' ASIF SAEED KHAN KHOSA, J.--- Majid Ali Shah appellant was convicted on six counts of an offence under section 302, P.P.C. Vide judgment dated 28-5-2001 rendered by the Judge, Special Court No,1 (Anti-Terrorism), Mullan and was sentenced to death by way of Qisas on each count and a fine of Rs,1,25,000 on each count or in default of payment thereof to undergo rigorous imprisonment for three years on each count. Out of the amount of fine, if recovered, a sum of Rs,1,00,000 on each count was ordered to be paid to the heirs of each deceased. The said appellant was also convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and was sentenced to death. He was further convicted for an offence under section 324, P.P.C. & was sentenced to rigorous imprisonment for ten years and a fine of Rs,50,000 or in default of payment thereof to undergo rigorous imprisonment for two years. He was also convicted for an offence under section 337-A(i), P.P.C. And was sentenced to rigorous imprisonment for two years by way of Tazir and to pay a sum of Rs,10,000 to the injured victim namely Muhammad Asif by way of Daman. He was further convicted for an offence under section 392, P.P.C. Read with section 412, P.P.C. And was sentenced to rigorous imprisonment for ten years and a fine of Rs,10,000 or in default of payment thereof to undergo rigorous imprisonment for two years. The said appellant was also convicted for an offence under section 337-J, P.P.C. And was sentenced to rigorous imprisonment for ten years. Through the same judgment the said learned Court had also convicted Sohail Jabbar appellant on six counts of an offence under sections 302/109, P.P.C. And he was sentenced to death by way of Qisas on each count and a fine of Rs,1,25,000 on each count or in default of paynient thereof to undergo imprisonment for three years on each count.
' Out of the fine, if recovered, a sum of Rs,1,00,000 on each count was ordered to be paid to the heirs of each deceased. He was also convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and was sentenced to death. He was further convicted for an offence under sections 324/109, P.P.C. And was sentenced to rigorous imprisonment for ten years and to pay a fine of Rs,50,000 or in default of payment thereof to undergo rigorous imprisonment for two years. He was further convicted for an offence under sections 337-A(i)/109, P.P.C. And was sentenced to rigorous imprisonment for two years by way of Tazir and to pay a sum of Rs,10,000 to the victim namely Muhammad Asif by way of Daman. He was also convicted for an offence under section 392, P.P.C.
Read with section 412, P.P.C. And was sentenced to rigorous imprisonment for ten years and a fine of Rs,10,000 or in default of payment thereof to undergo rigorous imprisonment for two years. This appellant was also convicted for an offence under sections 337-J/109, P.P.C. And was sentenced to rigorous imprisonment for ten years. All the sentences of imprisonment passed against both the appellants were ordered by the learned trial Court to run concurrently and the benefit of ' section 382-B, Cr.P.C. Was extended to both the appellants. Majid Ali Shah appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,410 of 2001 and Sohail Jabbar appellant has preferred Criminal Appeal No,869 of 2001 before this Court in that regard. We have heard both these appeals together alongwith Murder Reference No,44-T of 2002 and we propose to decide all these matters together through the present consolidated judgment.
2. The prosecution case unfolded in the F.I.R. Was that Maqsood Ahmad complainant was a Professor at Government College, Sahiwal and his brother namely Ghulam Ahmad, who lived in New York, United States of America and used to do business there, had got his house constructed in the Officers Colony, Sahiwal. About one month before the present occurrence the said brother of the, complainant had returned to Sahiwal and had taken up his residence on the first floor of the said house alongwith his wife namely Zakia Parveen and two other relatives namely Tariq Mehmood and Farrukh Iqbal who were students. The complainant had been asked by his said brother to procure some pipes because the latter wanted to get gas installed in the above mentioned house. On 26-12-1999 the complainant procured the required pipes and after finding the main gate of the house of his brother closed the complainant climbed over the wall and got the said pipes placed in the compound of that house believing that his brother namely Ghulam Ahmad might have gone to his village. In the morning of 27-12-1999 the complainant again went to the house of his brother but nobody answered the door bell whereafter the complainant rang up his nephew Irfan Ahmad at Chicha Watni and asked him to find out from the village whether the complainant's brother had actually gone to that village or not. At about 2/3 p.m. On 28-12-1999 another brother of the complainant namely Allah Ditta also visited the house of Ghulam Ahmad but he also failed to receive any response therefrom whereafter he contacted the complainant in that regard. The complainant and his brother Allah Ditta then contacted the parents of Zakia Parveen, their sister-in-law and wife of Ghulam Ahmad, who also confirmed that Ghulam Ahmad and Zakia Parveen had not visited them. Upon this the complainant and Allah Ditta got worried, went to the house of Ghulam Ahmad, broke the locks of that house open and entered that house whereupon they saw Zakia Parveen lying dead in the hall, Ghulam Ahmad and his mother namely Fazal Bibi lying dead in a room and Imran lying dead in a pool of blood in another room. They also found Allah Ditta's son namely Muhammad Arif lying unconscious in another room of that house.
The hue and cry raised by the complainant and Allah Ditta attracted Hafiz Asghar Ali and Javed Mukhtar to the spot. The complainant party, however, did not find Tariq Mehmood and Farrukh Iqbal in that house. Leaving Allah Ditta and Javed Mukhtar to guard the dead bodies at the spot Maqsood Ahmad complainant took the injured person namely Muhammad Asif to the hospital for treatment and then proceeded to report the matter to the police. F.I.R. No,523 was registered at Police Station Farid Town, Sahiwal in that regard upon the statement of Maqsood Ahmad complainant at 5-45 p.m. On 28-12-1999 for an offence under section 302, P.P.C.
3. The case in hand was investigated by Ali Imran, S.H.O. (P.W.20) who took various steps during the investigation of this case including recording of statements of witnesses, effecting recoveries from the place of occurrence, arresting the appellants and affecting recoveries from them. Lady Dr. Romana Latif (P.W.1), Dr. Waseem Izhar (P.W.2) and Dr. Muhammad Zahid (P.W.3) had conducted post-mortem examinations of the dead bodies six persons who had died in this case. Dr. Ijaz Qutab (P.W.4) had medically examined the injured victim namely Muhammad Asif. Dr. Muhammad Tariq (P.W.5) had.Submitted a report before the local police regarding an inquiry made by it in respect of the effects of chloroform/ether on human body. After submission of the challan before it the learned trial Court framed a charge with 25 heads against the appellants to which they pleaded not guilt and claimed a trial.
4. During the trial the prosecution produced as many as twenty witnesses in support of its case against the appellants. Muhammad Asif (P.W.18) furnished the ocular account of the incident in question. Ghulam Jillani (P.W.13) stated about overhearing a conspiracy being hatched by the appellants. Ghulam Ahmad (P.W.14) deposed about having seen the appellants together outside the house of the deceased soon after the occurrence. Maqsood Ahmad, complainant (P.W.17), Muhammad Asif (P.W.18) and Shahid Iqbal (P. W .19) deposed about the motive. Shakhawat Ali Sial (P.W.12), Hafiz Asghar Ali (P.W.16) and Maqsood Ahmad complainant (P.W.17) proved the recoveries effected during the investigation of this case and also stated about identification of the recovered articles which had been taken away from the house of occurrence during the alleged incident. The medical evidence was provided by Lady Dr. Romana Latif (P.W.1), Dr. Waseem Izhar (P.W.2), Dr. Muhammad Zahid (P.W.3), Dr. Ijaz Qutab (P.W.4) and Dr. Muhammad Tariq (P.W.5). Ali Imran, S.H.O.
(P.W.20) deposed about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
5. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence.
They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. But they produced one witness namely Mst. Farzana in their defence as D.W.I.
6. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeals and the connected murder reference before this Court.
7. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the occurrence in this case had taken place during the dead of a night, as a matter of fact the said occurrence had remained unwitnessed; no culprit had been nominated in the F.I.R., no motive was set up in the F.I.R. And the motive advanced during the trial had remained far from being proved; the evidence regarding Wajtakar and conspiracy was doubtful; the recoveries effected in this case were sham; the statement of the injured witness namely Muhammad Asif (P.W.18) did not inspire confidence as he had made significant improvements; the medical evidence belied the ocular account regarding administering of poison to the deceased and the injured victim before causing of injuries upon them; and, therefore, the prosecution had failed to prove its case against the appellants beyond reasonable doubt.
' As against that the learned counsel for the State and the complainant have maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
8. After hearing the learned counsel for the parties and going through the record we have observed that Muhammad Asjf (P.W.18) is the star-witness of this case who had not only received injuries during the incident in question but he had also been recovered in an unconscious state by the complainant and others from the house where the occurrence had taken place. This witness had provided elaborate details about the manner in which a gruesome bloodbath had taken place in the house of Ghulam Ahmad deceased during the night between 25/26-12-1999 and also about the roles played by the present appellants in the said grisly incident. The improvements made by this witness before the learned trial Court upon his statement (Exh.D.B.) made before the police have been found by us to be minor in nature and incidental in character. This witness had absolutely no or animosity against the appellants so as to prompt him to falsely implicate them in a case of such a grave nature. The straightforward and forthright statement made by this witness before the learned trial Court has not only inspired confidence but has also impressed us by its consistency. The cross-examination of this witness by the defence had mainly confined itself to confront him with his earlier statement made before the police and it has already been observed by us above that the improvements pointed out by the defence in that regard were minor and insignificant and the same did not have much of a bearing upon the fate of this case.
9. It may be true that the medical evidence available in this case did not confirm the assertion of Muhammad Asif (P.W.18) regarding administering of poison to the victims by Majid Ali Shah appellant through serving them with Kheer but at the same time it cannot be lost sight of that this witness had not only stated before the police but had also maintained before the learned trial Court that the said appellant was also using his handkerchief (for making the victims unconscious through the use of chloroform). Muhammad Asif (P.W.18) had found full support from the medical evidence regarding the injuries caused to him and to the B other victims inasmuch as the medical evidence confirmed the time o occurrence, the locale of injuries and the weapons used as stated by this witness.
10. Apart from what has been observed above the statement made by Ghulam Jillani (P.W.13) regarding overhearing the appellants hatching a conspiracy and the statement made by Ghulam Ahmad (P.W.14) in respect of the appellants having been seen together outside the relevant house soon after the incident had provided corroboration to the implication of the appellants by Muhammad Asif (P.W.18). Strong and independent corroboration was also available in this regard from the evidence produced by the prosecution in respect of the motive and the recoveries. Shahid lqbal (P.W.19) was himself a person desirous of going to the United States of America through the courtesy of Sohail Jabbar appellant, Maqsood Ahmad complainant (P.W.17) had himself handed over US $ 24,000 to Sohail Jabbar appellant on different occasions for the purpose of sending Shahid lqbal (P.W.19) and Tariq Mehmood deceased to the United States of America and Muhammad Asif (P.W.18) was a witness of the reprimand of Sohail Jabbar appellant by Ghulam Ahmad deceased and the consequent bitterness generated between the parties on that score. It is available on the record that Sohail Jabbar appellant was in the business of sending people abroad and an air ticket issued to Shahid lqbal in that regard had also been produced in the evidence establishing return of that person from Kathmandu, Nepal after an abortive attempt to be smuggled to the United States of America. The recoveries of articles taken away from the house of Ghulam Ahmad deceased from the appellants' possession during the investigation of this case and identification of the said articles by different witnesses had also gone a long way in providing corroboration to the statement made by Muhammad Asif (P.W.18).
11. Another circumstance unmistakably pointing towards the guilt of the appellants is that the dead bodies of Tariq Mahmood and Farrukh lqbal had been recovered from the ground floor of the house of Ghulam Ahmad deceased at the pointing out of Majid Ali Shah appellant many days after registration of the F.I.R. And recovery of the other dead bodies from the first floor of that house. It was only the perpetrator of the offences in question who could have known the place of presence of those dead bodies in the ground floor of the relevant house as the said floor was unoccupied and locked at the relevant time.
12. For what has been discussed above we have arrived at a confident conclusion that the prosecution had indeed succeeded in proving its case against the appellants beyond reasonable doubt. Sohail Jabbar petitioner had the requisite motive to do away with the victims and Majid Ali Shah appellant had acted as a mercenary for his friend and comrade, i,e, Sohail Jabbar appellant.
Mst. Farzana (D.W.1) had clearly admitted existence of a close connection and relation between the two appellants and, thus, the entente, camaraderie, confederacy and esprit de corps between the two appellants was a fact which could not be disputed by the defence. Although Mst. Farzana (D.W.1) had tried to set up an alibi for her brother namely Majid Ali Shah appellant yet the fact remains that her attempt in that regard had remained futile as the same was a belated attempt and was not supported by any independent evidence. She had admitted that she had never joined the investigation of this, had not got her statement recorded before the Investigating Officer and had not submitted any application to the higher authorities of the police regarding innocence of Majid Ali Shah appellant on the basis of his alibi. Thus, the statement made by Mst. Farzana (D.W.1) before the learned trial Court in this regard cannot be taken by us with any degree of seriousness and the same can be brushed aside as a last ditch effort by a sister to save her brother from the gallows.
13. The case in hand is one of callous, brutal and merciless butchery and carnage of six innocent persons and seriously injuring of another in cold blood and in a premeditated and calculated manner. Sohail Jabbar appellant might not have caused any injury to any of the victims but he has emerged in this case as the mastermind of this gory incident and Majid Ali Shah appellant has turned out to be a mercenary executing innocent person for no ostensible personal motive. Thus, both the appellants have failed to evoke our sympathy and no ground for I mitigation of their sentences has been found by us in this case. The normal wages of the crime of murder is death and in the circumstances of this case the appellants deserve no less.
14. For what has been discussed above both these appeals are dismissed and the convictions and sentences of both the appellants recorded by the learned trial Court are hereby upheld and maintained with the modification that the convictions and sentences of the appellants recorded by the learned trial Court for offences under sections 302, P.P.C. And 302/109, P.P.C. On each count by way of Qisas shall be treated as convictions and sentences by way of Tazir and the sentences of fine passed by the learned trial Court for the said offences on each count shall be treated as compensation the entire of which shall be paid to the respective heirs of the deceased on each count failing which the appellants shall undergo simple imprisonment for six months on each count.
15. Murder Reference No,44-T of 2002 is answered in the affirmative.
16. The sentences of death passed against Majid Ali Shah and Sohail Jabbar appellants by the learned trial Court are confirmed.