Asjad Javaid Ghural, J -Through the afore-titled criminal appeals under Section 25 of the Anti-T errorism Act, 1997 appellants Zaka Ullah and Mubashir Ahmed have challenged the vires of judgme nt dated 18.05.2015 passed by the learned Judge, Anti-T errorism Court-IV , Lahore in case FIR No. 656 dated 09.09.2012, in respect of offences under Sections 302, 324, 109, 148, 149, 337-F(i) & 337-F(ii), PPC, Section 13 of the Punjab Arms Ordinance, 1965 and Section 7 of the Anti-T errorism Act, 1997 registered at Police Station, Lower Mall, Lahore whereby they were convicted and sentenced as under: Under Section7(a) of the Anti-T errorism Act, 1997 read with Section 34, PPC Death and to pay the compensation of Rs. 100,000/- each and in case of non-payment of fine, to further undergo rigorous imprisonment for two years each.
Under Section 302(b)/34, PPC Death sentence as Ta'zir and to pay the compensation of Rs. 300,000/-each and in case of non-payment of fine, to further undergo imprisonment for six months each.
Under Section 337-F(i)/34, PPC Rigorous imprisonment for three years each and to pay Daman of Rs. 5,0001- in default thereof to further undergo simple imprisonment till the payment of Daman each.
Under Section 337-F(iii)/34, PPC Rigorous imprisonment for three years each and to pay Daman of Rs. 15,000/- in default thereof, to further undergo simple imprisonment till the payment of Daman each.
Under Section 13 of the Arms Act, 1965 Rigorous imprisonment for seven years each with fine of Rs. 3,0001- in default thereof, to further undergo rigorous 'imprisonment for six months.
All the sentences shall run concurrently and the benefit of Section 382-B, Cr .P.C. was also given to the convicts.
2. Capital Sentence Reference No. 38-T of 2015 for confirmation or otherwise of death sentence of the appellants shall also be decided through this common judgment.
3. It would not be out of place to mention here that appellant Zaka Ullah was expired in jail on 04.04.2018 and this appeal, to his extent, stood abated vide order dated 19.04.2018.
4. The prosecution story unfolded in the crime report Ex.PO, registered on the complaint of Ali Shehwaz (PW-12) is that his uncle namely , Karamat Bhatti was under the custody of Tariq Sajwar , Inspector CIA Police Station, Cantt.
Lahore being a nominated accused in case FIR No. 897/10 registered under Sections 302, 324, 148 & 149, PPC at Police Station Shandrah Town, Lahore. On 09.09.2012 at 11:30 a.m., he was produced in the Court of the duty Magistrate at District Courts, Lahore by Muhammad Abbas, SI and six other police officials. The complainant along with Muhammad Ali and Asghar Ali was already present there. When the said police officials along with his uncle started to climb over the stairs of the Courts, all of a sudden, six armed accused persons emerged there. Accused Muhammad Anwar commanded to bump off Karamat Ali Bhatti whereupon all the police officials got aside while leaving Karamat Ali there, Zaka Ullah (appellant) made a fire shot with his pistol .30-bore, which hit at the temple of Karamat Ali, whereas the fire shot made by Mubashir Ahmed (appellant) hit at the chest of Karamat Ali, who fell down on the stairs. Both the appellants made fire shots upon Karamat Ali hitting on different parts of his body , who succumbed to the injuries at the spot. Thereafter , the assailants including Abdul Rasheed and two unknown accused started making indiscriminate firing and tried to flee away but Zaka Ullah and Mubashir Ahmed were apprehended by the police of ficials at the spot whereas the remaining accused made their escape good.
Motive behind this occurrence was their previous enmity and pendency of matters before dif ferent Courts.
5. Muhammad Anwar , Inspector (PW-16) visited the place of occurrence on the same day, inspected and escorted the dead body of Karamat Ali Bhatti (deceased) to the mortuary , took into possession pistols as well as crime empties belonging to the accused from the spot, completed formalities as to the initial investigation and recorded the statements of witnesses under Section 161, Cr.P.C. He received the custody of appellants Zaka Ullah and Mubashir Ahmed from Akram, Sub-Inspector and detained them in the lockup of the Police Station. After necessary investigation, got prepared report under Section 173, Cr.P.C. on 26.09.2012. On 20.10.2012 report under Section 173, Cr.P.C. was returned with the objection to add offence under Sections 6 & 7 ATA, which were added and, report under Section 173, Cr .P.C. was accordingly prepared.
6. Dr. Atifa Naheed (PW-7) held autopsy on the dead body of deceased Karama t All Bhatti on 10.09.2012 and observed the following injuries: 1-A A lacerated wound 0.5 x 0.5 cm on the front of right ear with inverted margins 1 cm from .right ear, 6 cm from right eye brow .
1-B A lacerated wound 1 x 1.5 cm on the front of left ear with everted margins. 2 cm on from of lope of left ear and 5 cm front left eye brow . On dissection of head, there was collection of blood under the scalp. Right temp-oral bone was fractured and fracture line was extending to right side of occipital bone. The bruin matter was lacerated. The left temporal bone was also fractured. The projectile enter through Injury No. 1-A and exit at Injury No. 1-B. The base of skull was full of blood.
2-A A lacerated wound 1 x 0.5 cm on the side of right mid arm with everted margins 5cm below elbow and 13 cm above the wrist joint.
2-B A lacerated wound 1 x 1 cm on the front of right upper arm 5 cm below elbow joint and 13 cm above wrist joint with everted margins.
3-A A lacerated wound 1 x 1 cm with inverted margins on the outer aspect of right arm 6 cm above elbow and 21 cm from shoulder joint.
3-B A lacerated wound 2.5 x 5 cm on the inner aspect of right arm 3 cm from right axillae and 23 cm from right elbow .
4 A grazed wound 8 x 3 cm on the outer side of right abdomen 19 cm from mid line and 20 cm from right nipple.
5-A A lacerated wound 2 x 2 cm with inverted margins 23 cm from axillae and 27 cm from mid line on right side of abdomen, 5-B A lacerated wound 1 x 1 cm on the left side of abdomen with everted margins 25 cm from mid line and 26 cm from axillae.
6-A A lacerated wound 1 x 1 cm with inverted margins on the outer aspect of right leg 8 cm below knee joint and 26 above right ankle. 6-B A lacerated wound 1 x 1 cm on inner aspect of right leg .7 cm below knee and 23 cm above ankle.
All the injuries were ante-mortem in nature caused by fire-arm weapon. The cause of death was damage to skull bones and brain under Injury No. 1 and damage to liver under Injury No. 5. These injuries were sufficient to cause death in ordinary course of nature. The duration between injuries and death was within few minutes, whereas, death and post-mortem examination it was 20 to 24 hours.
On 09.09.2012 at 01:13 p.m. Dr. Rafaqat Ali (PW-15) medically examined injure d Maqsood 4629/C and found following injuries:-
1. A lacerated wound 0.5 x 0.5 cm with inverted margins on medical aspect of left upper thigh, 12 cm below from left growing crease.
2. A lacerated wound 1 x 1 cm with irregular and everted margins on postereo medical aspect of left upper thigh, 10cm below from crease of left buttock.
3. An abraded swelling 1.5 x 1 cm on medical aspect of left upper thigh, 4cm behind Injury No. 1.
7. At the commencement of trial, the prosecution examined 17-witnesses besides the reports of Punjab Forensic Science Agency (Ex.PW and Ex.PX). The appellants and their co-accused namely , Muhammad Anwar and Abdul Rasheed, in their statements recorded under Section 342, Cr.P.C. had denied and controverted all the allegations leveled against them. They neither opted to make statements under Section 340(2), Cr.P.C. as their own witness nor produce any other evidence in their defence.
8. Learned trial Court, upon conclusion of the trial, proceeded to acquit Abdul Rasheed and Muhammad Anwar whereas convicted and sentenced the appellants as stated above vide impugned judgment dated 18.05.2015.
Hence, this criminal appeal as well as the connected Capital Sentence Reference.
9. Learned counsel for appellant Mubash ar Ahmad (hereinafter called the appellan t) submits the appellant is quite innocent and he had nothing to do with the alleged occurrence; that the mode and manner of the occurrence as narrated by the acclaimed eye-witnesses does not tally with the real facts of the case; that the claim of the eye- witnesses for arresting the appellant at the spot could not establish from the record being false one; that there was contradiction between the ocular account and the medical evidence qua the angle of fire-arm injuries on the- dead body of the deceased; that the prosecution took considerable time of 22-hours in conducting the post-mortem examination, which makes the entire prosecution story doubtful; that the testimony of acclaimed eye-witnesses is in contradiction with each other , which show s that they are not truthful witnesses; that though the report of Ballistic Expert is positive one yet the pistol recovered from the appellant was sent to the aforesaid office together along with the crime empties allegedly secured from the place of occurrence, which makes the recovery of weapon of offence from the appellant being inconsequential; that there was a longstanding blood feud enmity between the parties and, thus, false implication of the appellant cannot be ruled out. At the end, a prayer has been made for acquittal of the appellant from the capital charge.
10. Conversely , learned Deputy Prosecutor General appearing for the State assiste d by.the learned counsel for the complainant has vehemently contended that it was a daylight occurrence wherein the appellant is well named with specific role of causing fire-arm injury at the chest of the deceased with his pistol; that the deceased was going to be produced before the learned Magistra te for his physical remand and the occurrence took place in the Court premises, fully attracting the provisions of Anti-T errorism Act, 1997; that Maqsood Ahmed 4629/Constable (PW-8) who was holding the fitter, also received firearm injuries at the hands of the appell ant and his co-accused; that the witnesses of ocular account remained firm and consistent in their deposition with regard to the material aspects of the case; that the ocular account is fully supported with the medical evidence; that the appellant was apprehended red-handed along with, his pistol and extra magazines; that the recovery of pistol at the instance of the appellant was found wedded with the crime empties secured from the place of occurrence; that the motive as alleged by the prosecution has fully been proved and, thus, the appellant deserves no leniency by this Court.
11. We have heard learned counsel for the appellant, learned Defence Counse l appointed at State Expenses, learned Deputy Prosecution General appearing for the State assisted by learned counsel for the complainant and perused the record.
12. The mainstay of the prosecution case was on the testimony of two set of witnesses. The first one is consisting of private witnesses i.e. Ali Shehwaz (PW-12)/complainant, Muhammad Ali (PW-13) and Asghar All (PW-14), whereas, the second one consists of official witnesses namely ,. Gulfam Khan 6209/C (PW-4), Maqsood Ahmed 4629/C (PW-8) and Muhammad Abbas Sub-Inspector (PW-11), who were accompanying the deceased when he was going to be produced in the Court of Area Magistrate for his physical remand. They had scui the incident, which had taken place in their presence within the Court premises at the hands of the appellant, his companion Zaka Ullah (since dead) and others.
13. Firstly , we are going to discuss the testimony of the private witnesses. The complainant had deposed almost what he had narrated at the time of lodging the crime report stating therein that on 09.09.2012, it was Sunday when at 11:30 a.m. Abbas Ali SI along with six constables was taking his uncle namely , Karamat All Bhatti (deceased) to the Court of Duty Magistrate, the police officials de-boarded Karamat Ali Bhatti from the official vehicle. The complainant along with Muhammad Ali and Asghar Ali were already present there to see Karamat Ali Bhatti and when they step forward towards him, the police forbade them for meeting as they were already late to produce the accused (deceased) in the Court of learned Magistrate. Karamat All Bhatti was being taken by the police officials to the Court of llaqa Magistrate and they were following the police party at that time. When they reached near the veranda while Karamat Ali Bhatti was in police custody at upstairs, accused Anwar raised Lalkara that Karamat All Bhatti should not be spared. Accused Zaka Ullah (since dead) and Mubashir (appellant) were present at the platform of the upstairs and came down towards the deceased. Co-convict Zaka Ullah (since dead) made a fire shot, which landed near the ear of Karam at Ali Bhatti. The fire shot made by the appellant landed at the right side of chest of the deceased, who after receiving injuries, fell down on the ground. The police ran away but one police employee, who was holding handcuf f of Karamat Ali Bhatti, received fire-arm injury . Appellant Zaka Ullah and co- convict Mubashir made fire shots, which hit on different part of the body of the deceased while he was laying on the ground. The police caught hold of accused Zaka Ullah and Mubashir at the spot while the other accused succeeded to flee away making aerial firing. The police recovered pistols, magazines and live bullets from the appellant and his co-convict and also secured crime empties from the spot. Muhammad Ali (PW-13) and Asghar Ali (PW-14), companions of the complainant, made identical statements before the learned trial Court and in cross- examination, they remained firm and consistent on all material particulars of the incident qua date, time, place, mode and manners of the occurrence. They supplemented each other regarding the role of the appellant and the co-convict of making fire shots at the deceased and also their arrest at the spot by the police. Learned counsel for the appellant has questioned presence of both the acclaimed eye-witnesses, which they attended to successfully while stating that they used to See accused Karamat Ali Bhatti (deceased) once or twice in a week in the said police station for giving him meals and even it is common in the rural set up that when an accused is taken to the Court for the purpose of remand, his relatives/friends usually approach the Court in order to see him for the purpose to provide some finance and other utensils. We have not found any favourable material which could be used in favour of accused and, thus, the defence has failed to extract any material in negation of the prosecution version.
In the second set of witnesses the police officials, who were going to produce the deceased in the Court of Duty Magistrate at the District Courts premises Lahore for taking his physical remand, appeared before the learned trial Court and furnished almost identical story . Gulfarn Khan 6209/C (PW-4) while appearing in the dock in the Courtroom deposed that on the fateful day, he along with Muhammad Abbas SI, Maqsood Ahmed, Muhammad Asghar , Muhammad Waheed and Ghulam Mustafa constables went to produce the deceased in the Court of learned Judicial Magistrate in District Courts, Lahore. The one end of the handcuf fs of the deceased was tied in the belt of Maqsood Ahmed constable and when they were about to move upstairs, co-convict Zaka Ullah made a fire shot, which landed at the temple and the fire shot made by the appellant hit at the chest of the deceased, who fell down on the stairs. They repeated the fire shot upon laying Karamat Ali. The fire shots of the accused also hit Maqsood Ahmed constable. He along with the other officials arrested both the accused at the spot and during search one pistol .30-bore, three magazines and 12-lave bullets were recovered from the appellant. Maqsood Ahmed 4629/C (PW-8) made statement in line with Gulfam Khan constable with more clarity that Karamat Ali Bhatti (deceased) was arrested in case FIR No. 897/10, in respect of offences under Sections 302, 324, 148 & 149, PPC and FIR No. 647/12, registered under Section 13 of Arms Ordinance, 1965 and in those cases he was taken to the Court of learned Magistrate for the purpose of his physical remand and when they reached in the Court premises, on the stairs, the appellant along with his co-accused made fire shots. The handcuf fs of Karamat Ali Bhatti was in his belt, who after receiving fire-arm injuries fell down on the stairs and he had also received fire arm injuries. He further deposed that his companions apprehended the appellant and his co-convict at the spot and recovered pistols and magazines from them. Muhammad Abbas, SI (PW-11), being head of the police team, fortified the version of Gulfam Khan (PW-4) and. Maqsood Ahmed, constables (PW-8). The presence of the officials has neither been questioned nor denied by the defence, rather admitted one in so many words in cross-examination.
14. The important aspect of the case was that the deceased, who remained a proclaimed offender for many years, the head-money wtis fixed for his arrest and he was a high security risk, had been going to be produced before the Court of Magistrate in the handcuf fs for the purpose of remand. The appellant, was specifically attributed the role of causing fire-arm injury at the deceased's chest whereas his co-convict was attribu ted the role of causing fire arm injury at the temporal region of the deceased and both were apprehended at the spot with their weapons of offence. This photographic picture of the occurrence leaves no room for their innocence. The defence during cross- examination and even in the statements of the accused recorded under Section 342, Cr.P.C. never claimed that they were not arrested at the spot by the police. Both the accused were held guilty of the offence by the trial Court and they were accordingly convicted and sentenced to the capital punishment. Co-convict Zaka Ullah passed away in the jail premises.
The injury attributed to the appellant was at sensitive part of the body of the deceased, which was sufficient to cause death in ordinary course of nature. Dr. Atifa Naheed (PW-7) conducted autopsy on the dead body of the deceased and observed six fire-arm ante-mortem injuries along with five exit wounds. The injury attributed to the appellant is well mentioned in the post-mortem examination report. The cause of death was damaged to skull bone and brain under Injury No. 1; attributed to the co-convict and damaged to liver under Injury No. 5 attributed to the appellant. These injuries were sufficient , to cause death in ordinary course of nature. The duration between injuries and death was few minutes whereas between death and postmortem examination, it was 20 to 24 hours. Learned counsel for the appellant has much emphasis that the delay of 20 to 24 hours in conducting the post-mortem examination of the dead body of the dece ased by itself infers that some facts were maneuvered prior to registration of the case and it could be possible that the crime report was registered with sufficient delay after holding the daily diary of the police station in order to show its promptness. There is no denial of the fact that no specific explanation in this regard is available with the prose cution but when such like incident takes place, the demonstration and media hike and some other factors create some hindrance but the alone fact of delay in conducting the post- mortem examination is not sufficient to discard the 'overwhelming ocular account furnished by the private as well as official witnesses including the arrest of the appellant and his co-convict at the spot along with their respective ammunition. We have no manner of doubt in our mind that the medical evidence lends full support to the ocular version.
15. The appellant, and his co-convict were arrested at the spot along with their respective weapons of offence, magazines and bullets pistol. The crime empties secured from the crime-scene, were dispatched into the office of Punjab Forensic Science Agency for getting expert opinion and the report of the aforesaid office (Ex.PX) has been received with positive result showing that the pistol recovered from the appellant was found wedded with the crime empties. So far as the objection of depositing the fire-arm weapons and the crime empties together in the office of Ballistic Expert is concerned, the objection prevails when the accused is captured at some subsequent date and the crime empties are withheld till his arrest in order to manage the favourable report but in the instant case, the appellant was arrested at the spot along with his weapons of the offence and the crime empties were secured there from on the same day and, thus, we find no justification to send the crime empties and the weapons separately . In view of the foregoing circumstances, the recovery of weapon of offence from the appellant coupled, with the positive report of the Ballistic Expert, fully connects the appellant with the murder in issue.
16. The prosecution has not set up any specific motive in the crime report, however , it is an admitted fact that both the parties were indulged in longstandin g blood feud enmity . Muhammad Anwar " Inspector/Investigating Officer (PW-4) specifically deposed in cross-examination 'that the deceased had killed two teal brothers of the co-convict and uncles of the appellant wherein he remained proclaimed offender . The appellant and his uncle Zaka Ullah had the reason to kill the deceased but anyhow both the parties had not denied their enmity , which would be the sole reason for murder of the deceased in the police custody and it was dared to in the Court premises and presence of the police of ficial's.
17. From this discussion, we are of the considered view that the prosecution has been able to prove the charge of murder against the appellant through cogent, reliable and confidence inspiring evidence. There is no manner of doubt in our mind that the appellant and his companion Zaka Ullah launched murderous assault upon the deceased when he was in the police custody resulting into spontaneous death of the deceased and injuries to Maqsood Ahmed constable who was holding the handcuf fs. .The appellant and his co-convict were arrested at the spot along with their respective fire-arm weapons, which has never been denied by the defence. The private and the official witnesses remained firm and consistent inter-se on all material aspects of the case supported with medical evidence and they were in unison with regard to the specific attribution of fire-arm injury at the chest of the deceased and thereafter he and his companion played collective role of making fire shots when he fell down on the ground after sustaining fire-arm injuries and their arrest at the spot. The recovery of weapon of offence from the appellant coupled with the positive report of the Ballistic Expert, provides full corroboration to the ocular account.
The direct enmity between the parties indicates that the appellant and the co-convict murdered the deceased in order to take the revenge of the murder of two real uncles of the appellant. The prosecution has been succeeded to prove the charge of homicidal death of the deceased at the hands of the appellant beyond any manner of doubt.
We have concurred with the conclusion arrived at by 'the trial Court qua the convict ion of the appellant but so far as the quantum of sentence is concerned, we have taken note of some mitigating factors. Firstly , the deceased had committed murder of two real brothers of co-convict as well as real uncles of the appellant and secondly , the deceased was involved in . seventeen criminal cases of murder and dacoity etc., he remained proclaimed offender for long period, he had created panic in the public-at-large and was a threat to peace for the Law Enforcement Agencies and some head-money was fixed for his arrest by the Government vide Notification No. HP-II/2-51/2012, dated 17th August, 2012. We are persuaded that the aforesaid factors are sufficient, to be considered as mitigation for reduction of capital sentence of the appellant into one of the imprisonment for life.
19. In view of what has been discussed above, the appeal in hand is without any merit, the same stands dismissed by maintaining the appellant's conviction, however the sentences of death in an offence under Section 302(b), PPC and Section 7 of the Anti-T errorism Act 1997 are modified to the one of imprisonment for life in each offence. The amount of compensation as well as fine and the sentences in lieu thereof will remain intact. The conviction and sentences in the remaining offences stand upheld. The benefit of Section 382-B, Cr.P.C. is extended to the appellant. All the sentences of imprisonment shall run concurrently .
20. Capital Sentence Reference No. 38-T of 2015 is answered in negative and death sentence of appellant Mubashir Ahmed. is NOT confirmed.