SADAQAT ALI KHAN, J. Appellants (Muhammad Arshad, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan, Farhat Ullah, Ameer Nawaz and Jahanzeb @ Jana Sheedi) along with their co- accused i.e. Muhammad Akram (since dead) have been tried by the trial Court in private complaint offences u/ss 302/324/427/148/149/109 PPC & 7-ATA 1997 arising out of case FIR No.28 Dated 09.01.2018 P.S. City District Mianwali, and were convicted and sentenced vide judgement dated 11.11.2024 as under:- Muhammad Arshad, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan, Farhat Ullah, Ameer Nawaz and Jahanzeb @ Jana Sheedi (appellants) u/s 302 (b)/149 Sentenced to DEATH on five counts PPC each as Tazir for committing Qatl-i-Amd of Muhammad Nauman, Muhammad Mehran, Abdul Waheed, Atta Rasool and Fida Muhammad (deceased) with compensation of Rs.5,00,000/- on five counts payable to legal heirs of each deceased u/s 544-A Cr.P.C., recoverable as arrears of land revenue, and in default whereof to further undergo simple imprisonment for 6-months each. u/s 324 PPC Sentenced to undergo rigorous imprisonment for 10-years on five counts each with fine of Rs.50,000/- on five counts each for attempting to commit Qatl-i-Amd of Fateh Muhammad, Abdul Hafeez, Farooq, Ghulam Muhammad, Muhammad Aslam and Tariq Aziz (injured PWs), and in default whereof to further undergo simple imprisonment for 6-months each. u/s 337-D PPC Sentenced to undergo rigorous imprisonment for 10-years as Tazir each on one count with 1/3rd of Diyat as Arsh (2018) to Fateh Muhammad. u/s 337-F(iii) PPC Sentenced to undergo rigorous imprisonment for 3-years as Tazir each on four counts with Daman of Rs.50,000/- each payable to Fateh Muhammad, Abdul Hafeez, Muhammad Farooq and Muhammad Aslam. u/s 337-A(i) PPC Sentenced to undergo rigorous imprisonment for 02-years as Tazir each on one count with Daman of Rs.50,000/- each on one count payable to Muhammad Farooq. u/s 427 PPC Sentenced to undergo rigorous imprisonment for 02-years each for causing damage to the property/vehicles alongwith fine of Rs.50,000/- each. u/s 148 PPC Sentenced to undergo rigorous imprisonment for 03-years each for commission of offence of rioting with deadly weapons.
In default of payment of compensation and fines, they were directed to further undergo 6-months each S.I. Sentences of the appellants were ordered to run concurrently with benefit of section 382-B Cr.P.C.
2. Appellants have filed both the above captioned Criminal Appeals against their conviction and the trial Court has sent Murder Reference for confirmation of their death sentence or otherwise, which are being decided through this single judgment.
3. Heard. Record perused.
4. Muhammad Nauman, Muhammad Mehran, Abdul Waheed, Atta Rasool and Fida Muhammad (deceased) were done to death whereas Ghulam MuhammadPW2, Abdul HafeezPW3, Fateh MuhammadPW4, Muhammad AslamPW5, Tariq AzizPW6,Muhammad FarooqPW7, Musa Kaleem Ullah and Muhamamd Mohsin (given up PWs being won over) sustained firearm injuries during the occurrence took place on the road on 09.01.2018 at 08.30 a.m. whereafter FIR was lodged on the same day at 10.15 a.m. on the statement of Muhammad KhanPW1 (close relative to the deceased and injured PWs; father, brothers and Uncle), who while claiming himself to be the eyewitness of the occurrence stated in his statement before the trial Court as under:- "On 09.01.2018, at about 08:30 am, I along with my brothers Ghulam Muhammad, Fateh Muhammad, my cousin Muhammad Aslam, my son Muhammad Mehran, my nephew Muhammad Nauman, Abdul Ghaffar, Umar Daraz, Abdul Rasheed, Muhammad Sharif son of Abdul Hameed, Muhammad Sharif son of Atta Muhammad, Abdul Hafeez, Abdul Waheed, Tariq Aziz sons of Abdul Aziz, Muhammad Farooq son of Muhammad Aslam, Abdul Hameed, Shaukat son of Mehboob, Mohsin son of Bashir were going to Sessions Court Mianwali while boarding on four vehicles. I along with Ghulam Muhammad, Muhammad Aslam, Fateh Muhammad, Muhammad Mehran and Muhammad Nauman were sitting in double cabin daala bearing registration No. LOK-942 while Tariq Aziz, Abdul Hafeez, Abdul Waheed, Muhammad Farooq were sitting in a Toyota Corolla car bearing No. FD-55 whereas Abdul Hameed, Shaukat, Mohsin son of Bashir were present in Toyota Corolla car bearing No. LEC-945 and Abdul Ghaffar, Umar Daraz, Abdul Rasheed, Muhammad Sharif and Muhammad Sharif were sitting in Toyota Corolla car bearing registration No. PU-900.
When we reached at Truck Adda in front of Total Petrol Pump, Sargodha-Mianwali Road, the speeds of our vehicle were reduced due to rush of traffic on the road at that time whereas a truck was also parked on the other side of the road just to create the hurdle in the flow of traffic and when we reached near the above said truck, the speeds of our vehicles were deadly slow, then accused Dil Jan, Arshad Khan, Akram Khan, Ameer Nawaz (armed with K.Ks), Khalas Khan, Ameer Ahmad, Ameer Nawaz, Rohtas Khan and Jahanzaib alias Jana Sheedi (all armed with 44 bore rifles), now present in court except Dil Jan (since P.O), who were previously known to me, with four unknown persons (all armed with 44-bore) came in front of us. One of the said unknown persons was subsequently nominated by me as Falak Sher accused. Dil Jan accused raised lalkara that they will kill us and made a burst shot with his K.K landed on rear tyre of my vehicle due to which my vehicle was stopped and we all de-boarded from it. Arshad Khan accused made a fire shot with his K.K which landed on right armpit of my son Muhammad Mehran, Dil Jan accused made a fire shot with his K.K hitting on right armpit of my nephew Muhammad Nauman, Muhammad Akram accused also made a fire shot which hit on right hip of my nephew Muhammad Nauman, Muhammad Akram accused again made a fire shot which hit to a passer-by whose name was subsequently known as Fida Muhammad resident of Katcha Khu, District Khanewal, Ameer Nawaz accused made fire shots with his KK hitting front side of chest and left armpit of my brother Ghulam Muhammad, Ameer Ahmad accused made fire shot with his rifle 44-bore which hit on the left leg of my cousin Muhammad Aslam, Khalas Khan accused made fire shot with his rifle 44-bore which landed on the front side of abdomen and left thigh of my brother Fateh Muhammad, then Farhat Ullah accused made fire shot with his rifle 44-bore which landed on left thigh of Abdul Waheed, Farhat Ullah accused again made a fire shot which hit on flank of a passer-by whose name was subsequently known as Atta Rasool, thereafter, Rohtas Khan accused made fire shot with his rifle 44-bore which landed on right arm and right flank of Abdul Hafeez, then Jahanzaib alias Jana Sheedi accused made fire shot with his rifle 44-bore hitting right side cheek and back side of neck of Muhammad Farooq. Thereafter, all the above said 13 accused started indiscriminate firing with their respective weapons, as a result of which Mohsin Bashir, Tariq Aziz and Musa Kaleemullah (worker of workshop situated near the place of occurrence) also sustained firearm injuries and our vehicles were also badly damaged. The accused succeeded to escape from the spot by making firing with their respective weapons. Besides myself, the occurrence was also witnessed by Abdul Ghaffar, Muhammad Sharif, Abdul Hameed and also injured PWs named above. I along with the PWs attended the injured persons and found that Muhammad Mehran, Muhammad Nauman and Fida Muhammad (passer-by) were succumbed to the same injuries at the spot. In the meanwhile, the vehicles of Rescue-1122 also reached there. I left Abdul Ghaffar, Umar Daraz, Abdul Hameed, Shaukat and others at the spot with the above said dead bodies and shifted the injured to DHQ hospital Mianwali through Rescue-1122. Injured Atta Muhammad succumbed to the injuries in the hospital. Injured Ghulam Muhammad, Fateh Muhammad, Abdul Hafeez, Abdul Waheed were shifted to Holy Family Clinic Hospital Rawalpindi due to their serious condition from whom injured Abdul Waheed was also succumbed to the same injuries in the above said hospital.
The motive behind the occurrence was that on 16.05.2015, two sons of accused Khalas Khan namely, Ashraf and Asghar Khan were murdered near my dera and we were nominated in the murders of above said persons. The above said accused due to the revenge of murders of sons of Khalas Khan accused, committed this occurrence. Fear and panic spread at the place of occurrence being public place and the people shut down their shops and two passers-by were murdered and a worker of workshop became injured during this occurrence."
5. Ghulam Muhammad/injuredPW2 Abdul Hafeez/injuredPW3, Fateh Muhammad/injuredPW4, Muhammad Aslam/injuredPW5, Tariq Aziz/injuredPW6 and Muhammad Farooq/injuredPW7, Abdul HameedPW8 and Abdul GhaffarPW9 while appearing before the trial Court have reiterated the same story.
6. Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) have not been attributed any injury on the persons of deceased (Muhammad Nauman, Muhammad Mehran, Abdul Waheed, Atta Rasool and Fida Muhammad) but they have been convicted against their injuries of the said deceased in common object. Considering the peculiar facts and circumstances of this case, we are of the view that prosecution has failed to prove common object between the appellants. Learned counsel for the complainant also submits that appellants (Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi) could not have been convicted in common object. In these circumstances, with the consent of both the learned counsel for the parties, conviction and sentences of Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) in common object against the injuries of the deceased not attributed to them are hereby set aside.
7. Conviction and sentences of all the appellants (Muhammad Arshad, Farhat Ullah, Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi) in common object against the injuries of the injured PWs not attributed to them and in offences u/ss 148 & 427 PPC are also set-aside.
8. Learned counsel for the appellants do not press the conviction of Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) in offences u/ss 324/337-D, 337-F(iii), 337-A(i) PPC with a request to reduce their sentences of imprisonment in above said offences and instalments of Arsh & Daman as determined by the trial Court.
9. On the other hand, learned counsel for the complainant with learned DPG has no objection on reduction of sentences of imprisonment of Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) in above said offences and payment of Arsh and Daman in instalments.
10. In these circumstances, with the consent of both learned counsel for the parties as well as learned DPG while maintaining the conviction of Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) in above said offences, their sentences of imprisonment is reduced to that already undergone by them in each offence. Fine Rs.50,000/- in offence u/s 324 PPC is maintained but sentence in default whereof is reduced to 2-days S.I. They are directed to deposit Arsh & Daman (as determined by the trial Court), in the trial Court within a period of 3-years starting from 21.06.2025 in equal monthly instalments in view of Sections 337-X & 337-Y PPC failing which they shall be arrested, kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until Arsh & Daman is paid in full. Injured PWs would be at liberty to receive the same from the trial Court on their realization in accordance with law.
Sentences of Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) shall run concurrently with benefit of Section 382-B Cr.P.C. Meanwhile, Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) are directed to be released on bail subject to submission of bail bonds in a sum of Rs.500,000/- each with one surety each in the like amount to the satisfaction of the trial Court.
11. With the above said modification in the impugned judgment to the extent of Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants), these two appeals to their extent are disposed of as such. Murder reference to the extent of Ameer Nawaz, Khalas Khan, Rahtas Khan, Ameer Ahmad Khan and Jahanzeb @ Jana Sheedi (appellants) is answered in NEGATIVE and their death sentence is NOT CONFIRMED.
12. Coming to the case of Muhammad Arshad and Farhat Ullah (appellants), all the eyewitnesses/injured PWs have specifically stated in their statements before the trial Court that they (Muhammad Arshad & Farhat Ullah) caused firearm injuries on the persons of Muhammad Mehran, Abdul Waheed and Atta Rasool (deceased). They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated one another on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straight forward, trustworthy, confidence inspiring and cannot be discarded mere on probabilities.
13. The discrepancies in the statements of the PWs pointed out by learned counsel for the appellants (Muhammad Arshad and Farhat Ullah) are minor and general in nature, occur in every case when witnesses (who are human beings) are cross-examined at later stage as in present case, are not fatal to the prosecution case.
14. It was a day light occurrence. Parties having murder enmity are previously known to each other, so there is no question of misidentity of the appellants leaving the actual culprit scot free.
15. Medical evidence has been furnished by Dr. Annam Ali RazaPW22, Dr.Awais ur RehmanPW23 and Dr.Muhammad AshrafPW24 who during post-mortem examination on the dead bodies of Abdul Waheed, Atta Rasool and Muhammad Mehran (deceased), respectively observed firearm injuries on their persons attributed to the appellants (Muhammad Arshad & Farhat Ullah) which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature, therefore, medical evidence has fully supported the ocular account furnished by the above mentioned eyewitnesses/injured witnesses. No need to discuss the injuries of Muhammad Nouman and Fida Muhammad (deceased) and injured PWs which have not been attributed to appellants (Muhammad Arshad & Farhat Ullah).
16. 44-bore rifle recovered on pointing out of the appellant (Farhat Ullah) has matched with crime empties collected from the place of occurrence. (Report of PFSA in this respect is Exh.PXX).
17. Muhammad Arshad (appellant) has taken specific plea of alibi during the investigation with the assertion that on 07.01.2018 he was arrested in case FIR No.12 Dated 07.01.2018 in offence u/s 13 of The Pakistan Arms Ordinance (XX of 1965) P.S. Civil Line, Rawalpindi, got sent to Adiyala Jail, Rawalpindi, released on bail on 11.01.2018 and was confined in Adiyala jail, Rawalpindi on 09.01.2018 at 8.30 a.m. when present occurrence took place. a. Relevant provisions of law in this respect are hereby reproduced:- i). Article 24 of Qanun-e-Shahadat Order, 1984 with illustrations:- "When facts not otherwise relevant become relevant. Facts not otherwise relevant are relevant.
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Peshawar on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crimes was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant
(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either A, B. C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant. ii). Article 119 of the Order Ibid, with illustration:- "Burden of proof as to particular fact.
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustrations
(a) .........
(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it." b. Mere presumption cannot be equated with proof in order to qualify or to substantiate the plea of alibi, Muhammad Arshad (appellant) was required to discharge the onus cast upon him to substantiate the plea of alibi. c. To prove the plea of alibi, Muhammad Arshad (appellant) has produced copy of case FIR No.12/2018 as Exh.DK, report u/s 173 Cr.P.C. thereof as Exh.DL, copy of bail bond submitted by him before the trial Court on 11.01.2018 as Exh.DM. Contrary to this, Muhammad Yasir, InspectorCW1 being investigating officer stated in his cross-examination (conducted on behalf of the complainant) that FIRs referred by Muhammad Arshad (appellant) and Muhammad Akram (co-accused since dead) regarding their pleas were self-created; that Ameer Aslam @ Niazi/C, resident of Mianwali, was closely related to Muhammad Arshad (appellant); that he was posted at Police Station Civil Line, Rawalpindi, where said FIR No.12 of 2018 (plea of alibi) was registered against Muhammad Arshad (appellant); that departmental inquiry was initiated against Ameer Aslam @ Niazi/C and others; that he was suspended forthwith and high level inquiry was held against him; that Muhammad Arshad appellant got registered FIR in petty offence. Abdul Rauf/ASI has been produced by Muhammad Arshad (appellant) as DW1 who produced letter dated 09.02.2018 issued by District Police Officer, Mianwali to Superintendent, Adiyala Jail, Rawalpindi as (Exh.DU) and letter dated 13.02.2018 issued by Superintendent Central Jail, Rawalpindi to District Police, Mianwali, (Exh.DV) which shows that Muhammad Arshad (appellant) was confined in Central Jail, Rawalpindi but neither author of this letter nor jail record in this respect has been produced even to establish the identity of Muhammad Arshad (appellant). d. Muhammad Arshad (appellant) has not produced entry and exit logs of jail record to establish that he was confined in jail at the date and time of present occurrence. He has also not produced jail record pertaining to his admission into jail and release from jail. No jail officer has been produced to establish that Muhammad Arshad (appellant) was lodged in jail during the date and time of present occurrence. Copies of remand orders of the Magistrate concerned for the custody of Muhamad Arshad (appellant) have also not been produced. Jail record pertaining to meals, medical visit or any other activity of Muhammad Arshad (appellant) in the jail has not been produced. e. CCTV footage of jail and travel logs have also not been produced to establish the confinement of the appellant in the jail. f. Muhammad Arshad (appellant) has also not produced any copy of bail application alongwith order of the Magistrate that on such and such date he was granted bail by the Magistrate rather has failed to establish that actually and physically he was confined in Adiyla jail, Rawalpindi on 09.01.2018, (the date of occurrence of the present case), pertaining to case FIR No.12 Dated 07.01.2018 in offence u/s 13 of The Pakistan Arms Ordinance (XX of 1965) P.S. Civil Line, Rawalpindi.
Although no adverse inference is to be drawn against an accused upon his failure to enter the witness box in disproof of a charge against him, yet in the given circumstances of the case, Muhammad Arshad (appellant) was the best witness to establish the genesis of factual position asserted by him while appearing before the trial Court u/s 340 (2) of Cr.P.C
18. The argument of learned counsel for the appellant (Muhammad Arshad) that the Supreme Court of Pakistan has granted post arrest bail to him while accepting his plea of alibi vide Order dated 06.02.2019, passed in Crl.Petition No.1299 of 2018 (Mark-DC/1-2) and this court cannot discard the same has no substance, rather the Supreme Court of Pakistan has specifically mentioned in its Order that the worth and evidentiary value of the plea of alibi taken by the appellant and his involvement in this case shall be determined by the trial after recording of evidence, whereafter the trial Court has rightly rejected the plea of alibi of the appellant.
19. In view of above discussed circumstances, we are of the view that Muhammad Arshad (appellant) has failed to prove his plea of alibi to discard the injured eyewitnesses. Reliance is placed on case titled "Jahanzeb Khan alias Zaibi & others Vs. The State & others" (2017 PCr.LJ Note 198). The above said judgment was upheld by the Supreme Court of Pakistan vide judgment dated 23.10.2024 passed in Crl.As.No.581 to 584 of 2019
20. Otherwise, appellants (Muhammad Arshad & Farhat Ullah) have also denied their involvement in this case in their statements recorded u/s 342 Cr.P.C. and stated that they are innocent; that they have falsely been involved in this case; They have not opted to appear u/s 340 (2) Cr.P.C. but produced certain documents in support of their defence plea alongwith DW1 (Abdul Rauf/ASI) which has rightly been discarded by the trial Court through the impugned judgment with sufficient reasons.
21. In view of the above discussion, we are of the view that the prosecution has proved its case beyond shadow of doubt against the appellants (Muhammad Arshad & Farhat Ullah) through the evidence discussed earlier.
22. Now coming to the quantum of sentence of the appellants (Muhammad Arshad & Farhat Ullah), having considered all the pros and cons of the case, an irresistible conclusion drawn by this Court is that the appellants (Muhammad Arshad & Farhat Ullah) have committed shocking and callous murders of Muhammad Mehran, Abdul Waheed and Atta Rasool (deceased) by causing firearm injuries on their persons. We are unable to find out any mitigating circumstance in favour of the appellants. Although weapon of offence has not been recovered on pointing out of Muhammad Arshad (appellant) during interrogation yet in presence of above discussed ample evidence non-recovery could not be considered a mitigating circumstance specially in present case. "Muhammad Aslam V. The State" (2004 SCMR 872) & "Muhammad Afzal and 2 others V.
The State" (2003 SCMR 1678).
23. The purpose behind the infliction of sentence is twofold. Firstly, it would create such atmosphere which could become a deterrence for the people who have inclination towards crime and; secondly, to work as a medium in reforming the offence. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society. However, in such like cases, where the appellants (Muhammad Arshad & Farhat Ullah) have committed the murders of three innocent persons during the occurrence, they deserve no leniency. If in any proved case lenient view is taken, then peace, tranquility and harmony of society would be jeopardized and vandalism would prevail in the society. Now-a-days the crime in the society has reached an alarming situation and in the mental propensity towards the commission of crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to run away scot-free.
24. For the foregoing reasons, the conviction and sentences of appellants (Muhammad Arshad & Farhat Ullah) against murders of Muhammad Mehran, Abdul Waheed and Atta Rasool (deceased) are maintained. The compensation and sentence in default thereof are also maintained.
Resultantly, instant Crl.Appeal to the extent of both the appellants (Muhammad Arshad & Farhat Ullah) is dismissed and their death sentence is CONFIRMED. Murder Reference is answered in AFFIRMATIVE.
25. Before parting with this judgment, it is observed that case of co-accused (Dil Jan still P.O) shall be decided by the trial court on his arrest on its own merits without being influenced from this judgment.