IJAZ AHMED CHAUDHRY, J. --- Appellants along with six others were tried in the case registered vide FIR No. 94/2002, dated 15.4.2002 under Sections 302/324/452/ 148/149, PPC read with Section 7(a) and 7(e) of the Anti-Terrorism Act, 1997 and under Section 13 of the Arms Ordinance at Police Station Sadar Narowal for committing heinous murder of six persons. The learned Trial Court/Anti - Terrorism Court vide its judgment dated 19.2.2003 convicted the accused under Section 7(a) of the ATA read with Section 302(b), PPC each and sentenced them to death each on six counts and to pay a sum of Rs. 200,000/- each to the legal heirs of the deceased each. They were also convicted under Section 7(c) of the ATA read with section 324, PPC each and were sentenced to imprisonment for life each and to pay a fine of Rs. 10,000/- each or in default whereof to further undergo SI for three months each. They were also convicted on two counts under Section 452, PPC and were sentenced to RI for seven years each on each count and to pay a fine of Rs. 10,000/- each on each count or in default whereof to further undergo SI for three months each on each count.
Nasir Mehmood and Tahir lgbal @ Tahira appellants alongwith co-accused Shaukat Ali and Asghar Ali were also convicted under Section 13 of the Pakistan Arms Ordinance, 1965 each and were sentenced to RI for three years each on the said count. All the sentences were directed to be run concurrently with benefit of Section 382-B, Cr.P.C. Three co-accused namely Qaisar Mahmood, Asif Mahmood @ Kala and Muhammad Asghar had been declared proclaimed offenders and the case against them had been separated by the learned Trial Court. However, the learned High Court while acquitting the other co-accused, maintained the convictions and sentences of the appellants recorded by the learned Trial Court.
2. The prosecution story briefly stated is that on the fateful date and time the complainant was present in his house alongwith his brothers namely Arif Ali, Abbas Ali, Irshad Ahmed and Shafqat Ali and other family members when suddenly the accused entered his house while armed with firearms and asked the complainant to produce their Ahmed v. Allah Wasaya (2004 SCM R 1808) this Court has held that statement of an accused recorded under Section 342, Cr.P.C. has to be read in its entirety and has to be accepted or rejected as a whole. The statements of accused recorded under Section 342, Cr.P.C. if believed in entirety also find support from the prosecution evidence. Even otherwise, the statement of an accused recorded under Section 342, Cr.P.C. is more reliable than compared to the statement recorded under Section 164, Cr.P.C. which is recorded when the accused is in police custody, as before submission of challan under Section 173, Cr.P.C. the accused as a precaution gets a chance to record his statement before the Magistrate. In the instant case the appellants were afforded full opportunity to get recorded their statements under Section 342, Cr.P.C. without any duress or coercion. Even at trial when the appellants were duly represented no question of duress or coercion arose. The appellants did not deny the occurrence in which six persons lost their lives but have pleaded that the incident had not taken place in the manner narrated by the prosecution. According to them they had actually fired at one Javed @ Jaida but as he escaped, the deceased got the fire shots. In such circumstances, as the appellants had himself admitted the occurrence, the learned Courts below have rightly sentenced them to death. Their explanation that they had no intention to kill the deceased does not bring their case for reduction of sentence. The appellants had repeated the fires and even they had rewound the episode in the second house of Munawar Ali.
5. For what has been discussed above, the appellants do not deserve any leniency in the quantum of punishment. The prosecution has proved its case against the appellants-accused beyond any shadow of doubt apart from their statements recorded under Section 342, Cr.P.C. The judgment of the learned High Court is unexceptionable. The appeal having no merit is accordingly dismissed.
Criminal appeal dismissed.
DOST MUHAMMAD KHAN, J. -- I have gone through the judgment ,authored I* my lord brother Mr. Justice ljaz Ahmed Chaudhry and have also carefully examined the entire evidence/facts of the case, the statements of the appellants recorded u/s. 342, Cr.P.C. and after combined study of the same. I am respectfully not in agreement with the view that the appellants' death sentence maintained by the learned Division Bench of the Lahore High Court, Lahore is to be endorsed by this Court without observing any care and caution. Keeping in view the peculiar circumstances of the case there are bundle of doubts apparent on the face of record thus, at least benefit of the same must be given to the appellants with regard to the quantum of sentence if at all their conviction is to be maintained. My reasons for dissenting view are as follows:--- Admittedly, the report was made at the crime spot/house. The FIR lodged in a murder case in this way without plausible reasons is considered a suspicious one by the Superior Courts and in such at case, the entire evidence is to be re-appraised with extra degree of care and caution.
(i) Being a night occurrence how in the remote village the electric bulb was kept lit at night time Why the complainant and the other two witnesses were chatting when the rest of the inmates were in sound sleep, being midnight time.
(iii) When Jaida, the sole cause of the tragedy was not present there, then why aLl the accused resorted to indiscriminate firing by enacting such a tragedy.
(iv) How the complainant and the two witnesses escaped without getting a scratch of bullet or pellet on their bodies while the sleeping inmates became the victims.
(v) When the complainant ran away inside along- with the two witnesses, took shelter there, how he knew that the accused had proceeded to the house of Munawar Ali. He was supposed to attend to his dying close blood relatives but contrary to that he showed entirely an unnatural conduct, instead of attending to his own victims, he regained so much courage to chase the accused empty handed upto the house of Munawar Ali where the second incident took place and casualties of equal or more numbers occurred. He has played role of a professional photographer by taking the snapshots of each and every event arid' did nothing else. Having serious rivalry in the same village and' enmity -as well, he too must have had firearms in his house but he did not pick up., anyone to shoot at the aggressors.
(vi) Why Mst. Rukhsana Munawar, who had sustained three bullet injuries,, one on her shoulder and two on right thigh crying in pain with excessive bleeding from her wounds, was not quickly moved to the hospital to save her life as she has been shown received in hospital at 3:40 a.m. on 15.04.2004, in the MLR, when the police had already reached there. Vehicles besides the co-villagers were there to provide the required support/help.
(vii) The electric bulbs, in the light of which the witnesses identified the culprits, were neither taken into possession nor the same have been indicated in the site plans by the draftsman, which are Ex- PO and Ex-PO/1.
(viii) The first post-mortem report was conducted at about 10:30 a.m. on the following day and the rest thereafter upto 2 p.m. so there is delay in the same.
(ix) The Arms Expert's report is equally a questionable document because some of the empties, did not match with the rifle and pistol of the- two appellants r_espectively, While about the rest, being 1344n/Rerfo rated hence, striking marks on it were not identifiable. This infirmity apart, the crime empties were allegedly recovered on the night of occurrence from the two crime spots however, those were kept by the police with it and after recovery of the alleged crime weapons, were jointly sent to the Expert with a delay of about 15 days and on that account too, the same cannot be safely relied upon.
(x) After facing long trial and contesting the charge, the appellants tried their best to exonerate themselves from the charge however, it appears that the two appellants were the servants/employees of the acquitted co-accused and thus influenced too much therefore, they turned scapegoats to get a clearance chit from the Court for the acquitted co-accused. In this background the Court of law has to see that what was the compelling reason, which drove the appellants to admit the crime at the fag end of the trial. Whether this statement was given with free will and voluntarily or it was contrived by someone. It is noticeable phenomena that in the Trial Courts, ordinarily questions u/s. 342, Cr.P.C. are prepared and put to the accused by the Prosecutor with the assistance of the complainant counsel and the defence counsel common for all makes the reply. It is evident from the record that the two appellants were not literate and the answer given on their behalf is in English. The learned Trial Judge has not attended to this crucial aspect of the case at proper time. As soon as this admission was made, the Trial Judge was required to have had administered warning to the appellants that such admission could be used against them and might ensue grave consequences also probing into the factors behind the screen as to whether this admission was made by the appellants with their free will, consent and understanding or it was otherwise. This would show that the Trial Judge has acted carelessly in the dispensation of justice and did not fulfill his legal obligation. Again, there is a sky high difference between an admission and confession. It is a consistent view of the Courts that no one shall be condemned and sentenced to death on a capital charge merely if he pleads guilty to the charge but some evidence must be recorded which shall be taken in support of the plea of guilt of the accused.
Therefore, in my humble view, such admission of the appellants could not be made sole basis for sentencing them to death. Under the provisions of law of evidence, in the relevant Chapter, admission is defined as a relevant fact and not a proof by itself while on the other hand a confession duly recorded by the Magistrate is a primary evidence against the accused making the same, while it can be used as a corroboratory evidence against co-accused, therefore, we would be failing in our duty to give that much of importance to the admission made by the appellants, which appears to have been made under influence of the acquitted co-accused. Moreover, the learned Division Bench of the High Court has rejected the evidence of the prosecution in the same manner like here it was disbelieved to the extent of acquitted accused in the main judgment, written by my lord bother, thus the entire fate of the case now based on simple admission.
2. In the case of Gulistan, etc., v. The State (NLR 1995 Crl. 665), it was held that dishonest preparation of FIR by the police once established, then the entire prosecution evidence must be appreciated with a great care and caution, While in the case of Muhammad Hasan v. State (NLR 1982 Cri. 467) it was held that in a murder case when report is lodged at the crime spot, then strong presumption would be that it was lodged after consultation and deliberation.
3. Fleeting looks of culprits in a night occurrence falls in the category of suspect evidence thus, once it is disbelieved qua acquitted accused then very strong corroborating evidence would enable the Court to remove chaff from grains. The leading and binding judgment is in the case of Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11) where it was held that once witnesses are found making false statement with regard to involvement of one of the accused then they loose integrity and their testimony cannot be relied upon with regard to the other co-accused unless it is amply corroborated by independent and unimpeachable evidence. This principle has been followed by this Court till date being of vital importance and based on sound rationale. Thus, when the majority of the accused in this case, have been acquitted then, how the statements of the appellants containing admission could be construed as a strong corroboratory evidence to infuse credibility into their testimony, when they have told lies qua the acquitted co-accused.
The most decisive factor is the motive for the crime. The learned Division Bench of the High Court disbelieved the motive set up in the FIR and reiterated at the trial and the one advanced by the two appellants in their statements u/s. 342, Cr.P.C. has been given preference. The settled principle of law is that when the Court is confronted with a choice to believe the motive set up by the prosecution or the one given by the defence then in such circumstances, Re-benefit of doubt shall go to the accused. This view was held in the cases of Sikandar v. The State (PLD 1963 SC 17) and Rashid Ali Khan v. The State (1992 P.Cr.LJ. 1320). In any case, the true motive for the crime is still a matter of choice and guess work. This fact alone is sufficient to disturb judicial mind to reach at proper conclusion as which one of both parties was telling the truth and who was telling lie. In the absence of true motive and because the appellants have remained in death cell/cage for a longer duration therefore, on this ground too, the appellants deserve lenient treatment in the matter of sentence as on this point our view is now a consistent one.
4. Even if the case is stretched much in favour of the prosecution on the strength of solitary statement of Mst. Rukhsana Munawar, the injured witness, the appellants' conviction can only be maintained to the extent of the second tragedy/incident where Munawar Ali, Tasawar Ali, Mst. Amin Bibi and Raza Abbas were clone to death and she got injured while with regard to the first episode the evidence is so cryptic and infirm that neither the complainant nor the other witnesses could be believed and relied upon to record conviction on a capital charge. Therefore, in my view, the appellants are just liable to conviction for causing murder of Munawar Ali, Tasawar Ali, Amin Bibi and Raza Abbas and they are also liable to be convicted u/s. 324 read with section 337-E(iii), PPC, however, the appellants' case is not of the nature in view of the peculiar facts to award them death sentence, thus to firmly secure the ends of justice the death sentence(s) on four counts are reduced to life R.I. on (4) counts in addition to the sentence of 7 years' R.I. u/s. 324, PPC and "Daman" u/s. 337-E (iii), PPC.
5. Accordingly, the death sentence is reduced to life imprisonment on four counts with the sentence of 7 years' R.I. and one year with compensation of "Daman" beside they shall pay Rs.
2,00,000/- each to the LRs. of each one of the four deceased or in default thereof to suffer six months' S.I. on each count. However, the substantive sentences of imprisonment on each count and the one awarded u/s. 324 read with S. 337-E(iii) shall run concurrently. They are also held entitled to benefit of S. 382 B, Cr.P.C.