PLJ 2022 Cr.C. 548 (DB)
Murder Cases--
----Unfortunately, it is a common phenomenon in rural neighbourhood of Punjab that in murder cases, along with actual offenders some innocent persons are also dragged and for this reason it is always considered appropriate to peruse record with extreme care and watchfulness. [P. 556] A
2014 SCMR 749.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 337-F(vi), 427 & 148--Anti-Terrorism Act, (XXVII of 1997), S. 7(a)--Conviction and sentence--Challenge to--Qatl-e-amd--Modification is sentences--This is requirement of such circumspective approach that eyewitness account be appraised by scrutinizing it in reference to corroboration from independent source of unimpeachable nature--If during this scrutiny ocular account is found confidence inspiring but is not corroborated from some other unshakeable source, resort should be had to alternate sentence of imprisonment for life instead of inflicting capital sentence--Motive behind every case of homicide has its own importance more so when five persons are done to death--Projected facts of crime give reflection that assailants were having venom of snake against victims but unfortunately reason of such vengeance was not brought to limelight--Similarly due to failure of prosecution to prove motive sentence of death was converted into imprisonment for life in cases--Prosecution failed to draw a distinguishing line between perpetrators who fired at vehicle in which four deceased were boarded and vehicle in which (deceased) along with “Y” since dead were sitting--There is a consistent view of Hon'ble Apex Courts that in cases wherein it is uncertain that whose fire shot proved fatal then alternate sentence of imprisonment of life to be awarded--All appellants are also awarded conviction u/S. 7(a) of ATA, 1997 which upon review of record is also found by the Court to be suffering from perversity--Admittedly, offence was outcome of personal vendetta and is not committed with mens rea mentioned in Section 6(1) of ATA, 1997--After scrutinizing evidence produced by prosecution we do not find any circumstance to label act of appellants was with intentions and designs mentioned in Section 6(1) of ATA, 1997 rather was an outcome of personal enmity, thus conviction and sentence awarded under Section 7(a) of ATA, 1997 to appellants is set-aside--Neither post-mortem of (deceased) was conducted nor details of his injuries or even causes of his death were brought on record through any of two doctors during trial thus conviction under Section 302(b), PPC in this regard is also set-aside--Though “Y” did not appear in witness box but due to his death thus no exception can be taken from absence of his deposition and accordingly corresponding conviction is maintained.
[P. 556, 559, 560, 561 & 562] B, C, E, F, G H & I
2012 SCMR 1936; 2013 SCMR 1602 and PLD 2020 SC 61.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd-Infliction of alternate sentence of imprisonment for life under Section 302(b), PPC will meet ends of justice--In this regard firstly it is observed by us that motive set-out by prosecution remained unproved and no reason is divulging from record behind commission of instant crime--Failure of prosecution to prove canvassed motive is always regarded a sufficient extenuating circumstance which warrants infliction of alternate sentence of imprisonment of life under Section 302(b), PPC.
[P. 560] D
2010 SCMR 97.
M/s. Azam Nazir Tarrar, Wajid Maqsood, Sulman Bahadar Rana, Adnan Farooq and Mudasser Nazir Chattha, Advocates for Appellants.
M/s. Muhammad Ahsan Bhoon, Abdul Razzaq Younas, Fiaz Ahmad Ranjha, Faisal Munir Malik and Madiha Gohar, Advocates for Complainant.
Rai Akhtar Hussain, DPG for State.
Date of Hearing: 1.12.2021.
Judgment
Ch. Abdul Aziz, J.--Appellants, namely, Muhammad Riaz, Muhammad Maqsood alias Bao, Mashooq Ali, Subah Sadiq alias Sobay Khan, Rasheed alias Sheedu, Muhammad Arshad alias Billy and Abdul Hameed alias Hameed, involved in case FIR No. 13 dated 11.01.2014 under Sections 302, 324, 427, 337-F(iii), 337-F(iv), 337-F(v), 337-F(vi), 148, 149, PPC read with Sections 21-L and 7 of the Anti-Terrorism Act, 1997 registered at Police Station Mustafabad, Kasur were tried by learned Judge, Anti-Terrorism Court-I, Lahore. The learned trial Court vide judgment dated 26.05.2017 while acquitting Muhammad Aslam, Muhammad Ashraf and Muhammad Anwar, proceeded to, convict and sentence the appellants in the following terms:
i. Under Section 302(b), PPC: to suffer death sentence each on four Courts for each deceased. Each convict was also ordered to pay an amount of Rs. 3,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of each deceased, in case of non-payment, each convict shall further undergo six months S.I.
ii. Under Section 7(a) of ATA, 1997 to suffer death sentence each on four counts for each deceased. Each convict was also ordered to pay an amount of
Rs. 3,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of each deceased, in case of non-payment, each convict shall further undergo six months S.I.
iii. Under Section 324 PPC: to undergo rigorous imprisonment for seven years each for attempt to commit murder of Yaqoob alias Sahib Din (since died). Each convict is also ordered to pay fine of Rs. 50,000/- each and in default thereof to further undergo one month SI each.
iv. Under Section 337-F(vi), PPC to undergo rigorous imprisonment for seven years each for causing injury and fracture of Yaqoob (since died). Each convict is also ordered to pay Rs. 50,000/- each to the legal heirs of Yaqoob and in default thereof to shall be treated u/s 337-Y92), PPC.
v. Under Section 148, PPC to undergo imprisonment for three years each along with fine of Rs. 10,000/-each and in default thereof to further undergo one month SI each.
i. Under Section 427, PPC to undergo imprisonment for two years each for damaging the
All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was extended to the convicts.
Challenging their conviction and sentence, aforementioned appellants filed Criminal Appeal No. 46468 of 2017, Nasir Javaid (complainant) filed Criminal Appeal No. 47443 of 2017 against acquittal of Muhammad Aslam, Muhammad Ashraf and Muhammad Anwar (Respondents No. 1 to 3) whereas learned trial Court sent reference under Section 374, Cr.P.C. which was numbered as Capital Sentence Reference No. 10-T-2017 for the confirmation or otherwise of death sentences awarded to Muhammad Riaz, Muhammad Maqsood alias Bao, Mashooq Ali, Subah Sadiq alias Sobay Khan, Rasheed alias Sheedu, Muhammad Arshad alias Billy and Abdul Hameed alias Hameed (appellants). All these matters are being disposed of through this single judgment.
2. Succinctly stated the case of prosecution as it gleans from the complaint (Exh.PN) lodged by Nasir Javed (PW.13) is to the effect that he is resident of Sattoki, District Kasur; that on 11.1.2014, he along with his brother Masood Ahmad Bhatti, Babar Sarfraz, Khalid Bashir, Ameer Ali, Umer Farooq, Ijaz Ahmad, Mehmood Ahmad, Muhammad Irfan, Yaqoob and Zia ullah while boarding in two cars and a Vigo Dala was proceeding to Lahore so as to attend Mehfil-e-Millad being held in the house of Masood Bhatti; that at about 05:00 p.m. when they all crossed the Toll Plaza Mustafabad, two cars and three motorcycles crossed their vehicles and forcibly stopped Vigo Dala of Masood Ahmad Bhatti; that they saw Muhammad Riaz, Maqsood, Mashooq, Arshad Ali alias Billy, Rasheed alias Shedu, Ashraf, Aslam, Hameed Pandoki wala, Anwar Sidhupuray Wala all armed with Kalashnikovs whereas Subeh Sadiq armed with rifle M.I6 and six unknown also armed with deadly weapons de-boarded from their vehicles and made indiscriminate firing at the Dala of Masood Bhatti and all the persons seated therein died at the spot; that the accused persons who were seated in another vehicle coming behind also made indiscriminate firing upon Zia Ullah and Yaqoob alias Sahib during which Zia Ullah succumbed to the injuries, whereas Yaqoob sustained severe injuries; that they all seated in third vehicle witnessed the whole incident in daylight. The motive behind this occurrence was that about 2/½/3 months before the instant occurrence one Sarja Bhatti and his son were murdered and their legal heirs had strong suspicion that Masood Bhatti was behind the scene and due to aforementioned reason the accused persons committed this occurrence.
That the aforementioned incident took place on main Ferozepur road due to which traffic from both sides stopped and the people after leaving their respective vehicle started running; that women and children started crying due to panic and fear; that some accused made indiscriminate firing on the general public which caused terror amongst them.
3. The investigation of the case was entrusted to Muhammad Arshad SI (PW. 16) who after receipt of information qua the occurrence visited the place of occurrence, prepared injury statements (Ex.PU, Ex.PV, Ex.PW and Ex.PX) and inquest reports (Ex.PY, Ex.PZ, Ex.PAA and Ex.PBB) of Masood Ahmad, Babar Sarfraz, Ameer Ali and Khalid Bashir (deceased) respectively. He also prepared injury statement (Ex.PCC) of Muhammad Yaqoob alias Sahib. Thereafter, he prepared rough site-plan (Ex.PDD) of the place of occurrence and got prepared scaled site-plan (Exh.PG). He also recovered 700 empties of Kalashnikov (P21/1-700) and 25 empties of rifle 223 bore (P2/1-25) and Vigo Dala (P23), Toyota Corolla No. 3440-LEF (P24) and Toyota Corolla Car No. 2124-LEC (P25) vide recovery memos. (Ex.PP and Ex.PR), respectively. On 12.01.2014 District Police Officer Kasur constituted JIT and Ghulam Fareed (PW-18) SHO Police Station B-Division, Kasur was one of the member of said JIT. On 13.01.2014, Ghulam Fareed SHO inspected the place of occurrence. On 05.04.2014 he recorded supplementary statement of Nasir Javed (complainant) wherein he nominated Asif @ Asu, Asif @ Kaki, Amujal Hans, Hameed, Zulfiqar and Mehboob. On 06.04.2014 he interrogated accused Riaz who got recovered Kalashnikov (P26) with five bullets (P27/1-5) which was taken into possession through recovery memo (Exh.PS). He then interrogated Maqsood who got recovered Kalashnikov (P28) with five bullets (P29/1-5) which were taken into possession through recovery memo. (Exh.PT). On 13.04.2014 accused Arshad alias Billy, Subeh Sadiq, Rasheed and Hameed made disclosure and in pursuance thereof Subeh Sadiq got recovered M-16 (P33) along with five bullets (P34/1-5) which were taken into possession through recovery memo. (Exh.PFF/1); accused Arshad alias Bily got recovered Kalashnikov (P30) with six bullets which were taken into possession through recovery memo. (Exh.PEE/1); accused Rasheed alias Shedu got recovered Kalashnikov (P37) with four bullets (P37/1-4) which were taken into possession through recovery memo. (Exh.PJJ/1); accused Abdul Hameed got recovered Kalashnikov (P38) with three bullets (P39/1-3) which were taken into possession through recovery memo. (Exh.PKK). He recorded statement of witnesses under Section 161, Cr.P.C. and got prepared report under Section 173, Cr.P.C.
4. Prosecution in order to prove its case against the appellants produced nineteen PWs including Nasir Javed and Umer Farooq and Rasheed Masih (PW.13 and P.15) who are eyewitnesses. Dr. Muhammad Ahmad and Dr.Ismail Zia (PW.3 and PW.20) who conducted post-mortem examination vide post-mortem examination reports (Exh.PA to Exh.PD/2), Muhammad Arshad SI (PW.16) and Ghulam Fareed Inspector (PW.18) investigated the case.
5. After conclusion of prosecution evidence, appellants were examined under Section 342, Cr.P.C., who refuted the allegations levelled against them and pleaded their innocence. The appellants did not appear under Section 340 (2), Cr.P.C., however, produced Ali Akbar SI and Muhammad Zeeshan Latif (DW.1 and DW.2) their defence. On the conclusion of trial, the appellants Muhammad Riaz, Muhammad Maqsood alias Bao, Mashooq Ali, Subah Sadiq alias
Sobay Khan, Rasheed alias Sheedu, Muhammad Arshad alias Billy and Abdul Hameed alias Hameed were convicted and sentenced
as afore-sated, whereas Muhammad Aslam, Muhammad Ashraf and Muhammad Anwar were acquitted. Hence, the instant appeals, against conviction & sentence, acquittal and Capital Sentence Reference.
6. It is contended on behalf of appellants that though apparently the information of crime was furnished to police within 1 ½ hours but it was made to look so through tampering of record and in fact the case was registered late in the night; that allegation of committing the crime was pointed towards fifteen persons, most of whom were related inter se, thus the case is of wider net; that none of the appellants is ascribed any specific injury and they are implicated with the general allegation of indiscriminate firing upon the vehicles in which the victims were boarded; that one Muhammad Yaqoob who received injuries during the same incident and was most important witness but his deposition could not be recorded as he was later done to death by the complainant; that safely a presumption can be drawn that Muhammad Yaqoob was not willing to support false prosecution case and accordingly he was eliminated; that though the prosecution came forward with a specific motive but miserably failed to prove it; that similarly, out of 725 crime empties collected during investigation by the police none matched with any of the weapons recovered from the appellants; that it can safely be concluded that the prosecution allegations remained uncorroborated; that it was a night time occurrence but prosecution failed to prove the source of light; that during investigation it came on record that appellant Mashook Ali was suffering from multiple ailments and this fact alone is sufficient to rule out the possibility of his participation in the crime; that even the presence of PWs at the spot is doubtful in nature and probably due to the same reason post-mortem examinations were delayed and that since prosecution failed to prove its case against the appellants, hence conviction awarded to them is to be set-aside.
7. On the other hand, learned law officer assisted by learned counsel for the complainant came forward with the submissions that the information of crime was furnished to police without any delay and this fact alone is sufficient for establishing the presence of eyewitnesses at the spot; that the crime scene is Grand Trunk Road (G.T.Road) and the incident occurred adjacent to a Toll Plaza, thus there is no question of absence of light; that all the seven appellants were specifically nominated in the crime report and that too with the allegation of having recklessly fired at the vehicle of deceased'; that recovery of 725-crime empties from the spot and number of injuries suffered by the victims directly coincide with the number of perpetrators; that even the post-mortem examinations were not conducted with the quantum of delay which may cast doubt about the truth of prosecution case; that the medical evidence is in conformity with the ocular account in reference to the nature of injuries and the duration with which these were caused; that corroboration, if any, can well be sought from the duly proved motive and recovery of weapons from the appellants; that even during investigation all the appellants were found guilty as they failed to prove their innocence; that appellants committed cold blooded murder of five innocent persons, hence they deserve no leniency and that since prosecution successfully proved its case against the appellants, thus the conviction awarded to them calls for no interference.
8. Learned counsel for the complainant while arguing Criminal Appeal No. 47443/2017 submitted that the Respondents No. 1 & 2 were specifically nominated in the FIR and during trial witnesses gave no concession to them; that the Respondents No. 1 & 2 were burdened with the allegation of not only present at the spot but also with the accusation of firing at the deceased; that initially they remained fugitive from law and then joined the investigation during which they raised plea of alibi which was accepted even without proper scrutiny and that since the guilt of Respondents No. 1 & 2 was established during trial, thus their acquittal was uncalled for. With these submissions, learned counsel for the complainant urged for the acceptance of Criminal Appeal No. 47443 of 2017.
9. Arguments heard. Record perused.
10. It divulges from the review of record that the case is arising out of an incident occurred on 11.01.2014 at about 5:00 p.m. during which five persons, namely Masood Bhatti, Babar Sarfraz, Khalid Bashir, Ameer Ali and Zia Ullah lost their lives, whereas two others, namely Rasheed Masih (PW.15) & Muhammad Yaqoob (since murdered) received injuries. The crime scene is adjacent to Mustafa Abad Toll Plaza situated on the main G.T. Road. The law was set into motion by complainant Nasir Javed (PW.13) through written application (Exh.PN) presented in the Police Station at about 6:30 p.m. leading to the registration of FIR (Exh.PE). The allegation of committing this crime was pointed towards 9-nominated and 6-unknown perpetrators. During investigation, the complainant Nasir Javed (PW.13) got recorded supplementary statement and lifted veil from the identity of three out of six unknown persons and nominated them as Asif alias Assu (killed in police encounter), Asif alias Kaki Billa (PO) and Ajmal Khan (PO).
"The tragedy may have been enacted by Mukhtar who has gone into hiding or Munawar who has been acquitted because the deceased Shabbir was alleged to have illicit relations with their sister, but many who have no visible nexus with this part of the story have also been roped in. It is so because it is customary in this part of the country to throw wide the net of implication to rope in all those who could possibly pursue the case or do something to save the skin of the one who is innocent or who is actually responsible for the commission of crime. The Courts, therefore, is required to exercise much greater care and circumspection while appraising evidence. "
12. In the above backdrop, we have examined the eyewitness account furnished by complainant Nasir Javed (PW.13), Umer Farooq (PW.14) and injured eyewitness Rasheed Masih (PW.15). Admittedly, Nasir Javed and Umer Farooq were closely related with Masood Bhatti (deceased) who was canvassed to be the main target of murderous assault. The relationship of PW.13 & PW.14 with Masood Bhatti by no stretch is an impediment for accepting their deposition. In fact it is some previous enmity or rancour which makes a witness partisan and his deposition, suspect evidence. We feel no reluctance to express here that though the eyewitnesses were cross-examined to the extreme limits but nothing as such was brought on file by the defence from which it may be gathered that they had some special reasons to falsely implicate the appellants in this case and that too by letting go the actual culprits. Though five persons were slain in a brutal manner but still the record speaks about the absence of some previous hard-pitched enmity between the two sides. To be precise, we have not come across any factor so as to tag the narrators of ocular account as interested witnesses. The next question pertains to their acclaimed presence at the spot which is found by us to be fully justified and established. As per prosecution case, the victims and PWs while boarding in three vehicles were on their way to Lahore for attending Mahfl-e-Milad in the house of Masood Ahmad Bhatti (deceased) and at Toll Plaza Mustafa Abad fell victim to the murderous assault. On one hand, the afore-mentioned reason for the presence of witnesses at the spot inspires confidence and on other hand the defence is found to have failed in establishing that at the relevant time, the witnesses should have been present at some other place in accordance with their ordinary pursuit of life. Though presence of Nasir Javed and Umer Farooq (PW.13 & 14) is established at the spot but the presence of Rasheed Masih (PW.15) is surrounded amidst doubt. Admittedly, Rasheed Masih (PW.15) claimed to be in receipt of injuries inflicted during crime but it is a hard reality that his name figures nowhere in the FIR (Exh.PN). Undoubtedly, the incident was of big magnitude in which five persons lost their lives but on this score alone latitude cannot be given to prosecution for drawing an inference that complainant forgot to mention the name of an injured witness in the FIR. Even otherwise, Rasheed Masih was in receipt of a single firearm injury near his right ankle joint and that too without a corresponding fracture. Above all, Rasheed Masih (PW.15) in his examination-in-chief laid no blame upon any of the appellants, thus we are compelled to oust his deposition from any consideration.
13. Reverting back to the deposition of Nasir Javed and Umer Farooq (PW.13 & 14) they are noticed to have furnished simple and straightforward account by saying that all the perpetrators recklessly fired at the vehicles in which the victims were boarded. The two eyewitnesses opted not to have resort to the unnatural narration of the occurrence wherein each assailant is assigned role of firing in reference to specific locale of injury. The deposition of the eyewitnesses is mainly challenged on the ground that the actual incident occurred much after the sun-set and in order to get rid of complication of darkness at the crime scene the eventful time was canvassed as 5:00 p.m. In this regard, learned counsel for the appellants made reference to the record of Rescue 15 (Exh.DN), Emergency Service 1122 (Exh.DO) and Police Log Book (Exh.DQ). So far as, Exh.DN is concerned, it evinces therefrom the relevant entry was made by Abid Mehmood SI at 6:50 p.m. but after his return from the crime scene. Obviously, 6:50 p.m. mentioned in Exh.DN is not the time of murder incident rather it pertains to the return of Abid Mehmood SI to police center. So far as Exh.DO is concerned, no witness from 1122 appeared in the dock for providing credibility to this document thus on this score alone it is excluded from consideration. As regard Exh.DQ it pertains to an information received at 6:55 p.m. through a phone call made by an unknown person, whereby, he reported about the crime. Suffice it to say that Exh.DQ lost its significance keeping in view the entry made by Abid Mehmood SI in Exh.DN whereby he returned to Rescu-15 at 6:50 p.m. Admittedly, it reasonably evinces from Exh.DN that much before 6:55 p.m. police had gathered information about the crime. To be precise, the aforementioned documents in no manner cast doubt about the time of occurrence mentioned in the First Information Report. Keeping in view the time of occurrence as 5:00 p.m., there was sufficient light at the crime scene so as to exclude every possibility of mistaken identification. The witnesses escaped unhurt and it was due to the factor that they were sitting in third vehicle and probably the assailants failed to notice their presence. The sheer luck of witnesses to have survived out of the ferocious attack of their adversaries cannot be considered a factor adverse to their acclaimed presence. Admittedly, no witness from the Toll Plaza appeared in the Court to support the prosecution case but it is quite natural as an ordinary person expresses reluctance to pock his nose in such incidents so as to avoid its wrath. Last but not the least, one of the injured witnesses namely Muhammad Yaqub though did not appear before the trial Court but it was due to his death. During cross examination it came on record that Muhammad Yaqub (injured) was murdered by complainant Nasir Javed (PW.13) but nothing beyond it was placed before the trial Court. The reason and background in which Muhammad Yaqub (injured) was statedly murdered by Nasir Javed (PW.13) remained undisclosed so no inference against prosecution can be drawn.
14. The medical evidence in this case was furnished by Dr.Muhammad Ahmad and Dr.Ismail Zia (PW.3 and PW.20). Former, conducted the autopsy of Masud Ahmad Bhatti, Aamir Ali, Baber Sarfraz and Khalid Bashir (deceased), whereas the latter medically examined Muhammad Yaqub (since dead) and Rashid Masih (PW.15). All the post-mortems were conducted on the very night of the incident and that too without some extraordinary delay. Such swift holding of autopsy reflects positively upon the prompt registration of FIR and excludes possibility of concoction and absence of witnesses from the spot. Though the post-mortem examination of Zia Ullah (deceased) was not conducted but due to an application given by his heirs in this regard. The most important aspect noticed from the medical evidence is the number of injuries as Masud Bhatti, Baber Sarfraz, Khalid Bashir and Ameer Ali were in receipt of 18, 11, 13 and 5 firearm entry wounds respectively. Needless to mention here, the aforementioned injuries give a clue that the crime was committed by more persons than two or three. We have intentionally withheld ourselves from giving an observation about the injuries of Muhammad Yaqub (injured) as he did not appear before the trial Court. To conclude, it is observed that medical evidence supports the case of prosecution about the time of incident, the kind of weapons used in the crime and the duration within which these were caused.
16. We have further observed that during spot inspection 700 crime empties of 7.62 caliber and 25 casings of .223 bore were secured by the police from the crime scene. During investigation, though weapons were recovered from all the appellants but according to PFSA report (Exh.PVV) none of them matched with the crime empties secured from the spot. Needless to mention here that such report of PFSA is of no help to the prosecution.
17. In the aftermath of above discussion, we will like to reiterate here that though the presence of witnesses at the spot is established and their deposition inspires confidence but still due to the implications of about 14 persons in the case we are compelled to be at our toes for resorting to a circumspective approach while deciding the ultimate fate of the case and quantum of sentence. Firstly, it is noticed by us that Mashooq Ali (appellant) was also assigned the role of active participation in the crime but overwhelming documentary evidence (Exh.DX) was led to prove that he was suffering from multiple ailments and was aged about 56 years on the eventful day. This fact was even admitted by Ghulam Fareed inspector (PW. 18) during his cross-examination. In these circumstances, it appears strange that a man suffering from multiple diseases having naive physical condition will actively participate in an incident like the instant one. Thus, as an abundant caution conviction awarded to Mashooq Ali (appellant) is set-aside and he is acquitted from the case.
"Prosecution though not called upon to establish motive in every case, yet once it has set up a motive and fails to prove the same, then prosecution must suffer the consequence and not the defence".
Secondly, it is noticed by us that none of the 725 crime empties secured from the spot matched with any of the weapons recovered from the respective appellants. From this shortcoming we are left clueless to ascertain the volume of shots fired by each appellant and to gauge the extent of their participation in the incident. Thirdly, admittedly, all the appellants are assigned role of firing at the two vehicles in which victims were seated. It has not skipped from our notice that all the deceased except Zia Ullah were boarded in one vehicle whereas Zia Ullah (deceased) along with Muhammad Yaqub (since dead) were in the second vehicle. Admittedly, the autopsy of Zia Ullah was not conducted and this omission gained more importance when seen in the context that no medical officer appeared before the trial Court to narrate even about the detail of his external examination or to depose that he was in receipt of firearm injuries. Unescapably, it can be held that prosecution failed to bring on record any legally acceptable evidence so as to assist us in holding beyond shred of any ambiguity that Zia Ullah died homicidal death and that too after the receipt of injuries inflicted through a weapon none other than the rifles. Similarly, Muhammad Yaqub could not appear before the trial Court and that too due to his murder committed by the complainant Nasir Javed (PW.13). Keeping in view the fact autopsy of Zia Ullah was not conducted and Yaqub did not appear before the trial Court, it can be held that the appellants who fired at the second vehicle do not deserve to be awarded death sentence. In the same stretch we have anxiously noticed that the prosecution failed to draw a distinguishing line between the perpetrators who fired at the vehicle in which four deceased were boarded and the vehicle in which Zia Ullah (deceased) along with Yaqub (since dead) were sitting. There is a consistent view of the Hon'ble Apex Courts that in cases wherein it is uncertain that whose fire shot proved fatal then alternate sentence of imprisonment of life to be awarded. Reliance can be placed in case reported as Muhammad Yaqoob vs. The State (2008 SCMR 1082), wherein the Hon'ble Supreme Court of Pakistan has held as under:
"For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of Section 6 of the Anti-Terrorism Act, 1997 the action must fall in sub-section (2) of Section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of sub-section (1) of Section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of sub-section (1) of Section 6 of that Act. It is clarified that any action constituting an offence, howsoever, grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of sub-section (1) of Section 6 of the said Act. It is further clarified that the actions specified in sub-section (2) of Section 6 of that Act do not qualify to be labeled or characterized as terrorism of such actions are taken in furtherance of personal enmity or private vendetta".
As a sequel of above discussion, we hereby decide the above titled appeals and Capital Sentence Reference as under:
(1) The conviction and sentence awarded to Mashooq Ali (appellant) is set-aside. He is acquitted of the charge; be released forthwith if not required in any criminal case.
(2) The conviction awarded to appellants namely Muhammad Riaz, Muhammad Maqsood alias Bao, Subah Sadiq alias Sobay Khan, Rasheed alias Sheedu, Muhammad Arshad alias Billy and Abdul Hameed alias Hameed under Section 302 (b), PPC, is maintained, however, their death sentence is converted into imprisonment for life on four counts each. So far as their conviction for the Qat-e-Amd of Zia Ullah (deceased) is concerned it is also set-aside.
(3) The conviction and sentence awarded to the appellants Muhammad Riaz, Muhammad Maqsood, Muhammad Arshad, Subeh Sadiq, Rasheed alias Shedu and Abdul Hameed under Section 324, 337-F(vi), 148, 427, PPC shall remain intact.
All the aforementioned sentences shall run concurrently with benefit of Section 382-B, Cr.P.C.
(4) The conviction and sentence awarded to the appellants Muhammad Riaz, Muhammad Maqsood, Muhammad Arshad, Subeh Sadiq, Rasheed alias Shedu and Abdul Hameed under Section 7(a) of ATA, 1997 is set-aside.
22. With this modification, Criminal Appeal No. 46468 of 2017 is partly allowed.
23. So far as Crl.Appeal No. 47443 of 2017 directed against the acquittal of Muhammad Aslam and Muhammad Ashraf (Respondents No. 1 to 2) is concerned it is also dismissed. We have already observed above that case from its very appearance gives reflection of wider net. Secondly, it is noticed from record (that Muhammad Aslam (Respondent No. 1) was a police employee and took the plea of alibi stating that at the eventful time he was present in Elite Force Center Kasur. The aforementioned innocence plea was probed from all angles by the JIT and it was proved that from 11.01.2014 till 17.01.2014 Muhammad Aslam remained present on his duty. The plea of alibi so raised by Muhammad Aslam was supported from the Roznamcha of Elite Force Kasur as well as from the Incharge Elite Force and other personals. Similarly, Muhammad Ashraf (Respondent No.2) also came forward with the defence plea from the very initial stage of the case that at the eventful time he was present in Qaud-e-Azam Law College along with other class fellows. This plea was also verified by the JIT after an in-depth scrutiny. The verification of the defence plea put forth by Muhammad Ashraf resulted in a declaration of innocence pronounced by the JIT. In these circumstances, when the prosecution is bereft of any corroboratory evidence about the involvement of
Respondents No. l and 2, there acquittal is not open to any legitimate legal exception. So far as Muhammad Anwar (Respondent No. 3) is concerned, it evinces the order sheet of this Court dated 06.06.2019 that he died and accordingly a death certificate was also tendered. In these circumstances the instant appeal is dismissed.
24. Resultantly, Capital Sentence Reference is answered in the NEGATIVE and death sentence awarded to Muhammad Riaz, Muhammad Maqsood alias Bao, Muhammad Arshad alias Billy, Mashooq Ali, Subah Sadiq alias Soby Khan, Rasheed alias Sheedu and Abdul Hameed, alias Hameed (convicts) is NOT CONFIRMED.
(A.A.K.) Appeal partly allowed
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