MUHAMMAD NAWAZ ABBASI, J.-- The appellant namely Sher Zaman son of Gul Zaman was tried for the charge under Section 302/324, PPC for committing Qatl-e-Amd of Rab Nawaz and Mst. Payari Jan and causing injuries to Shah Nawaz, Amir Dad, Fazal Dad and Muhammad Sajjad in the area of Village Killa Rajgan Dakhli Bakrala situated within the limits of Police Station Sohawa, District Jhelum, by a learned Additional Sessions Judge at Jhelum exercising the powers of Special Court established under Suppression of Terrorist Activities Act, 1975. The learned trial Judge having found the appellant guilty of the charge convicted and sentencec him vide judgment dated 24.11.1999 in the following manner:-
(a) Under Section 302, PPC.
For committing the murder of Rab Nawaz and Mst. Payari Jan, the appellant was sentenced to death on two counts.
(b) Under Section 324, PPC.
For an attempt at the life of the witnesses, R.I. For ten years with a fine of Rs.30,000/- and in default of the payment of fine to undergo R.I. For two years.
(c) Under Section 337-F(ii), PPC.
(i) For causing injuries to Shah Nawaz, payment of Rs.2,000/- as Daman with the sentence of R.I. For three years as Ta'zir for each injury.
(ii) For causing injuries to Fazal Dad, payment of Rs.2,000/^ as Daman with the sentence of three years' R.I. As Ta'zir.
(iii) For causing injury to Muhammad Sajjad, payment of Rs.2,000/- as Daman with the sentence of three years* R.I. As Ta'zir.
(d) Under Section 337-F(iv), PPC.
(i) For causing injury to Muhammad Sajjad, payment of Rs.5,000/- as Daman with imprisonment for a period of five years' R.I. As Ta'zir.
(ii) For causing injury to Ameer Dad, payment of Rs.5,000/- as Daman with the imprisonment for a term of five years' R.I. In case of non-payment of the amount of Daman, the convict would remain in Jail and undergo simple imprisonment till the payment of Daman, which. On recovery would be paid to the victims.
(e) The appellant was also directed to pay compensation of Rs. 50,000/- for each murder to be paid to the legal heirs of Rab Nawaz and Mst. Payari Jan. In addition to the above compensation, the appellant was burdened with the payment of Rs.10,000/- as compensation to each injured and in default of the payment of compensation to the legal heirs of the deceased, the appellant was directed to undergo R.I. For six months on each count, In case of default of payment of compensation to the injured, he would undergo R.I. For two months. The different sentences of imprisonment were directed to run concurrently with benefit of Section 382-B, Cr.P.C.
3. The appellant has challenged his conviction and sentence through Criminal Appeal Bearing No. 275-T/1999 filed from jail. The learned Special Judge has sent the record of the case to this Court for confirmation of the sentence of death awarded to the appellant in terms of Section 25 of the Anti- Terrorism Act, 1997.
4. The fateful occurrence took place on 28.4.1996 and the case under Section 302/34, PPC was registered against the appellant on the same day on the statement made by Raja Ameer Dad at Police Station Sohawa. The brief facts of the case as contained in the FIR are that on 28.4.1996 at 8 a.m. The complainant along with Mst. Payari Jan wife of Rab Nawaz went to the house of Sher Zaman son of Gul Zaman, the real brother of Rab Nawaz, to invite Gul Zaman to attend the marriage of Shah Nawaz and Mst. Shakeela, the son and daughter of Rab Nawaz respectively, which was scheduled to be solemnized after a few days. Gul Zaman and Rab Nawaz were real brothers inter se and the date of marriage of Shah Nawaz, son of Rab Nawaz, was fixed on 4.5.1996.
Gul Zaman and Rab Nawaz had strained relations over a dispute of property for the last 4/5 months as Rab Nawaz wanted to construct bath-room adjacent to his house, but Gul Zaman having raised an objection filed a civil suit and obtained status quo order from the Civil Court. With a view to ensure the participation of Gul Zaman and his family in the marriage of son and daughter of Rab Nawaz, the complainant with his companions went to the house of Gul Zaman adjacent to the house of Rab Nawaz. The moment, complainant and his companions reached near the courtyard of the house of Gul Zaman, his son Sher Zaman armed with .222 automatic rifle started firing. The first shot fired by Sher Zaman hit Rab Nawaz on his forehead near left eye. Thereafter Sher Zaman made indiscriminate firing as a result of which the complainant was hit on left wrist, Haji Fazal Dad was hit on his right hip, whereas Muhammad Sajjad was hit on his right upper arm, Shah Nawaz sustained injuries on left upper arm and a shot fired by the accused hit Mst. Payari Jan who and Rab Nawaz succumbed to the injuries at the spot. The occurrence took place at 8-00 p.m.
And the case was registered on the same day at IQ- 20 a.m. Vide FIR No. 77/96 at Police Station Sohawa.
5. Dr. Shahid Ahmad Mian, Medical Officer, DHQ Hospital, Jhelum, PW-6 conducted the post- mortem examination on the dead-body of Rab Nawaz son of Bagh AN at $-0 p.m. And found the following injuries on his person:-
(1) A wound of entry (margin inverted) 2x2 c.m. Hole present on upper margin of right orbit at the junction of nasofrontal bone 1 c.m. From nasal bridge.
(2) Wound of exit, a hole 3 c.m. On diameter with everted margin. Small pieces of bone adherent with skin on left side of back of neck at the junction of skull and neck 7- c.m. From let ear lobule.
Wound of entry and exit were connected through and through.
In the opinion of the doctor, the cause of death was the injuries sustained by the deceased on the head region. The doctor in the cross-examination has stated that the deceased had lepratomy before death.
6. Dr. Shahid Baig PW-7 conducted the post-mortem examination on the dead-body of Mst. Payari Jan on the same day and found the following injury.
"A stitched 15 c.m. Long wound in the median place was present. No ligature mark was present around the neck. No other signs of external abuse were present over the rest of the body."
In the opinion of the doctor, the injury was sufficient to cause death in the ordinary course of nature.
7. Dr. Asjid Ali, who examined the injured witnesses was reported to be dead and the medico-legal reports of the injured witnesses having been made part of the record were proved by Akhlaq Ahmad Dispenser PW-14.
8. Dr. Khalid Javed Radiologist PW-1 prepared X-ray reports of the injuries of Shah Nawaz, Amir Dad and Muhammad Sajjad, which were made part of the evidence Muhammad Din Draftsman PW-2 on the pointation of the witnesses and direction of the police prepared site-plans Ex.PE/1 and Ex.PE/2 of the place of occurrence. Muhammad Siddiq PW-3, a police constable was given sealed parcels containing the blood-stained earth and the crime empties for delivery in the office of Chemical Examiner and Forensic Science Laboratory at Lahore. The said witness also delivered sealed parcel of .222 bore rifle in the office of Forensic Science Laboratory, Lahore. Afzal Mehdi H.C.
PW-4, Moharrir of the Police Station, kept the parcels of the case property in Malkhana intact and subsequently handed over the same to Muhammad Siddiq constable PW-3 for their delivery in the respective office- Muhammad Sharif, Constable PW-5 escorted the dead-body of Rab Nawaz and Mst. Payari Jan deceased to the mortuary and delivered the last worn clothes of the deceased to the S.H.O, after the post-mortem examination. Muhammad Ikhlaq son of Diswand Khan PW-8 has witnessed the recovery of bloodstained earth from the parcels of murder of the deceased and recovery of crime empties six in number and a iron Patti P.8. Amir Kabal PW-9 identified the dead- body of Rab Nawaz and Mst. Payari Jan at the time of post-mortem examination. Raja Amir Dad PW-,10, Shah Nawaz PW-11 and Fazal Dad PW-12 the injured witnesses have furnished the ocular account. The eye-witnesses having narrated the facts in detail corroborated the prosecution story given in the FIR without any omission or improvement. They remained consistent while describing the manner in which the accused made firing on the deceased and they sustained injuries. As per their evidence, the first shot fired by Sher Zaman hit Rab Nawaz on his head near left eye, and the next shot fired by the accused hit on the left wrist of the complainant. The third shot fired by Sher Zaman hit on the right hip of Haji Fazal Dad and similarly Muhammad Sajjad and Shah Nawaz were hit on their left upper arm and Mst. Payari Jan was hit on her abdomen. The defence despite lengthy cross-examination to the witness has not been able to dislodge the eye-witnesses and prosecution story relating to the occurrence, which took place in the house of Gul Zaman. The defence has put suggestion to the witnesses that in fact Mst. Shakeela, daughter of Rab Nawaz, who was being married with an illiterate person namely Majid son of Ikhlaq against her will being annoyed with her parents left for the house of Gul Zaman and the deceased along with the witnesses with a view to bring her back to their house came to the house of Gul Zaman but Mst.
Shakeela resisted her return and while picking-up a licensed 222-rifle from the hose of Gul Zaman extended threats of committing suicide whereupon Gul Zaman and Rab Nawaz made an attempt to snatch the rifle from Mst. Shakeela and in the process, the deceased and the witnesses sustained injuries, It was pleaded that Sher Zaman appellant was not present at home at the time of occurrence. Zulfiqar AN Shah PW-13 being Investigating Officer of the case arrested the accused and recovered .222-rifle from his house at his instance. Ikhlaq Ahmad, Dispenser Rural Health Centre Sohawa, PW-14 identified the hand-writing of Dr. Asjid Ali, Medical Officer, who having examined Mst. Payari Jan deceased, Amir Dad, Shah Nawaz and Raja Fazal Dad prepared their medical reports which were exhibited in the evidence. Malik Muhammad Bashir, PW.15, the then S.H.O, of Police Station Sohawa having recorded the statement (Ex.PA). Of Amir Dad complainant registered the case. The S.H.O, having prepared the injury statement of Mst. Payari Jan and injured witnesses got them medically examined. He also prepared inquest report and injury statement of the Rab Nawaz deceased and dispatched the dead- body to the mortuary. During the spot inspection, he secured blood-stained earth and fifty-three crime empties Out of which six were found lying in the courtyard of the house of the accused and one near the kitchen. The Investigating Officer handed over the case property to the Moharrir of the Police Station and completed the initial investigation handed over the same to his successor.
9. Sher Zaman accused in his statement under Section 342, Cr.P.C, in reply to the question "Why this case against you and why the PWs have deposed against you? Answered as under:- "Mst. Shakeela Bi daughter of my Uncle Rab Nawaz is a British born and well educated lady. Amir Dad, complainant of this case wanted her to be married with Majid son of his sister, but Mst.
Shakeela was against the marriage with Majid because he was totally illiterate person, had no business whatsoever and his eyes were.... and Mst. Shakeela refused to marry him and took shelter in our house and asked my father to interfere, It was on 28.4.1996 that the date of marriage was going to be fixed and parents of Mst. Shakeela along with the injured PWs. Came to our house to take her forcibly back. At that time, the complainant and his brother Fazaldad were armed with guns. They tried to take her back forcibly. She retaliated and said that she would kill herself and will not go for the purposes of marriage with Majid. She picked my licensed 222 rifle from the bedroom and tried to commit suicide. My father Gul Zaman and her brother Shah Nawaz PW tried to snatch the rifle and during the scuffle burst fire went off as a result of which, both the deceased and the injured PWs received injuries. At that time, I was not present in my house. After the occurrence, the complainant Amir Dad threatened Shah Nawaz and Mst. Shakeela that they will be involved in the murder case and took command of the situation and fabricated this false case against me just to usurp the property belonging to Rab Nawaz, It is also worth mentioning that now only the complainant is present, who is direct beneficiary of all the properties belonging to the deceased.
The children of the deceased are married to the children of the complainant and they are under the influence and control of the complainant. They are all still in England and after the death of their parents, the complainant knows that. They are not likely to come to Pakistan. Now the complainant with connivance of the other family members planted this false case upon me. The police deliberately concealed the statement of Mst. Piari Jan as she was not supporting the version of the complainant. The police and the complainant also took the signatures of Shah Nawaz on blank papers and he is also under the threats of being involved in this murder case. All the investigation is not only mala fide, but false and dishonest.-The. Inspector Muhammad Bashir arrested me from my house on 2.5.1996. My rifle was with the police from the first day, but the police just to strengthen the case against me, made false story of subsequent recovery of rifle. My rifle is licensed weapon but the police deliberately refused to annex my license with the record to make the case triable by the Special Court. All the PWs are closely related to the complainant and Shah Nawaz is under the threats and control of the complainant. The police deliberately did not include the statement of my wife, my father and Mst. Piari Jan."
10. Learned counsel lor the appellant in the light of the defence version introduced during the trial contended that Sher Zaman was not present at home at the relevant time and that the fateful occurrence was not intentional rather the deceased and the witnesses incidentally were caused injuries. Learned counsel contended that the deceased being the real uncle of the appellant was residing in the adjoining house of the appellant and had no dispute with the appellant and that no independence evidence was brought on record in proof of the dispute relating to the construction of bathroom and the pendency of the civil suit between the parties. Learned counsel argued that with the exclusion of motive part of the prosecution story, there was no reason for the appellant to open attack and caused injuries to the deceased and the witnesses. Learned counsel submitted that while putting the defence version in juxta-position to the prosecution story, it would not appeal to mind that the occurrence took place in the manner as suggested by the prosecution and the benefit arising in the situation would go to the appellant and he would be. Entitled to acquittal.
Learned counsel argued that Rab/ NaWaz sustained only one injury whereas Mst. Payari Jan as per medical evidence was suffering from lepratomy and thus the possibility that she died as a result of lepratomy and the cause of her death was not the injury sustained by her in the occurrence would not be ruled out. Learned counsel has next argued that the doctor, who initially medically examined Mst. Payari Jan and the witnesses was not examined and thus the injuries allegedly sustained by the witnesses and the deceased were not proved to have been caused with fire-arm and in consequence thereto the conviction and sentence of the appellant for causing injuries to the deceased and the witnesses was bad in law. Learned counsel lastly argued that even if the prosecution story is believed as gospel truth, the motive part of the same having not proved beyond doubt, the extreme penalty of death in the given facts was not justified, In nutshell, learned counsel while pointing out the minor discrepancies and contradictions in the prosecution evidence has contended that the charge was not proved beyond doubt and it was a case of acquittal.
11. Learned counsel representing the complainant and the State, on the other hand, submitted that it was a broad day light occurrence, which took place early in the morning, and the defence having admitted the occurrence to have taken place in the house of Gul Zaman has not brought any evidence in support of the defence version. Learned counsel argued that the witnesses were not parties in the dispute relating to the construction of bath-room between the two brothers and that there was no reason with them to make a false statement against the appellant in a case of capital punishment. He further argued that the ocular account furnished by the injured and natural witnesses alone was sufficient to sustain the conviction and sentence.
12. We have heard the learned counsel for the parties and gone through the evidence with their assistance. The occurrence took place at 8-0 clock in the morning in the house of the appellant when in the normal circumstances; the people in the. Village are available at their houses. The taking place of the occurrence and sustaining injuries by the witnesses and the deceased in the house of the appellant is admitted, It is also admitted that the licensed rifle of the father of the appellant was used and that the deceased and the witness went to the house of the appellant peacefully with empty handed. The defence version introduced at the trial was not pleaded during the investigation and further no attempt was made to bring any evidence in support of the said version so much so the appellant has not made a statement on oath under Section 340(2), Cr.P.C, in support thereof. The defence has not even made a request to the Court to Mst. Shakeela Bibi in the witness-box or produced Gul Zaman, father of the appellant, who was admittedly present in.
The house at the time of occurrence in support of the defence version. Learned defence counsel has laid much stress that 222-rifle was allegedly used in the occurrence was licensed rifle of Sher Zaman and consequently the case was not triable by the Special Court established under the Suppression of Terrorist Activities Act, 1975, therefore, the conviction and sentence awarded to the appellant by the said Court was without jurisdiction. Learned counsel argued that sufficient evidence was brought on record in the connected case registered against the appellant under Section 13 of the Arms Ordinance, 1965, that. The 222-rifle was a licensed rifle and that the record- keeper of the concerned officer affirmed that the license of the rifle in question was issued in the name of Sher Zaman. The learned counsel contended that the weapon used in the occurrence was not illicit Arms, therefore, the conviction of the appellant under Section 13 of the West Pakistan Arms Ordinance, 1965, was not sustainable and as a result thereof, the trial of the appellant by the Special Court for the charge of murder would be corum non justice. We may observe that the ultimate acquittal from the charge under Section 13 of the Arms Ordinance, 1965, would not be a ground for holding that the Trial Court had no jurisdiction to proceed with the trial in a case in which murder was committed with the automatic or semiautomatic unlicensed weapon as a schedule offence. The cognizance of a schedule offence allegedly committed by a person is taken in the light of the allegations contained in the FIR and not the ultimate result, In the present case according to the story contained in the F.I.R, the appellant while armed with automatic 222 unlicensed rifle caused injuries to the deceased and witnesses, therefore, notwithstanding the subsequent proof of the use of licensed weapon, there would be no defect in the exercise of jurisdiction by the Special Court in the case in which a schedule offence was committed and thus the contention of the learned counsel that the special Court had ho jurisdiction was without any substance. We may further observe that the learned Additional Sessions Judge was holding the additional charge of Special Court and even if the case against the appellant was not triable as a schedule offence under the Suppression of Terrorist Activities Act, 1975, the trial could competently be conducted y the learned Additional Sessions Judge in the exercise of its general jurisdiction as no prejudice was caused to the appellant either in procedure or in substantial law. While' examining the prosecution evidence in the light of the defence version, we find that except putting the suggestion to the Witnesses, the defence has not brought any material on record either through the mouth of the prosecution witnesses or by producing evidence in defence to establish that the occurrence did not take place in the manner as suggested by the prosecution. The witnesses accompanied the deceased to the house of the appellant with the purpose to settle the family differences if any between .The two brothers and to agree the father of the appellant for participation in the marriage of the son and daughter of Rab Nawaz deceased, It is common in our society that efforts are made for reconciliation between the relatives at such occasions and it was not the case of the defence that the deceased and the witnesses intended to commit an aggression or cause any damage to the inmates of the house of Gul Zaman. While judging the truthfulness of the two stories in the light of the evidence and the circumstances under which the occurrence took place, the defence story would fall to the ground. The admission of defence of happening of the occurrence in the house of the appellant and sustaining of the injuries by the deceased and the witnesses as a result of firing with 222-bore rifle belonging to Sher Zaman would provide a strong corroboration to the ocular account in proof of the charge against the appellant.
We, therefore, having examined the evidence are not convinced to accept that the motive behind the occurrence was the dispute over the construction of bath as no evidence was brought on record in this behalf. The prosecution case is that there was nothing abnormal on the day of fateful occurrence and the appellant on noticing the presence of the witnesses and the deceased in the Veranda of his house abruptly opened firing and the defence on the other hand instead of offering any explanation why only the appellant without any reason in- the background acted in such manner denied the charge. We find that the prosecution as well as the defence has not disclosed the true reason behind the occurrence and the immediate cause for such an action of the appellant. The circumstances would show that something suddenly happened on arrival of the deceased and the witnesses in the house of the appellant and as a result of which the appellant while acting desperately in retaliation made indiscriminate firing. The suddenness of the occurrence in the present case, however, would not be a mitigating circumstance in favour of the appellant who without any excuse while acting in a cruel manner took lives of Rab Nawaz and Mst.
Piyari Jan and caused injuries to the witnesses. The dispute if any of the appellant, was with Rab Nawaz and not with Mst. Payari Jan and the witnesses who only accompanied with Rab Nawa2 to the house of the appellant for the purpose of reconciliation. From the evaluation of the evidence, we have formed an opinion that the appellant was guilty of the charge of murder of Rab Nawaz and Mst. Payari Jan and was rightly convicted by the learned Trial Judge and awarded the maximum penalty of death as there was no mitigation in his favour for lessor punishment. We, therefore, maintain the conviction and sentence awarded to the appellant under Section 302(b), Cr.P.C, on two counts. However, the conviction and sentence awarded to the appellant under Sections 324 and 337-F(ii)(iv), PPC for the same injuries was not proper. We, therefore, while maintaining the conviction and sentence awarded to him for the charges under Section 337-F(ii)
(iv), PPC acquit him from the charge under Section 324, PPC.
13. This appeal with the above modification in the conviction and sentence stands dismissed. The sentence of death awarded to the appellant on two counts is confirmed.