NASIR IQBAL @ NASRA and anothers vs The STATE

ORDER

' IQBAL HAMEEDUR RAHMAN, J.---Through this judgment we intend to decide all the three listed appeals. Criminal Appeals Nos.788 and 789/2006 have been filed by the appellant Nasir Iqbal @ Nasra which arise out of the judgment dated 30.05.2006 whereas Criminal Appeal. No,433/2011 has been filed by the appellant Muhammad Ashraf @ Bau which arises out of the judgment dated 29.07.2009. Both the impugned judgments have been passed by the Lahore High Court, Lahore in Criminal Appeals Nos.1993/04 and 1410/2006 wherein by upholding the judgments of the trial Court appeals of both the appellants have been dismissed.

2. The brief facts of the case are that FIR No,555/2000 had been lodged by one Subedar Muhammad Asghar (Complainant) stating therein that on 12.06.2000, which was the date of hearing of murder case of Naveed Akram (nephew of the complainant) before Mr. Sohail Ahmad Nasir, Additional Sessions Judge, Gujrat, he along with Muhammad Afzal and Fayyaz Hussain after reaching Shaheen Chowk, Gujrat City were waiting there for their companions namely Liaquat Ali, Amjad, Muhammad Riaz, Pervaiz Elahi and Muhammad Ashraf with an intention to attend the hearing of the said case together and at about 7:15 a.m. When their companions Liaquat Ali etc. Reached there in Car No,PRE-7001 being driven by Muhammad Riaz, all of a sudden the appellants along with their 6 co-accused namely Tahir, Bahadar, Qaiser, Imran @ Billu, Nadir and Zafarullah, all of them armed with lethal weapons, emerged there and started indiscriminate firing which resulted death of Liaquat Ali, Amjad, Muhammad Riaz, Pervaiz Elahi and Muhammad Ashraf and thereafter, some of the accused while resorting to aerial firing, boarded in Car No,LOF/3506 (white colour) decamped towards Lala Mousa while some of them, on foot, towards Abadi. The occurrence is stated to be witnessed by the complainant along with his companions. The motive behind the occurrence is stated to be the murder case of Naveed Akram (nephew of the complainant) which was registered against the accused party vide FIR No,778/98 under sections 302, 148, 149, P.P.C. At Police Station Kunjah, District Gujrat.

3. Although all the accused persons of this case have been nominated in one FIR but due to abscondance of some of them, their trial has been conducted separately. Accused Ali Bahadar, Asif @ Pappu, Muhammad Ashraf son of Allah Ditta, Qaiser and Zafarullah were tried together and at the conclusion the trial Court vide its judgment dated 2.10.2001 while acquitting Ali Bahadar, Asif @ Pappu and Muhammad Ashraf son of Allah Ditta convicted Qaiser and Zafarullah and sentenced them to death and after dismissal of their appeals by the High Court so as the fate of their petitions as well as review petitions by this Court. Later on, Qaiser, on account of compromise, had been acquitted while Zafarullah had been executed. Accused Nasir Iqbal @ Nasra (present appellant), who was previously declared as P.O. Later on arrested and after his trial by the trial Court, has been convicted and sentenced vide judgment dated 1.12.2004 as under:- i) Death on five counts along with compensation of Rs,50,000/- (under section 544-A, Cr.P.C.) to the legal heirs of each deceased under sections 302/34, P.P.C. Read with 7(a) of Anti-Terrorism Act, 1997.

' Accused Muhammad Ashraf @ Bau (present appellant) along with his co-accused Sultan Ahmad, who were previously declared as P.Os., upon their arrest had been tried and on conclusion Sultan Ahmad, who was charged with the role of abetment/conspiracy, had been acquitted while Muhammad Ashraf @ Bau had been convicted and sentenced by the trial Court vide judgment dated 9.08.2006 as under:- i) Death on five counts along with compensation of Rs,50,000/- (under section 544-A, Cr.P.C.) for each deceased to the legal heirs of each deceased under sections 302(b), 149, P.P.C. Read with section 7(a) of Anti-Terrorism Act, 1997, in default of payment of compensation to further under go S.I. For six months. ii) Three years' RI under section 148, P.P.C.

' Accused Nadir is stated to be expired while Imran @ Billu as well as Tahir son of Sultan are still absconders.

' Both the present appellants being aggrieved by their convictions and sentences approached the High Court by filing appeals, mentioned above, which have also been dismissed through the impugned judgments, hence the listed three appeals.

4. Learned counsel for the appellants asserts that according to the FIR there were three eye- witnesses of the occurrence, two of them namely Subedar Muhammad Asghar, complainant (PW.15) and Muhammad Afzal (PW.16) have been produced while Muhammad Fayyaz has been given up; that both the eye-witnesses are stated to be present at the site of occurrence and being known to accused persons could not have been spared by them to be witnesses of the instant occurrence as such in all probability they were not present at the site of occurrence; that no specific role has been attributed to any of the accused persons as such their evidence becomes more doubtful when on the basis of such evidence a number of co-accused namely Ali Babadar, Asif @ Pappu and Muhammad, Ashraf son of Allah Ditta have been acquitted by the trial. Learned counsel further asserts that the role attributed to the acquitted co-accused Ali Bahadar was the same as to that of the present appellants as such their case cannot be distinguished from that of the acquitted co-accused. Learned counsel states that abscondance of the appellants in the circumstances cannot be made a ground for convicting them. Learned counsel contends that it has been stated in the FIR that indiscriminate firing had been made upon the deceased persons and according to the medical report there are multiple entry wounds on the body of the deceased persons but it is also, on the record that only five empties have been recovered from the place of occurrence which makes a serious dent in the prosecution version and the ocular account of the eye-witnesses are not substantiated by the circumstantial evidence as such the case does not fall within the purview of common intention because there is no evidence with regard to any pre- mediation before the occurrence as such there was no motive on the part of the appellants to participate in the occurrence. It is further asserted that there is no evidence on the record that the eye-witnesses were to meet the deceased persons at Shaheen Chowk and thereafter, to proceed towards the Court which is at a considerable distance i,e, 3-1/2 kms. From the place of occurrence and they by taking cover behind the PCO and Cart are all made up as such they are to be considered as chance witnesses and as stated that the place of occurrence is a busy chowk but no independent witness has been produced there from. Learned counsel lay stress that the recovery of Kalashinkov from the appellant Nasir Iqbal @ Nasra after four years is immaterial because he is just a servant of Sultan and used to go along with him during the investigation of murder case of Naveed Akram and on account of this grudge he has falsely been involved in this case as such he had no enmity with the complainant party. That promptness in lodging of the FIR i,e, within 1-1/2 hours of the incident shows false implication and tnala fide on the part of the prosecution. That initially it had considered to be a case of dacoity by the police as such section 7(a) of the Anti-Terrorism Act, 1997 had been invoked, the case is based upon personal enmity which does not attract section 7(a) of the Act ibid. Learned counsel laid stress that no case property has been produced thus the case of the prosecution becomes vitiated. Learned counsel while concluding his arguments, in alternative, has prayed that if the appellants are not entitled to a clean acquittal, in the circumstances, atleast deserve reduction in the quantum of their sentences as there are enough mitigating circumstances for the same.

5. On the other hand learned counsel for the complainant states that it is a broad daylight occurrence; that the FIR has been promptly lodged i,e, within 45 minutes of the occurrence.

Learned counsel states that it is a brutal murder of five innocent persons who were the main witnesses in the previous murder case of Naveed Akram (previously lodged against the accused persons) and the accused party had in categorical terms extended threats that if they did not compromise in that case then they would have to face dire consequences; that appellant Nasir Iqbal @ Nasra was actively participating in the investigation of the previous case; that all the accused persons with common intention had attacked upon the deceased persons who were proceedings towards the Court to attend the hearing of the previous case. Learned counsel lay stress that non-recovery of all the empties is on account of bad investigation and more so, when the place of occurrence is a busy chowk the recovery of all the empties was impossible; that firing had been made from the car by the accused persons as such recovery of all the empties was not possible because they fled away in the said car after committing the crime. Learned counsel further stales that both the eye-witnesses are confidence inspiring and fully corroborated the prosecution version and the prompt lodging of the FIR rules out any possibility of substitution or consultation to falsely rope in or involve the accused persons; that lodging of the FIR is straightforward and a true version has beer} given in the hustle bustle of the occurrence how it is possible to describe the specific role of each accused person rather given specific role in such circumstances would imply false implication and consultation. Learned counsel further states that how could it be possible for the eye-witnesses who were taking cover behind the PCO and Cart to assign specific role to any of the accused persons. That the eye-witnesses faced lengthy cross- examination but remained unshaken; that the motive of the incident has been fully proved that all the deceased persons have been done to death on account of non-effecting of compromise with the accused persons. Learned counsel asserts that medical version fully supports the ocular account; that the appellants are directly nominated in the FIR and they remained P.Os. For a considerable period of more than five years. Learned counsel lay stress that the Courts below have rightly convicted and sentenced the appellants to death by keeping in view the brutality and high handedness of the appellants in committing the murder that they do not deserve any leniency whatsoever as such there is no mitigating circumstance which would afford the appellants reduction in quantum of their sentences. At the end, in support of his arguments, the learned counsel placed reliance on the following cases:- 1) Shahbaz Khan alias. Tippu and others v. Special Judge Anti-Terrorism Court No,3, Lahore and others (PLD 2016 SC 1)

2) Muhammad Javed v. The State (2015 SCMR 864)

3) Dadullah and another v. The State (2015 SCMR 856)

4) Hamid Mahmood and another v. The State (2013 SCMR 1314)

5) Mumraiz v. The State (2011 SCMR 1153)

6. Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841)

7) Mst. Bismillah and another v. Muhammad Jabbar and others (1998 SCMR 862)

6. The learned Additional Prosecutor General while adopting the arguments of the learned counsel for the complainant states that medical evidence shows blackening on the entry wounds as it has been made for a very close range. It is asserted that the appellants have committed a heinous offence at a public place in a desperate manner which fully attracts application of section 7(a) of the Anti-Terrorism Act, .1997 and further both of them are directly involved in the case.

7. We have heard the arguments of the learned counsel for the parties and have also perused the available record as well as the judgments of the fora below. The listed appeals arise out of a crime report of a gruesome and brutal murder of five persons committed in broad daylight on 12.06.2000 at 7:15 a.m. On the road near. Shaheen Chowk, Gujrat and was reported through a promptly lodged FIR No,555/2000 within one hour which had duly been witnessed by the eyewitnesses namely Subedar Muhammad Asghar (PW.15) and Muhammad Afzal (PW.16) along with one Muhammad Fayyaz. Prior to the instant murder of five deceased persons, namely Liaquat Ali, Amjad, Muhammad Riaz, Pervaiz Elahi and Muhammad Ashraf, it is not denied that nephew of the complainant (sister's son namely Naveed Akram) was murdered by the accused party and case vide FIR No,778/1998 under sections 302, 148, 149, P.P.C. Was registered on 3.10.1998. The trial of the same was in process and was being conducted .By the Additional Sessions Judge, Gujrat. On the date of occurrence i,e, 12.06.2000 which was the date of hearing of the said murder case, and according to the prosecution case, the complainant Subedar Muhammad Asghar (PW.15) and Muhammad Afzal (PW.16) while on their way towards Sessions Court stopped at Shaheen Chowk and kept waiting for five deceased persons, who were the prosecutions witnesses in the said murder case, and, as planned, after meeting them at Shaheen Chowk, all of them, were to proceed towards Sessions Court to attend the proceedings of the murder case of Naveed Akram together.

All the five deceased persons reached there in Car No,PRE-7001 which was being driven by Muhammad Riaz deceased and when they reached at Shaheen Chowk both the appellants along with their other co-accused, all of whom came in the car, started indiscriminate firing on the car of the deceased persons which resulted death of all the five deceased persons at the place of occurrence. The motive for committing such a brutal murder of five persons was the murder case of Naveed Akram wherein on the last date of hearing i,e, on 5.06.2000 the accused persons i,e, appellants and others had extended threats to the complainant party to enter into compromise by the next date of hearing which was 12.06.2000 otherwise they would be done to death which they refused to yield to their demand for compromise, as a result, with common intention the appellants along with their co-accused committed Qatl-i-and of all the five witnesses of the complainant party. We on our independent re-appraisal of evidence in particular of the complainant Subedar Muhammad Asghar (PW.15) and Muhammad Afzal (PW.16), eye-witnesses of the case, have found that they have narrated the occurrence in a most natural manner. Both of them claimed that they witnessed the occurrence. They on 12.06.2000 were to attend the hearing of murder trial in respect of Naveed Akram case along with five deceased persons before the Additional Sessions Judge, Gujrat. Both of them de-boarded the bus along with one Muhammad Fayyaz at Shaheen Chowk and as planned was waiting for their companions and on their arrival the appellants along with their co-accused armed with firearms came there 'and started firing upon them who succumbed to their injuries in the car and thereafter, they decamped from spot. The scrutiny of their evidence does not suggest any exaggeration rather not assigning any specific role to the accused persons reflects the truthfulness of their testimony when in hustle and bustle of the occurrence which has been committed within a few seconds or minutes it is humanly impossible to assign specific role and giving A detailed description of the same would rather infer or input to have been made out to falsely rope the accused persons, as such lodging of the FIR in straightforward manner in the fact and circumstances of the case rules out any possibility of falsely roping the accused persons rather the lodging of the FIR in a straightforward manner shows that it carries the true version.

Moreover, both the eye-witnesses were subjected to lengthy cross-examination but nothing favourable to the accused/appellants has been extracted. The testimony of both the eye- witnesses is confidence inspiring and from the facts and circumstances of the case, as mentioned above, they cannot in any manner be considered to be chance witnesses. Moreover, mere relationship or enmity is not always enough to declare a witness to be partisan or interested witness when his testimony is confidence inspiring and trustworthy. The motive of the instant occurrence is fully established atleast to the extent of appellant Muhammad Ashraf being accused in the previous murder case of Naveed Akram who was extending threats to the complainant party to effect compromise and being proclaimed offenders such like modus operandi B are usually adopted to clear themselves and to get rid of the murder cases and in the given circumstances the prosecution has amply succeeded to establish motive part of occurrence atleast against appellant Muhammad Ashraf. Further we have observed that the medical evidence corroborate the ocular account. Recoveries have been effected which also corroborate c the prosecution version. The parties were known to each other and FIR was promptly lodged all this rules out any possibility of substitution or consultation to falsely rope in or involve the accused persons. The occurrence was an extreme act of brutality in which five persons were done to death and when prosecution has established its case, even if some lacunas are found in the investigation of the case the same does not deter us from upholding the conviction of the appellants. It would not be out of place to mention here that in the instant, case the co-accused Qaiser and Zafarullah had been convicted and sentenced to death and this Court dismissed their petitions for special leave to appeal on account of which sentence of death of Zafarullah has already been executed and the eyewitnesses are the same as in the case of the appellants.

8. In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as well as the recoveries of crime weapon and the motive has fully been proved as such in our view no interference is required in conviction of the appellants.

9. In light of the above, we found that prosecution has fully succeeded to prove its case against appellant Muhammad Ashraf whereas in the case of Nasir Iqbal @ Nasra we found certain distinguishing factors which give rise to certain mitigating circumstances, such as appellant Muhammad Ashraf having a direct motive had eliminated the deceased persons being an accused in the murder case of Naveed Akram as the deceased were not prepared to enter into a compromise with him while appellant Nasir Iqbal @ Nasra was not a nominated accused in the said case and.Being a servant of Sultan used to go along with him during the investigation of the said case as such in his case the trial Court had come to the conclusion that motive could not be attributed to him, the relevant portion whereof is re-produced herein for ready reference:- "The motive for the instant occurrence as reported in Farad Biyan Ex.PM is that trial of murder of Naveed Akram sister's son of the complainant (case FIR No,778/1998) was pending in the Court of Mr. Sohail Nasir, learned ASJ, Gujrat. Reportedly on 5.6.2000 (last date of hearing) Asif alias Pappu and Muhammad Ashraf, co-accused of the present accused threatened the present complainant party to effect compromise in that murder occurrence (of Naveed Akram deceased) otherwise, rest of the members of the complainant party would be done to death. The complainant party had not yielded to their request, so all the nominated accused due to non-effecting of compromise in the earlier murder occurrence, in furtherance of common intention committed Qatl-i-amd of five members of complainant party. PW-15 Muhammad Asghar and PW-16 Muhammad Afzal, eye- witnesses have fully narrated the motive part of the occurrence but both of them during cross- examination admitted that the present accused had no previous enmity with any of them or the complainant party, thus the motive is not established against the present accused but as per recent precedent nonexistence of motive is not fatal to the prosecution case, if from the ocular account, the guilt of the accused is established. Reliance can be placed on case law reported as Muhammad Aslam v. The State 2001 SCM R 223, Supreme Court of Pakistan." (emphasis provided)

Further, it has been observed that the recovery of Kalashinkov from his possession after a considerable long period of four years also makes his case distinguishable and in this regard the trial Court has also disbelieved the recoveries made to this extent, relevant part of the same is reproduced as under:- "46. Recovery memo Ex.PAB pertains to 15 photographs of car PRE/7001 in which all the five deceased met death at the hands of the accused party but photo-graphs are not appended with this recovery memo. So, I dis-believe this piece of evidence.

47. 'PW12 Shahzad Younas constable and PW23 Nazar Muhammad SI have stated that on 24.2.2004, Nasir Iqbal alias Nasara accused in custody in response to the interrogation led to the recovery of Kalashinkov P14 from his residential house, on un-loading the same live bullets P15/1-11 were also secured. P14 and P15 were secured vide recovery. Memo Ex.PL attested by Shahzad Younas C, and Riaz (given-up PW). PW13 Umar Hayyat ASI has stated that on 29.2.2004, he had collected the recovered Kalashinkov from P.S. Kunjah and produced the same before SHO of P.S. Civil Lines. PW20 Zulfiqar Ali Moharrar had received sealed parcel of this weapon of offence and on 8.4.2004 delivered the same to PW18 Muhammad Iqbal constable for its deposit in the office of Forensic Science Lab. Lahore. PW18 Muhammad Iqbal had affirmed that he had deposited the said parcel in the said office on 8.4.2004, Negative report of Forensic Science Lab. Lahore is Ex.PAD/I. PW20 Zulfiqar Ali HC, during cross-examination has conceded that parcel of crime empties was summoned from Forensic Science Lab. Lahore on 6.4.2004 and thereafter the said parcel was again sent to the said office after recovery of Kalashinkov. In view of this statement of PW20 and negative report of Forensic Science Lab. Lahore, this recovery is doubtful and cannot be relied as corroborative piece of evidence." (emphasis provided)

Moreover, Ali Bahadar, co-accused of the appellant, who had also been attributed the similar role as that of the appellant Nasir Iqbal Nasra had been acquitted by the trial Court. In the light of the above mentioned distinguishing factors, involved in his case, we consider the same as mitigating circumstances for reduction of his quantum of sentence.

10. For what has been discussed above, Criminal Appeal No,433/2011, filed by the appellant Muhammad Ashraf is dismissed whereas Criminal Appeals Nos.788 and 789/2006, filed by the appellant Nasir Iqbal @ Nasra are partially allowed while maintaining his I conviction his death sentence is converted into imprisonment for life.

11. Before parting from this judgment it has been noticed with grave concern that two of the nominated accused of this case namely Tahir and Imran alias Billu have still not been apprehended by the police. The concerned DPO is, therefore, directed to submit a comprehensive report about their failure in apprehending the above nominated accused persons. Further he himself shall ensure arrest of the said two absconding accused. These are the reasons of our short order of even date which reads as under:- "We have heard arguments of the learned ASCs for the appellants, the complainant in the case and learned Additional Prosecutor General Punjab. For the reasons to be recorded separately, Criminal Appeal No,433 of 2011, filed by Muhammad Ashraf alias Bau, is dismissed. Criminal Appeals Nos. 788 and 789 of 2006, filed by Nasir Iqbal alias Nasra, are partly allowed to the extent that his death sentence is converted into life imprisonment.

2. During hearing of these appeals, we have noted this fact with grave concern that still two of the nominated accused, Tahir and Imran alias Billu, in FIR No, 555 dated 12.06.2000, registered at Police Station Civil Line, District Gujrat, have not been apprehended by the police. Let the concerned District Police Officer submit a comprehensive report about their failure to apprehend the said nominated accused. Further, he himself shall ensure arrest of these absconding accused."