PLJ 2023 Cr.C. (Note) 23
[Lahore High Court, Lahore]
present: Ch. Abdul Aziz and Muhammad Amjad Rafiq, JJ.
ZEESHAN HAIDER @ SHANI etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 819, CSR No. 14-T of 2012 & Suo Moto Crl. Rev. No. 76425 of 2019, heard on 7.12.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 148, 149 & 324--Anti-Terrorism Act, (XXVII of 1997),
S. 7(a)(c)--Qatl-e-amd--Conviction and sentence--Challenge to--Applicability of S. 7 of ATA--Prosecution has not been successful in proving motive touching sectarian hatred; except some bald assertions by witnesses--Though prosecution has put (PW-18) in support of abetment evidence yet he could not justify through his statement fact of such inaction--Investigating officer also failed to bring on record such lead that could catch accused/appellant being motived due to such cause--Probably that was reason that trial Court has also disbelieved motive of sectarian hatred; it could not even be brought on any immediate or remote religious cause that could turn to be religious mens rea--Appeal is partially allowed, therefore, set aside conviction and sentence of appellant awarded under Sections 7(a) & 7(c) of Anti-Terrorism Act, 1997; however, maintains conviction of accused/appellants recorded against all other charges, yet sentence of death necessarily been reconsidered in light of facts mentioned above--Motive has been disbelieved; recovery being in consequential coupled with role of indiscriminate firing by all accused--Alternate sentence of imprisonment for life would be sufficient in interest of justice--Court accordingly alter death sentences of all appellants to imprisonment for life u/S. 302 (b) read with Section 149, PPC on five counts--Conviction and sentence on rest of charges are maintained accordingly--All sentences shall run concurrently, benefit of Section 382 B, Cr.P.C. would be available to appellant--Appeal partially allowed.
[Para 14] A, B & C
PLD 2020 SC 61, 2009 SCMR 1273 and 2012 SCMR 74.
Mr. Muhammad Akram Qureshi, Advocate for Appellants No. 1 & 2.
Mr. Nasir Mahmood Tiwana, Advocate for Appellant No. 3.
Rai Akhtar Hussain Khara, Deputy Prosecutor General for State.
M/s. Arif Mehmood Rana, Adil Riaz and Baran Khan Sherwani, Advocates for Complainant.
Date of hearing 7.12.2021
Judgment
Muhammad Amjad Rafiq, J.--Through the afore-titled criminal appeal under Section 25 of the Anti-Terrorism Act, 1997, Zeeshan Haider @ Shani, Tanveer Hussain @ Tanna Shah and Gul Naqi Shah, appellants have challenged the vires of judgment dated 20.04.2012 passed by the learned Special Judge, Anti-Terrorism Court, Sargodha in case FIR No. 125 dated 28.08.2011, registered under Sections 302/324/109/148/149, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997 at Police Station City Darya Khan, District Sargodha, whereby they were convicted and sentenced in following terms:-
Under Section 148, PPC
Rigorous imprisonment for three years each with fine of
Rs. 20,000/- each, in default whereof to further undergo SI for three months each.
Under Section 302(b), PPC read with Section 149, PPC
Death on five counts by way of Ta’zir for committing Qatl-i-Amd of Muhammad Saleem, Khursheed Alam, Munawar, Abdul Waheed, Rehmatullah and to pay the compensation of Rs. 200,000/- each to the legal heirs of each deceased under Section 544-A, Cr.P.C.
Under Section 324, PPC read with Section 149, PPC
Rigorous Imprisonment for ten years on five counts with fine of Rs. 50,000/-, each, in default whereof to further undergo SI for six months each.
Under Section 7(a) of the Anti-Terrorism Act, 1997 read with Section 149, PPC
Death to each with fine of Rs. 2,00,000/- each in default whereof to further undergo SI for six months each.
Under Section 7(c) of the Anti-Terrorism Act, 1997 read with Section 149, PPC
Rigorous Imprisonment for ten years each with fine of Rs. 50,000/-, in default whereof to further undergo SI for six months each.
2. Capital Sentence Reference No. 14-T of 2012 for confirmation or otherwise of death sentence of the appellants as well as Suo Moto Criminal Revision No. 76425 of 2019 shall also be decided through this common judgment.
3. Barbarity flows from the muzzles triggered by Kalashnikov led heartless assailants who played havoc over the poor chaps busy in gaming at Billiards table kept commercially in a shop at Ansari Shopping Centre being run by Aamir alias Malangi, opposite to it complainant along with witnesses with heavy sobbing viewed the desperate acts from a nearby shop; cognized the masculine as Tanvir alias Tana, Gul Naqi Shah, Imran Abass and Zeeshan alias Shani, in their fresh ages armed with Kalashnikov mercilessly exhausted their magazines with specific injury to Khurshed Alam on head, Rana Manawar on left Flank, Abdul Waheed on head and Muhammad Saleem on chest respectively; deciphered satiation they kept on firing to cool down their thrust for blood for cause in blind, causing more severe injuries on the targeted victims as forecited by leaving six more as injured at the site; they were Rehmat Ullah, Muhammad Ijaz, Muhammad Waheed, Aamir Sohail, Muhammad Iqbal and Ameer Moavia: those who died at the spot were Khurshed Alam and Rana Manawar; rest of the injured resisted their fate yet Muhammad Saleem, Abdul Waheed and Rehmat Ullah also left for world of bliss; survivors’ list serials out Aamir Sohail, Muhammad Ijaz, Muhammad Waheed and Ameer Moavia to be appeared in trial as PW-20, PW-21, PW-22 & PW-23 along with complainant Muhammad Aslam as PW-19, though not injured yet a bereaved father of Muhammad Saleem deceased. One of the injured Iqbal was also put before the learned trial Court, due to injury he was unable to speak, therefore, was abandoned.
4. Investigation at the site was carried out by Sultan Ahmad (PW-26) who reached to the THQ Hospital Darya Khan where he prepared injuries statements of Khursheed Alam and Rana Munawar and prepared inquest reports and drafted application for post-mortem examination of above named two deceased. Thereafter, he reached to DHQ Hospital Bhakkar, where he prepared injury statement and inquest report of Saleem deceased; drafted application for post-mortem examination. He also prepared injury statements of Iqbal, Waheed, Ameer Moavia, Aamir Sohail, Muhammad Ijaz, Rehmat Ullah and Abdul Waheed and recorded their statements under Section 161, Cr.P.C. Thereafter, he reached the venue of crime where he recorded the statements of PWs, inspected the spot, prepared rough site-plan, secured bloodstained earth from the places of murder of Khursheed Alam, Rehmat Ullah, Rana Munawar, Muhammad Saleem and Abdul Waheed and same were taken into possession through recovery memos. He secured 37 crime empties of Kalashnikov from different points at the spot and secured them into sealed parcel. He secured three electric bulbs installed in the shop of Aamir Sohail, 10 pair of shoes from the place of occurrence. After the post-mortem examination, he received last worn clothes of the deceased persons. On 29.08.2011 he prepared inquest reports of Abdul Waheed and Rehmat Ullah; dead bodies were handed-over to Nazar Hussain Constable along with relevant papers. After post-mortem examination, last worn clothes of deceased were taken into possession. On 04.09.2011 on his direction draftsman visited the crime scene, took the rough notes on the pointing out of PWs and on 06.09.2011 draftsman produced before him scaled site-plan in duplicate. On 14.09.2011 he arrested five accused persons namely Tanveer, Gul Naqi Shah, Zeeshan Haider, Imran Abbas and Riaz Hussain Shah and obtained their physical remand. Thereafter, he was transferred. On 17.09.2011 Abdul Rehman Inspector/S.H.O. (PW-27) took over the investigation along with joint investigation team, interrogated the accused persons. On 13.10.2011 Tanveer Hussain accused lead to the recovery of Kalashnikov (P-22) along with twenty-five live bullets (P-23/1-25) from his Baithak which was sealed into parcel. On the same date, Zeeshan accused also lead to the recovery of Kalashnikov (P-24) with magazine containing twenty live bullets (P-25/1-20) which were also secured through recovery memo. He also obtained warrants of arrest and proclamations against absconding accused namely Muhammad Touqeer, Muhammad Sibtain and Qaisar Abbas. After receiving report of Chemical Examiner, Lahore, reports of Serologist and Forensic Science Agency, he put the challan into the Court wherein accused persons were charge sheeted to which they pleaded not guilty and prosecution produced as many as twenty-seven PWs and mainly relied upon statements of Muhammad Aslam, being complainant (PW-19), Aamir Sohail injured (PW-20), Muhammad Ijaz injured (PW-21), Muhammad Waheed injured (PW-22), Ameer Moavia injured (PW-23) and also put witness of waj takar Akhtar Ali (PW-24), in addition, Investigating Officers, Sultan Ahmad Sub-Inspector (PW-26) and Abdul Rehman Inspector/S.H.O. (PW-27) along with doctors as PW-2, PW-3, PW-10 and PW-11. After close of prosecution evidence accused were examined under Section 342, Cr.P.C. wherein Zeeshan Haider alias Shani, appellant while responding to a question “Why this case is against you and why the PWs have deposed against you” stated as under:
“On 28.08.2011 from evening till Isha prayer, I remained busy in funeral prayer of one Mehdi Shah and on return from graveyard this occurrence had already been taken place by unknown culprits. F.I.R. was registered on the next day at the instance of sectarian agitators such a Maulana Manzoor Akasha and others. I was arrested by police from my house and 1 was also interrogated by Joint Investigation Team for many days during police remand. My contention remained the same that I was innocent and was not present a the spot, which was testified by the persons who participated in funeral prayer of Mehdi Shah. The murder of Mehdi Shah was not a sectarian murder because one Qalandar Shah of Shia sect related to Tanveer Shah has been challaned. None of the deceased or injured person is a sectarian extremist and the witnesses were misled by Manzoor Akasha and others. During investigation Mohammad Tauqeer, Qaisar Abbas and Mohammad Sibtain have been found guilty for this occurrence and they have been declared proclaimed offenders. The investigation Team failed to arrest them and I have been made scapegoat.”
Rest of the appellants Tanveer Hussain and Gul Naqi Shah adopted the reply of Zeeshan Haider alias Shani, appellant. Whereas accused Syed Riaz Hussain Shah and Imran Abbas took different stances. After conclusion of trial, the learned trial Court acquitted Syed Riaz Hussain Shah and Imran Abbas, whereas convicted the appellants as forecited.
5. Learned counsel for the appellants submitted that motive as alleged by the prosecution has not been proved; it was night occurrence and light at the place of occurrence was not available; witnesses from the site of their presence cannot view the role attributed to the appellants; injured PWs have not given specific injuries to any of the appellant and in fact some proclaimed offenders were present at the billiard table and gambling was on, a dispute arose among the people present, resulted into firing by those proclaimed offenders; attempt of prosecution to colour the occurrence with sectarian touch has not been successful, therefore, Section 7 ATA is not attracted in this case.
6. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant have vehemently opposed the instant appeal and though conceded that prosecution has failed to prove the motive and abetment story, therefore, application of Section 7 ATA is not attracted, however, stood firm with the stance of prosecution that the appellants were identified at the place of occurrence as sufficient light was available; it was a shopping center wherein the people were present in their shops; PWs were also seated in front of the place of occurrence in a vacant shop, whereas six injured having injuries on their bodies carry the stamp of truth to their testimony which cannot be ignored; narration of specific injury is not requirement for fixing the liability upon the appellants who otherwise committed a brutal act and does not deserve leniency even in the terms their of sentence.
7. Arguments heard. Record perused.
8. Occurrence at the site has not been disputed by the defence, the facts in issue in this case were the source of light, identification of roles of accused persons, presence of complainant near the crime scene and false implication of accused as being not present at the place of occurrence. To start with presence of complainant PW-19 Muhammad Aslam which was disputed by the defence that he was shown present in a vacant shop in front of shop of occurrence, which he denied during cross-examination and claimed his presence in a ‘Pakoraa shop’ away from the place of occurrence. Complainant along with almost all the injured PWs were unanimous about his presence at ‘Pakoraa shop’ which according to site-plan (Exh. PA) was not too far but two shops away from the place of occurrence. Complainant responded his presence during cross-examination as under:
“I was not sitting in vacant shop at the time of occurrence but I was present in the shop of “Pakoraas “. Place of occurrence was towards west of place where I was sitting “.
Similar was the stance of Aamir Sohail Injured (PW 20) as under:
“I had stated before the police that complainant of this case was also present in front shop of Pakoraas”……….. It is incorrect that complainant Aslam was present at the time of occurrence in a vacant shop. Volunteer that he was sitting in the shop of Pakoraas.
Muhammad Waheed (PW-22) had also stated this fact during cross-examination in following terms:
“I had not stated before police that Aslam was present in a shop, in front of billiard shop in any contest”.
Statement of Ameer Moavia was not dissimilar to the above which was as under:
“It is incorrect to suggest that we had shown presence of Muhammad Aslam complainant in a vacant shop. Volunteered that he was sitting in a shop of Pakoraas”
Though stance of investigating officer was at variance with the PWs, tharefore, preference would be given to the statements of PWs present at the crime scene and it cannot be considered a major contradiction, so as to create a dent in prosecution case. Contradiction is learnt as fact that totally negates the prosecution story, which is not the case.
9. 2nd fact in issue, the source of light was seriously challenged by the defence at it was night occurrence and reportedly electricity were off in the area. Place of occurrence was a shop situated at Ansari Shopping center which though could not be expected to remain in dark during business hours despite the fact Investigating officer has shown three points in the site-plan where the bulbs were on when the people were playing billiards, though it is not expected that gaming was on in the dark yet complainant in his examination in chief stated that bulbs were on and during cross-examination replied specifically to question of source of light in following words:
“It is correct that electricity light was off at the place of occurrence. volunteer that the light was on with the help of generator in the billiard shop.”
Aamir Sohail (PW 20) mentioned in his examination in chief that he along with Ameer Moavia, Ijaz, Iqbal, Saleem and Munawar were playing billiard in the shop of Ansari Shopping Center and lights were on. During cross-examination, he replied as under;
“I did not get recorded that lights were on at the time of occurrence. volunteered lights were on with the help of generators. I have not got recorded before the police that lights were on with the help of generator”.
Reply of this witness was spontaneous and did not have a tinge of any dishonest improvement, what was asked replied with fact, no exaggeration; it can safely be helpful to light the occurrence. Defence has seriously raised objection over the stance of illumination of place of occurrence with the help of generator when according to evidence, such fact is not mentioned in site-plan but defence has deliberately skipped asking question about availability of generator at the place of occurrence from any of the investigating officer. Though scaled site-plan does mentioned availability of light at the place of occurrence but defence has also not put any question relating to light to Draftsman Muhammad Shafique PW-1. The attempt to dislodge the prosecution case on the touchstone of absence of light fails in the circumstances.
10. Defence when failed to dislodge the presence of witnesses, contended that the presence of witnesses at an acclaimed site does not help them to view the occurrence clearly. Complainant response to different question on this aspect was as under;
“It is incorrect that there was shutter on the shop where billiard was being played at the time of occurrence. The accused have their faces towards the billiard shop when they were making firing and their backs were towards us. Volunteer the half faces and shoulders of the accused were visible to us”
When parties were known to each other, it cannot be expected that a man cannot be identified in such situation and position. By putting such questions defence in fact has conceded the presence of complainant at the site. To understand the position of Injured witnesses and expectation from them to state about whose fire actually hit them though they have specifically indicated first throw of bullets with seat of injuries to Khursheed Alam,
when indiscriminate firing was made by accused and absconding co accused……….. once it was found that accused persons has common intention to commit crime, it was immaterial as to what part was played by whom, as vicarious liability was that who had stood together, must have fallen together.
The above parts of evidence show that prosecution case is so strong on the ocular side that it remotely accepts the hypothesis of innocence of accused/appellant.
11. Before commenting about presence of accused/appellants at the site, it would be appropriate to see the aftermath of such occurrence; injured PWs were immediately shifted to the hospital who were medically examined at 9:55 p.m. and post-mortem were also conducted around this time which could be calculated as done after one hour of the occurrence showing the reporting of crime to police so prompt that it rules out concoction or deliberation. Deceased and injured were attended by the respective Doctors with the observation that injuries on their person were caused with fire-arm weapon and the sizes of injuries highlighted correspond to the weapon carried by the offenders. In most of the injuries doctors observed blackening, which show that fires were made from a very close range and it is also reflected from the position of assailants and presence of victims at the site through two site-plans put by the prosecution as explanatory evidence. Defence though could not controvert such positions yet in their attempt to create dent asked question to the witnesses that the inter se distance between injured and deceased was noticeable because description of injuries are different, which though was not the case; injured too received serious injuries carrying blackening around their wounds but they themselves trapped in those question. One of the responses of Complainant during cross-examination was as under:
“Deceased and injured were at a distance of about 1 feet (sic) or 2 feet from each other at the relevant time”.
Injuries on the persons of all injured were not simple in nature; two of the injured Aamir Sohail and Ijaz had injury declared as Jurah Jaifah and others injured have fractures at the site of injuries. Medical evidence is perfectly in line, with ocular account; therefore, would be read against the appellants.
12. From the place of occurrence, investigating agency collected 37 crime empties of Kalashnikov which were sent to PFSA and it was proved through the statement Zafar Iqbal 151-MHC (PW -5) and Bashir Khan (PW-6). Weapon of offence Kalashnikov (P-22 & P-24) were recovered on the lead of Tanveer and Zeeshan accused/appellant respectively and both witnesses of custody and dispatch cited above confirmed the fact of dispatching it to PFSA; yet report of PFSA (Exh. PMMM) shows that it only commented upon the functionality test of such weapon. Perusal of such report further reavels that examination requested by District Police Officer through Tariq Ahmad Inspector was only to the extent of Functionality test which is beyond comprehension when crime empties were also sent prior to such recovered weapon. Police has destroyed the corroborative evidence for prosecution in this case. This recovery in the circumstances is inconsequential.
13. The plea of accused that they have falsely been involved in this case does not spur out from the record; they were under no compulsion to restrict them to raise certain questions to the witnesses that occurrence in fact have committed by some proclaimed offenders or the offenders who have been declared proclaimed accused in the case, they were at liberty to adduce evidence that they were not present at the place of occurrence, certain questions to investigating officer that accused were arrested from their house does not make sense when the prosecution was claiming the episode of crime as for intended sectarian touch. No plausible evidence from defence side came on the record to dislodge the prosecution case or to create a room through intermittent dents so to make the story spongy through which prosecution stance could squeezed and facts drain away as water to empty the whole prosecution case. Defence has no contrast structure to engulf the trustworthy prosecution evidence. Prosecution has proved the case to the hilt on the touchstone of beyond reasonable doubt, a standard of proof required for prosecution.
14. We have noticed that prosecution has not been successful in proving the motive touching the sectarian hatred; except some bald assertions by the witnesses. Though prosecution has put Abid (PW-18) in support of abetment evidence yet he could not justify through his statement the fact of such inaction. Investigating officer also failed to bring on record such lead that could catch the accused/appellant being motived due to such cause. Probably that was the reason that learned trial Court has also disbelieved the motive of sectarian hatred; it could not even be brought on any immediate or remote religious cause that could turn to be the religious mens rea. Therefore, applicability of Section 7 of ATA is uncalled for in the light of celebrated Judgment of Honourable Supreme Court in case reported as “Ghulam Hussain v. The State” (PLD 2020 SC 61) the related excerpt is as under:
“Now creating fear or insecurity in the society is not by itself terrorism unless the motive itself is to create fear or insecurity in the society and not when fear or insecurity is just a byproduct, a fallout or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an ‘ism’ is a totally different concept which denotes commission of a crime with the design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which are essentially political, ideological or religious. This approach also appears to be in harmony with the emerging international perspective and perception about terrorism. The international perception is also becoming clearer on the point that a violent activity against civilians that has no political, ideological or religious aims is just an ‘act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. This metamorphosis in the anti-terrorism law in our country has brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective.
16. 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 if such actions are taken in furtherance of personal enmity or private vendetta”.
Keeping in view the above command, consequently, above appeal is partially allowed, we, therefore, set aside the conviction and sentence of the appellant awarded under Sections 7(a) & 7(c) of Anti-Terrorism Act, 1997; however, maintains the conviction of accused/appellants recorded against all other charges, yet sentence of death necessarily been reconsidered in the light of facts mentioned above. In this case motive has been disbelieved; recovery being in consequential coupled with role of indiscriminate firing by all the accused, we are guided through the judgments of Honourable Supreme Court reported as “Muhammad Yaqoob v. The State” (2009 SCMR 1273); “Mst. Sabeeha v. The State” (2012 SCMR 74) wherein it has been commanded that in above situation alternate sentence of imprisonment for life would be sufficient in the interest of justice. We accordingly alter the death sentences of all the appellants to imprisonment for life u/S. 302 (b) read with Section 149, PPC on five counts. Conviction and sentence on rest of the charges are maintained accordingly. All the sentences shall run concurrently, benefit of Section 382 B Cr. P.C would be available to the appellant.
15. For the reasons recorded hereinabove, Crl. Revision No. 76425 of 2019 is also disposed of.
Death sentence of the appellants is not confirmed; Capital Sentence. Reference is answered in negative.
(A.A.K.) Appeal partially allowed
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