QAZI MUHAMMAD AMIN AHMED, J.---Chak No, 129/15-L, a ,small locality within the limits of Police Station City Mian Channu of District Khanewal was rocked on 13.07.2009 at 9.40 a.m. When a massive blast occurred in the middest of the village, demolishing dwellings, blowing up their roof tops resulting into multiple deaths and injuries to the inhabitants as well as their cattle. Muzaffar Ali Shah, S.I. (PW-55) who was on patrol duty in the area, after hearing the explosion, reached the spot and reported the incident through complaint (Ex.P.B.B.B.B/1), converted into formal FIR (Ex.P.B.B.B.B) by Maqsood Ahmad, SI (PW-5).
Prosecution story narrated in the First Information Report is that on the fateful day i,e, 13.07.2009 Muzaffar Ali Shah, S.I/SHO (PW-55) alongwith Zulifqar Ali, S.I., Zafar Iqbal, S.I., Zia Ullah 199/C, Muhammad Usman 990/C, was on patrol duty in the official van. When they heard sound of a massive blast, whereupon, they reached the spot, which was a residential house statedly belonging to Master Riaz Ali, Imtiaz Ali and Muhammad Yousaf sons of Ali Sher. The 1.0. Noted that as a result of the blast, 30/35 houses were demolished, that included building of a Basic Health Centre. Police party, after conveying information to the high-ups started rescue work and found Ali Hassan, Hajran Bibi, Abdullah, Rimsha, Iqra, Asadullah and Ayesha having died at the spot. As many as 30 men and women in injured condition were dispatched to the hospital for medical treatment.
2. On spot inspection, the Investigating Officer found 6 rocket launchers alongwith detonators, two suicide jackets with other parts, 6 rocket fuses, 1 Kalashnikov magazine, 14 Kalashnikov bullets, 2 live bullets of revolver, one safety pin of hand grenade, high quality explosive substance 5 K.G., Number plate No 1970/MLB, pieces of metal and plastics, 2 gloves. According to the complaint M/s. Riaz Ali, Imtiaz Ali and Muhammad Yousaf residents of the Chak alongwith their unknown companions who belonged to a proscribed organization had stockpiled the explosive cache which went off resulting into colossal loss of life and property. The remains of the cache were secured vide memo.
Ex.P.G.G.G. The floor of the house where explosion had occurred was dugged and as many as 108 articles comprising of militant literature, explosive substances, live bullets, cheque books, I.D. Cards etc. Were recovered vide memo. Ex .P .F . F. F . Ex . P. V.V.V.V is report of Bomb Disposal Technician in respect of recovered explosive articles. Site plan without scale Ex.P.J.J.J.J.J depicts the spot. As a result of the blast, 13 persons lost their lives whereas 30 survived their injuries. The dead included a real brother and sister of the appellant. According to autopsy reports and medico-legal certificates deaths and injuries were result of a blast.
3. Initial investigation was conducted by Muzaffar Ali Shah, S.I. (PW-55), who took investigative steps of formal nature such as recording of complaint (Ex.P.B.B.B.B/1), spot inspection, recovery from the spot and dispatch of the injured persons and the dead to the hospital. Ghulam Abbas, Inspector/SHO (PW-60) took over the investigation on 19.07.2009 and arrested Imtiaz Ali on 28.10.2009; he obtained non-bailable warrants of arrest for co-accused Riaz, Fayyaz, Rafique, Shaukat, Bilal and Nasir. Riaz Ali-appellant was arrested on 23.12.2009 followed by Fayyaz Ahmad on 06.05.2010.
4. Firstly, Imtiaz Ali and Riaz Ali accused were sent to face trial, they were indicted on 32 counts on 25.03.2010 to which they pleaded not guilty and claimed trial. After arrest of Muhammad Fayyaz, charge was framed afresh on 51 counts on 15.06.2012. According to the record, Nasir, Rafique, Bilal and Shaukat accused stayed away from law. However, subsequent to decision of the case in hand, Muhammad Rafique accused was arrested and faced trial resulting into his acquittal vide judgment dated 26.11.2014. Insofar as, Imtiaz, Riaz, and Muhammad Fayyaz accused are concerned, prosecution besides relying upon forensic reports produced as many as 61 witnesses. Muhammad Zaigham Patwari was examined as a Court Witness. Appellant Riaz Ali took the plea which is reproduced below:--- "On 13.07.2009 I, my brothers namely Imtiaz, Muhammad Yousaf alongwith my sister namely Fatima and other family members were present at home situated at Chak No, 129/15-L Mian Channu We heard the explosion voice and our house was demolished, I, Imtiaz, Muhammad Yousaf and Fatima became injured. Fatima Bibi succumbed to the injuries at the spot after a short-while. I, Imtiaz & Yousaf were shifted to THQ Hospital, Mian Channu. I, Imtiaz and Yousaf were arrested from the THQ Hospital Mian Channu by police on the same day. Yousaf died due to injuries after some day, due to lack of proper treatment. I, Imtiaz remained in illegal police custody. My mother namely "Hameeda Bibi" filed a W.P. No, 9155/ 2009 for the recovery. During the pendency of the writ petition, the RPO Multan appeared before the Court. So, I was produced before the Court by the Police. I was involved due to suspicion and residing at Chak No, 129/15-L, near the place of explosion. Complainant is SHO & Inspector of police station City Mian Channu who just to show the KARWAI to the high-ups, involved me in this case."'
Imtiaz (since acquitted accused) took identical plea as that of appellant Riaz Ali.
Position taken by the Muhammad Fayyaz is as under:- "I am the resident of Chak No, 19/8-BR Tehsil Mian Channu, District Khanewal. Riaz co-accused is my friend. The local police involved me in this case due to this friendship. When police arrested Muhammad Riaz & Imtiaz, I approached to the police station City Mian Channu, where, complainant/SHO arrested me, I remained in police custody illegally for about 2/3 months. After this I was released from police custody. I filed pre-arrest bill due to apprehension of my arrest again and after dismissal of pre-arrest bail I was arrested".
5. Upon conclusion of the trial, learned Judge, Anti-Terrorism Court No-II, Multan (Camp at New Central Jail, Multan) vide judgment dated 20.06.2012 acquitted Imtiaz and Muhammad Fayyaz co- accused whereas proceeded to convict Riaz Ali, hereinafter referred to as the appellant, as under:- -- Under Section 302(b), PPC Sentenced to death on 13 (counts) with compensation of Rs, 1,00,000/- to the legal heirs of each deceased u/s. 544-A of Cr.P.C., or in default thereof to further undergo six monthsS.L.
Under Section 7(a) of ATA, 1997 Awarded sentenced to death with fine of Rs, 100,000/- or in default thereof to further undergo two yearsS.1.
Under Section 324, PPC.
Sentenced 5 yearsR.I. On 14 counts for causing injuries to 14 persons with fine of Rs, 5000 on 14 counts each or in case of default thereof to further undergo 2 yearsS.I.
Under Section 3 of the Explosive Substances Act, 1908.
Sentenced to life imprisonment.
Under Section 4 of the Explosive Substances Act, 1908.
Sentenced to 7 years imprisonment.
Under Section 436, PPC.
Sentenced to 10 years R.1 with fine of Rs, 50,000/-or in case of default thereof to further undergo S.I.
For two years.
All the sentences were ordered to run concurrently, however, benefit of Section 382-B, Cr.P.0 was also extended to him.
The appellant has challenged his conviction through Crl. Appeal No, 552/2012 whereas acquittal of co-accused has not been challenged by the State.
6. Learned counsel for the appellant contends that there are material contradictions and discrepancies in the prosecution evidence, in view whereof, impugned judgment involving capital sentence is not sustainable; that conviction of the appellant on the same set of evidence which was disbelieved qua acquitted co-accused cannot furnish basis for his conviction without independent corroboration which is not forthcoming; that there is nothing on the record which could positively establish that premises where blast occurred was owned or possessed by the appellant; that a real brother and a real sister of the appellant died in the blast which fact goes a long way to demonstrate that the appellant lad not conscious knowledge of any explosive substance stored in the premises.
7. On the other hand learned Deputy Prosecutor General has vehemently opposed the appeal and argued that prosecution has been able to prove its case against the appellant beyond a shadow of doubt. According to the learned Law Officer, in the given circumstances, evidence produced by the prosecution is best available evidence which squarely connects the appellant with an awfully heinous crime. It has been argued that 13 innocent persons have lost their lives besides injuries sustained by innocent co-villagers with loss of their properties.
8. We have heard the learned counsel for the appellant and Deputy. Prosecutor General, Punjab and gone through the record.
9. It is an established position that the appellant is a long standing resident of the Chak, a small in habitation, this being so, his occupancy of the premises where blast occurred is proved beyond a shadow of doubt. The dead included his own family members, no other than his real brother and sister. A substantially large number of residents, each hailing from the locality have appeared in the witness-box; they are in unison that blast occurred inside the dwelling of the appellant. Soon after the incident, the floor of the house was dogged by the Investigating Officer and a large cache comprising of explosives ammunition and proscribed literature was unearthed, establishing an independent link between the appellant and the premises occupied by him as well as his future designs. Something went wrong with the consignment setting in a disaster which played havoc in the village. All the witnesses, who unanimously deposed on the occupancy of the premises by the appellant, are confronted merely with adverse suggestions which were categorically denied by them. It is by now well-settled that a suggestion simpliciter denied by a witness does not lead to any conclusion and in order to impeach his credibility, the intrinsic value of his deposition is to be impugned with some incontrovertible factual and evidential basis whereas in the present case, cross-examination on the witnesses whose credentials are unimpeachable remained inconsequential. These witnesses who range from minor children to grown up adults are in a unison in framing the appellant in the incident; some of them sustained serious blast injuries which conclusively established their presence at the spot. At the relevant time From among st them, we would like to refer to the statement of Awais Munir (PW-29) a young boy of 10/11 years of age at the time of incident, which is reproduced below:-- "That on 13.7.2009 I was present in the house of master Riaz Ahmad- accused. I had gone there to study. Female member of the house of accused who was my teacher had sent me to purchase some electric cell. I was returning from the shop at the moment I entered into the courtyard of the house of accused a bomb explosion took place and I was injured. I was taken firstly in the Mian Channu city for treatment then Nishtar Hospital Multan for treatment.
Xxxxxxxx By defence.
It was about 9.00 a.m. When I went to the shop from the house of aroused It was Monday. 3 children while studying there were also present. I alone was sent to purchase the cell. When I went to purchase the cell whole the family members were present in the house. I had gone to shop of one Javed. I returned after about 2 minutes. I cannot tell the date on which the last Eid-ul-Azha was celebrated. Now this is the month of July. When I returned to the house of accused no body was present there. In addition to mine another child in the house of accused was injured who expired after about 5 days".
This witness was medically examined by Dr. Muhammad Asif (PW-1), who noted two lacerated wounds one on the back of his head and second on the middle part of right leg. Evidence of this innocent deponent goes a long way to drive home charge against the appellant beyond a shadow of doubt; he cannot possibly have any grudge or animus against the appellant before whom he bowed in pupilage. The magnitude of the blast and ensuing devastation lead us to the one and only irresistible conclusion that storage of explosive cache was a conscious act of the appellant designed and calculated to commit the act of terrorism. Accidental or unintended ignition of the cache does not absolve him from the consequences of his crime.
10. For the foregoing reasons, we feel no hesitation in placing implicit reliance on the evidence furnished by the prosecution witnesses and hold that the charge against the appellant stands established beyond a shadow of doubt, he has rightly been convicted under Section 7(a) of the Anti-Terrorism Act, 1997, in view of paragraphs (a), (b), (d) & (ee) of Section 6(2) of the Act ibid. Penalty of death inflicted upon the appellant, commensurate with the enormity of offence committed by him.
However, we have given a serious consideration to the question, as to whether the act committed by the appellant was covered under the provisions of Section 3 or Section 5 of the Explosive Substances Act, 1908. For the purpose of convenience, Sections 3 & 5 of the Act ibid are reproduced below:--- "Section-3 Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death or imprisonment for life.
Section-5 Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with imprisonment for a term which may extend to [fourteen years] ".
On overall analysis of the prosecution evidence, as discussed above, it is fully established that the appellant was not actuated by any desire to blow explosive substance under his possession at the given point of time so as to endanger life or cause serious injuries to any property or person, which included his own residential premises as well as close family members; it was mishandling of the cache that resulted into the disaster and those who fell prey were not the intended targets and in fact he was keeping the explosive substance under such circumstances which gives rise to a reasonable suspicion that he does not have it in his possession or under his control for a lawful object within the contemplation of Section 5 of the Explosive Substances Act, 1908. Therefore, in our view, the mischief of the appellant is covered by Section 5 of the Explosive Substances Act, 1908. For the foregoing reasons, we set aside his conviction under Section 3 of the Act ibid and convict him under Section 5 thereof and sentence him to 14 yearsR.I. Alongwith forfeiture of his property. District Coordination Officer, Khanewal shall ascertain information about appellant's property and shall forfeit the same in accordance with law.
11. Likewise, notwithstanding the enormous loss of human lives, the question as to whether deaths occurred in this incident are covered by the definition of Qatl-e-Amd within the contemplation of Section 300 or Qatl-bis-Sabah as defined in Section 321, PPC. Both the above provisions are reproduced below for ready reference:- "Section-300. Qatl-e-Amd. Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his 'act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-e-Amd".
Section 321. Qatl-bis-Sabab. Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit Qatl-bis-Sabab".
In order to bring a homicide within the ambit of culpable homicide amounting to murder/qatl-e- amd there must exist an intention accompanied by an act and knowledge leading towards such imminent danger that must result in all probability to cause death. Intention, act and knowledge within the contemplation of Section-300, PPC must co-exist, driving imminent danger towards the target and in such an eventuality death of an unintended target would also attract the mischief of Scction-300, PPC, however, on prosecution's own showing the storage of explosive cache was not intended to cause death of the victims who fell prey to the explosion nor was there any intention on the part of the appellant to take lives of those, who lived in his neighbourhood including his own brother and sister; they were not the intended targets either. On the contrary, this colossal loss of human lives was the result of an unlawful act, which became a cause of deaths in this case. In dispensation of criminal justice, mens rea is an important factor which is to be gathered from the attending facts and circumstances of each case. We feel no hesitation in holding that appellant never intended to kill his own brother and sister. Devastation ensuing the explosions could not draw distinction between the co-villagers and family members of the appellant. Therefore, in our view, conviction under Section 302(b), PPC is not sustainable as the case of the appellant is covered under Section 322, PPC. Consequently, we set aside his conviction under Section 302(b), PPC and sentences recorded thereunder and convict him under Section 322, PPC on all counts. The appellant shall pay the amount of diyat to the legal heirs of each deceased in accordance with law. Since we have converted appellant's conviction from Section 302(b), PPC to Section 322, PPC for the reasons given above, we acquit him from the charge under Section 324, PPC and set-aside sentences there-under and instead convict him for the injuries sustained by PWs detailed below:-- 1 Maqsood Ahmad.U/Ss. 337-A(ii) & 337- F(v), PPC 2 Waqas Ahmad. U/Ss. 337-A(i) & 337-F(v), PPC 3 Muhammad Javed.U/S. 337-F(iii), PPC 4 Muhammad HussainU/S. 337-A(vi), PPC 5 Muhammad Ashfaq.U/Ss. 337-A(i) & 337-F(v), PPC 6 Faqeer Hassain.U/Ss. 337-A(i) & 337-F(v), PPC 7 Izkar Khan U/Ss. 337-A(i) & 337-F(v), PPC 8 Irfan U/S. 337-A(ii), PPC 9 Awais Munir U/Ss. 337-A(i) & 337-F(v), PPC 10 Ali Raza U/Ss. 337-A(ii) & 337- F(v), PPC 11 Samina Bibi U/S. 337-F(iii), PPC 12 Karim Bibi U/Ss. 337-A(i) & 337-L (ii), PPC 13 Nasreen Bibi. U/S. 337-G(a), PPC 14 Humaira Taj Din.U/S. 337-F(M), PPC 15 Misbah. U/Ss. 337-F(iii) & 337- F(v), PPC On each count under Section 337-A (i), PPC, the appellant shall pay daman of Rs, 25,000/- to each injured and shall also to undergo rigorous imprisonment for two years as Ta'zir. On each count under Section 337-A(ii), PPC, the appellant shall pay arsh which shall be five percent of the diyat to each injured and shall also to undergo rigorous imprisonment for five years as Ta'zir. On each count under Section 337-A (vi), PPC, the appellant shall pay arsh which shall be one half of the diyat to each injured and shall also to undergo rigorous imprisonment for fourteen years as Ta'zir.
On each count under Section 337-F (iii), PPC, the appellant pay Daman of Rs, 20,000/- to each injured and shall also to undergo rigorous imprisonment for three years as Ta'zir. On each count under Section 337-F(v), PPC, the appellant shall pay Daman of Rs, 20,000/- to each injured and shall also to undergo rigorous imprisonment for five years. On under Section 337-L (ii), PPC, the appellant shall pay Daman of Rs, 20,000/- to injured and shall also to undergo rigorous imprisonment for two years. On under Section 337-G (a), PPC, the appellant shall pay Daman of Rs, 20,000/- to injured and shall also to undergo rigorous imprisonment for two years.
12. For the above reasons, we also acquit appellant from Charge under Section 436, PPC, however, his conviction and sentence under Section 4 of Explosive Substance Act, 1908 is maintained.
Sentences shall run concurrently with benefit of Section 382-P, Cr.P.C. With the above modification, appeal filed by the appellant is dismissed. Capital Sentence Reference No, 6 of 2012 to the extent of appellant's conviction under Section 7(a) of the Anti-Terrorism Act, 1997 is answered in AFFIRMATIVE and death sentence awarded thereunder is CONFIRMED.