration of criminal justice. Further contends that ocular account is fully corroborated by the medical evidence. According to the learned DPG, report of forensic science laboratory is in the negative but the appellants led to the recovery of Weapons which according to the medical evidence were found to have used in the occurrence. There is enmity which provided a motive to the appellants who amounted pre-concerted and premeditated . Attack resulting into death of five innocent inmates within the safety of their house and that occurrence was witnessed by Mst. Hasina Bibi who is an injured witness and whose presence cannot be disputed at the spot being one of the inmates of the family. In so far as Musa and Faiz PWs are, concerned their presence is also sufficient sound and plausible..
14. Arguments heard and record perused:
15. Record in this case shows that Faiz Ahmad complainant (PW-15), Hasina Bibi injured PW-16 and Muhammad Musa PW-17 furnished ocular account regarding the main incident; According to PW- 15, on 25.11.2007 he went to Bahawalpur to participate in a marriage ceremony of his nephew and thereafter he returned home. . He alongwith Musa and Riaz PWs was standing at the door of house of Qadir Bakhsh. Accused persons duly armed came there and entered the house of Qadir Bakhsh.
They committed the occurrence as mentioned in the FIR. Hasina Bibi PW-16 herself sustained injuries during occurrence. Muhammad Musa PW-17 is also one of the eyewitnesses of this case.
16. According to said PWs, accused came and started firing at the deceased as well as injured PW.
Their presence at the time and place of occurrence was well explained. The record reveals that PW-4 Dr. Aneela Ali conducted medical examination, of Mst. Hasina Bibi, whereas PW-5 Dr. Shaukat Ali conducted post-mortem examination on the dead bodies. Both of them noted injuries sustained by the deceased as well as injured PW. According to post-mortem report fire-arm injuries were found on the dead bodies. The injuries attributed to appellants caused by fire-arm were noted by both PW-4 and PW-5. Ocular account in this case was corroborated by medical evidence. All the above mentioned appellants came together and caused injuries to the deceased and injured PW in furtherance of common object. The prosecution successfully proved the charge against appellants beyond reasonable doubt.
17. After going through, the evidence, we have observed that it was version of PWs that all accused came together and started firing. In such like situation it was not probable that PWs could have taken a photographic view as to who had fired at whom during the incident. Moreover, appellants in their statements recorded under Section 342, Cr.P.C. Stated that the complainant party had earlier murdered five persons of their party which shows that both the parties have been indulged in taking the law into their own hands.
18. In the light of above backdrop, it was not a case of extreme penalty. Present 'occurrence was also a result of personal vendetta. The offence under Section 6 read with Section 7 of Anti- Terrorism Act, 1997, therefore, was not established on the record.
19. After re-appraisal of the evidence available on record and going through the impugned judgment, we are inclined to maintain the conviction recorded by the trial Court under Section 302(b), PPC but commute death sentence to imprisonment for life on each count with amount of compensation, as directed by the learned trial Court, whereas conviction under Section 7 of Anti- Terrorism Act, 1997 is set aside. The conviction recorded by the trial Court under Sections 324, 148, PPC is maintained. All the sentences shall run concurrently with benefit of Section 382-B, Cr.P.C.
Both the Criminal Appeals are partly allowed in above terms. Resultantly, death sentence awarded to the appellants on each count is NOT CONFIRMED and Capital Sentence Reference No, 13 of 2009 is answered in the NEGATIVE.