ASIF SAEED KHAN KHOSA, C.J.--- Criminal Miscellaneous Application No. 335-L of 2019 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main appeal. Disposed of.
Criminal Appeal No. 138-L of 2017
2. Ali Muhammad appellant and many others had allegedly fired at and killed as many as seven persons namely Maham Ali, Umer Hayat, Shaukat Ali, Ghulam Fatima, Rabia Bibi, Rani and Nusrat Bibi in an incident taking place at about 01.30 a.m. on 01 08.1999 in Chak No.356/GB in the area of Police Station Jaranwala, District Faisalabad in the backdrop of a motive based upon bitterness between the parties over an exchange marriage which also involved the wife of Yaqoob co-convict. With these allegations the appellant and his co-accused were booked in case FIR No. 705 registered at the above mentioned Police station during the ensuing morning and after a regular trial the appellant was convicted by the trial court on seven counts of an offence under section 302(b), P.P.C. read with section 14, P.P.C. and was sentenced to death on each, count and to pay compensation besides having been convicted and sentenced for an offence under section 7(a) of the Anti-Terrorism Act, 1997 read with section 34, P.P.C. and section 21-L of the Anti- Terrorism Act, 1997. The appellant challenged his convictions and sentences before the High Court through an appeal which was dismissed and all his convictions and sentences recorded by the trial court were upheld and confirmed.
Hence, the present appeal by leave of this Court granted on 07.03.2017.
3. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.
4.The case in hand involves murder of seven persons during a night and the present appellant was nominated in the FIR as one of the culprits and a specific as well as a general role of firing at the deceased had been attributed to him therein. The eye-witnesses produced by the prosecution, i.e. Muhammad Tufail complainant (PW8) and Abdul Sattar (PW9) had made consistent statements vis-a-vis the role played by the appellant in the incident in issue and the medical evidence had provided sufficient support to the specific allegation levelled against the appellant by the above mentioned eye-witnesses. The appellant had remained a Proclaimed Offender for about fourteen long years. The appellant's brother and co-accused namely Yaqoob had been tried in the absence of the appellant and all his convictions and sentences recorded and upheld by the courts below had been maintained by this Court while dismissing his Jail Petition No. 158 of 2006 on 07.12.2006 "whereafter the death sentences passed against the said Yaqoob co-convict were executed and he was hanged to death. In the said order passed by this Court vis-a-vis Yaqoob co-convict the entire story of the prosecution had been believed and it was found that the eye-witnesses produced by the prosecution had received sufficient corroboration and support. In that backdrop it is not possible for this Court to take a different view of the eye-witnesses produced by the prosecution and of some corroboratory and supportive pieces of evidence adduced during the trial of the said Yaqoob co-convict. Apart from that upon our own independent evaluation of the evidence we have not been able to take a view of the ;natter different from that taken by the courts below which had concurrently found that the prosecution had succeeded in establishing its case against Ali Muhammad appellant beyond reasonable doubt.
5. We have seriously adverted to the sentences of death passed against the appellant on different counts of the charge and have noticed in that context that at least in the matter of his sentences the case of Ali Muhammad appellant appears to be somewhat different from that against his executed brother and co-convict namely Yaqoob. The motive set up by the prosecution mainly revolved around the said Yaqoob co-convict and nexus of the present appellant with the said motive was remote. During the investigation a gun had allegedly been recovered from the custody of the appellant but the record of the case shows that the said gun never stood connected with the alleged offences whereas the firearm recovered from the possession of Yaqoob co-convict had matched with some crime-empties secured from the place of occurrence. Another distinguishing feature vis-a-vis the present appellant is that one of the eyewitnesses mentioned in the FIR namely Walayat had refused to support the case of the prosecution in the appellant's trial and he had appeared as DW 1 in which capacity he had categorically stated before the trial court that the present appellant was in fact innocent. The said consideration was not relevant to the case of. Yaqoob co-convict. During the investigation of this case a Joint Investigation Team was constituted and, for whatever its evidentiary value, the opinion recorded by the said Joint Investigation Team was that the present appellant was not present at the spot at the time of the alleged occurrence. It is not denied that many co-accused of the appellant attributed effective firing have already been acquitted by the courts below. For all these reasons we have decided to exercise caution in the matter of the appellant's sentences of death.
6. For what has been discussed above this appeal is dismissed and all the convictions and sentences of Ali Muhammad appellant recorded and upheld by the courts below are maintained except all his sentences of death which are hereby reduced to sentence of imprisonment for life on all the relevant counts of the charge. It is ordered that all the sentences of imprisonment passed against the appellant shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to him.. This appeal is disposed of in these terms.