1. Qazi Muhammad Amin Ahmed, J.--Ismail Parvez Minhas, appellant herein, is in receipt of a guilty verdict, returned by a learned Judge Anti-Terrorism Court-I, Rawalpindi Division Rawalpindi; he stands convicted on two counts of homicide under Section 302 (b) of the Pakistan Penal Code, 1860 and sentenced to death on each with compensation of Rs,500,000/- or to undergo six months simple imprisonment in the event of default; convicted under Section 7(a) of the Anti-Terrorism Act, 1997, he is sentenced to death on two counts as well with a fine of Rs,200,000/- on each or to undergo six months simple imprisonment in default of payment thereof; he is also convicted under Section 324 of the Code ibid and Sections 7 (b),(h)&21-L of the Act ibid and sentenced to ten years rigorous imprisonment on each count along with fine that ranges from Rs,50,000/- to Rs, 100,000/- or six months simple imprisonment in default of payment thereof.
2. 2.Prosecution case is founded upon statement. of Mian. Mehmood Ahmad (PW-15) recorded by Nawaz Khan, Inspector (PW-16) in Combined Military Hospital Rawalpindi at 10:15 p.m.-on 3-22007.
3. According to the complainant, he along with his family lived in house No, 22-B, Lane-7 Gulistan Colony Rawalpindi and rented its upper portion to the appellant in May, 2006; tenancy terminated in the wake of personal need and the appellant shifted his family to some other place; on the fateful day, he was busy in moving household articles in an Army truck bearing No, BA-867154 when undertook to inspect the premises jointly with the complainant, so as to settle any damage from the security amount deposited with him; he returned at 4:30 p.m. and asked the complainant to accompany him upstairs to inspect the damage. The complainant sent his son Major Faisal Mahmood and son-in-law Major Kashif Riaz, hereinafter referred to as the deceased, to accompany the appellant for inspection and settlement; a short while later, gun reports attracted the complainant and as he came out, the appellant came across him with a pistol in his hand, exhorting that he had done away both with his son and son-in-law; as he attempted to flee from the scene, the complainant tried to apprehend him; escaping fire shots, the complainant grappled with the appellant, he was thrown on the ground and dealt multiple butt blows; this happened within the view of Lance-Naik Muhammad Idrees and Signalman Naveed, Akhtar, who had accompanied the appellant on the Army truck; the complainant went upstairs to see his son and son-in-law in a pool of blood; rushed to the Combined Military Hospital, they were pronounced dead. Motive for the crime is demand for compensation about the damaged articles.
4. ' Dr. Manzoor Ahmad Sahi (PW-12) medically examined the complainant as well as the deceased; the complainant was noted to have seven injuries comprising of stitched wounds and a lacerated wound along with complaint of pain on left shoulder, caused by blunt weapon within preceding eight hours; he was examined at 12.10 a.m. on 4-2-2007; the injuries were kept under observation.
5. Major Kashif Riaz, 32, was examined at 12:15 a.m. same night; there were three entry wounds on left side of neck and anterior aspect of right shoulder with two exits; injuries on the neck measured 0.5 x 0.5 cm whereas wound on the right shoulder was 1 x 1 cm. Blood vessels, cervical vertebra and right lung were damaged; collective impact led to the hypovolemic shock and was blamed as cause of death; according to the Medical Officer, injuries were sufficient to cause death in the ordinary course of nature, occurred immediately; duration between postmortem and death was estimated within 5 to 6 hours. Major Faisal Mahmood, 34, received three fire shots on left side of chest below left nipple, right scapular bone on the back and on the occipital region. On dissection, right lung & liver were found damaged; the death was collective impact, of injuries involving vital organs i.e. right lung and liver, generating hypovolemic shock and thus resulting into death each being sufficient to cause death in the ordinary course of nature which was immediate; time between death and post-mortem was reckoned as 6 to 7 hours.
6. During spot inspection, Karim Nawaz, Inspector/SHO (PW-16) collected blood from the venue as well as 13-casings from inside the room as well as the staircase, two passports and I.D. card, etc. secured vide inventory; he also took investigative steps of formal nature that included recording of statements of the witnesses as well as preparation of site-plan Ex.PY; despite repeated raids, he could not arrest the accused during his stay at the police station. The appellant was proceeded against and a proclamation Ex.PE was accordingly issued by the learned Special Judge. Syed Azhar Hussain, SI (PW-17) finally succeeded to arrest the appellant on 29-11-2007; on his disclosure, 30- caliber pistol (P-19) was recovered on 9-12-2007; according to forensic report (Ex.CW-1/A), confirmed by Dr. Aamir Ali (CW-1), it was found wedded with casings dispatched way back on 102-2007 through Noor Ahmad/C (PW-3); indicted on 10-6-2014, the appellant claimed trial, pursuant whereto, prosecution produced as many as seventeen witnesses besides reliance upon forensic reports; of them, Mian Mahmood Ahmad (PW-15) furnished details before and immediately after occurrence as well as his encounter with the appellant; he is corroborated in these details by Naveed Ahmad, Signalman (PW-6) as well as L/NK Muhammad Idrees (PW-7); they accompanied the appellant on the Army truck to collect the luggage; they constitute the mainstay of the prosecution case. The appellant confronted prosecution evidence with a story of sudden flare-up under provocation and blamed the deceased for being aggressive in the first place; he, however, declined to be his witness in disproof of the charge while opting to adduce defence by summoning Director Judge Advocate General Branch with some documents, a request declined vide order dated 9-10-2013. Unimpressed by the position taken by the appellant, the learned trial Judge proceeded to convict and sentence him as referred to above vide the impugned judgment, wires whereof, are being challenged through Crl. Appeal No. 310 of 2014; State seeks confirmation of death penalty vide Capital Sentence Reference No. 11T of 2014; these are being decided together through this single judgment.
7. 2A. Learned counsel for the appellant contends that there is no direct evidence to frame the appellant with the charge, as none witnessed what actually happened in the room upstairs; that Mian Mahmood Ahmad (PW-15) is not worthy of reliance for the reason that there was no occasion or earthly reason for the appellant to share . with him details of the occurrence; that even on stated facts, mischief of Section 7 of the Act ibid was not attracted and as such the trial conducted is coram non-judice and the case merits to be remitted for trial in regular jurisdiction; alternately it is argued that something appears to have occurred all of a sudden, seemingly instigated by no other than the deceased and as such the sentence awarded is excessive and harsh. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant defended the impugned judgment on the ground that prosecution with the help of confidence inspiring evidence drove home charge beyond reasonable doubt; that the appellant acted in a brutal and callous manner and took lives of two innocent persons in their prime youth and thus struck terror in the vicinity, deserving no leniency; he prayed for confirmation of death penalty.
3. Heard. Record perused. -
4. It goes without saying that the witnesses did not see the appellant while firing upon the deceased. nonetheless, visual observation is not the only method to establish a criminal charge. A web of circumstances is hovering upon appellant's culpability; his tenancy and vacation of premises are common grounds; in a torturous and embarrassingly lengthy cross-examination, appellant's presence is admitted at the spot, albeit with a different story; he left the premises to offload goods and came back within the view of Mian Mehmood Ahmad (PW-15); Naveed Akhtar Signalman (PW-6) and L/NK Muhammad Idrees (PW-7) accompanied him in the detour; all of them unanimously pointed their accusing finger on the appellant, as they saw him going upstairs to return briefly thereafter with a weapon in his hand in the wake of gun reports; PW-6 & PW-7, Army personnel, are most independent and natural witnesses; presence of Mian Mehmood Ahmad (PW-15) being an inmate as well as injured cannot be doubted. No one was at the scene to the exclusion of the appellant; his earlier departure, return and escape with a gun in his hand after subduing the complainant leaving two dead bodies in a pool of blood for a motive alleged in the crime report are the facts that form part of the transaction that came about at relevant time; seizure of blood and crime empties from the scene run in continuation thereof. A combined reading of Articles 19, 20 & 21 of the Qanun-e-Shahadat Order, 1984 provide ample space to admit the above circumstances as formidable evidence to sustain the charge. While confronting the complainant in the witness-box, the appellant took the following plea: "It is incorrect to suggest that an altercation took place between me and accused Ismail during the check up of the damage. It is also incorrect that when I gave slaps and kick blow to Capt. Ismail, he picked up some object and caused me injuries with that during the assessment of the damage. It is incorrect to suggest that my hue and cry attracted my son Faisal who rushed to the floor rented to accused Ismail, Capt. Rtd. and when wanted to fire shot on the accused, the later grapped with him. It is further incorrect that incidentally Kashif my son-in-law reached my house then and there by chance and when learnt about the situation, he also went to the said floor of the house and started firing on Ismail accused. 'It is incorrect that upon this accused picked up revolver of Faisal deceased and in self defence fired shots on Kashif. It is incorrect that the shot fired by Kashif incidentally hit Faisal deceased and in return in self defence shots of the accused hit 'Kashif and that in this way unfortunately the two individuals lost their life because of the nefarious attitude of me. "
8. One may find it really hard to buy the story; being preposterous, it merits outright rejection when juxtaposed with the evidence led by the prosecution. Hapless witnesses were cross-examined at inordinate lengths and each question merely added insult to injuries, however, they returned unscathed from the witness-box. Mian Mehmood Ahmad (PW-15), aged 70, who lost his son and son-in-law in their prime youth was subjected to a grueling cross-examination, spreading over eighteen pages; this illustrates complete lack of control by the learned trial judge to properly regulate the proceedings. Practice of prolonged cross-examination for the purpose of leading a witness into error has been deprecated by the Supreme Court of Pakistan in Sher Muhammad & 2 others us. The State (PLD. 1995 S.C. 758) and Mudassir alias Jimmi us. The State (1996 SCM R 3), It is a bounden duty cast upon the trial Court to shun with full force uncharitable treatment of a witness deposing under oath in aid of justice. Casings secured from the spot dispatched ,much earlier than appellant's arrest were found wedded with pistol (P49) recovered at his instance and thus, prosecution on all sides, established the charge against the appellant to the hilt beyond a shadow of doubt, Consequently, his conviction and sentence on both counts of homicide as well as attempted murder are maintained as there is no element of mitigation.
9. Insofar as appellant's conviction under Section 7 along with allied charges under the Anti Terrorism Act, 1997 is concerned, it requires a serious reconsideration. The occurrence took place inside a residential premises and bone of contention between the parties is a dispute arisen out of terms and condition of a tenancy. Though the loss suffered by the family is enormous and concomitant pain and anguish abiding, nonetheless, the calamity does not attract mischief of Section 7 of the Act ibid which essentially relates to the use or threat designed to coerce and intimidate or overawe the Government or the public or a section of public or community or sect or population or an international origination or create a sense of fear or insecurity in society; the crime has no religious or sectarian overtones; both the deceased though serving Army officers were on leave, thus, appellant's conviction under Sections 7(a),(b),(h)&21(L) of the Act ibid are set aside. Reliance is placed in the case of Abdul Nabi vs. The State (2017 SCM R 335), relevant portion whereof is advantageously reproduced:- the case in hand was not a case of terrorism but was a case of private offence committed in secrecy. The "design" or "purpose" provided by Section 6 of the Anti Terrorism Act, 1997 were non- existent in the present case and apparently there was no intention on the part of the appellant to create a sense of fear or insecurity in the public at large."
10. With the above modification, Crl. Appeal No. 310 of 2014 is disallowed. Capital Sentence Reference No. 11-T of 2014 is answered in AFFIRMATIVE and death sentence is CONFIRMED.
11. As a natural corollary of findings above, W.P. No. 2716 of 2014 stands dismissed.