PLJ 2023 Cr.C. (Note) 224
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ.
AHMAD SHOAIB--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 648 & Capital Sentence Reference No. 5-T of 2019,
heard on 4.10.2021.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 40--It is a fact established on record that soon after registration of FIR appellant was apprehended from outside his house” and as noted above, he had pointed out place of occurrence as well as place where dead body of deceased was concealed, which was recovered on his pointation--In view of Article 40 of Qanoon-e-Shahadat Order, 1984, lead provided by appellant and his pointing out of places where deceased was done to death as well as recovery of dead body are relevant information about which nobody else except assailants had any information--Wherein Hon’ble Supreme Court of Pakistan has held that leading of accused to recovery of incriminating articles was a good piece of evidence of corroboration, which was admissible under Article 40 of Order ibid. [Para 13] A
1971 SCMR 412 & PLJ 2006 SC 931.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 364 & 201--Anti-Terrorism Act, (XXVII of 1997), Ss. 7(1)(a), 7(1)(2) & 7(2)--Murder reference--Qatl-e-amd--Conviction and sentence--Challenge to--Quantum of sentence--As already noted above, case of prosecution hinged on circumstantial evidence--In such cases Court while hearing an appeal against conviction recorded on circumstantial evidence has to see whether any link of evidence is missing or not and if all chain of events is established, extension of benefit of doubt would be against all cannon of justice, because, plight of family, who lost their near and dear, could not be described in simple words--There is also no cavil to proposition that conviction on a capital charge can be maintained if same is so interlinked, inter woven and interlaced that on one side it touches dead body of deceased and on other end it touches neck of accused--Having reappraised prosecution evidence, we found same worthy of credence and as such we are of considered view that same has rightly been believed by trial Court against appellant, therefore, conviction of appellant on charges falling under Pakistan Penal Code, 1860, is neither uncalled for nor require any interference by High Court--Adverting to quantum of sentence passed against appellant on capital charge, we would like to observe here that no doubt sentence of death on charge of murder is normal penalty, but in appropriate cases Courts have prerogative to award lesser punishment of imprisonment for life to him--Sentence of death should be converted into imprisonment for life provided u/S. 302(b), PPC, which is also a legal sentence and shall meet ends of justice.
[Para 15] B & C
M/s. Basharat Ullah Khan and Raja Muhammad Ali, Advocates for Appellant.
Mr. Naveed Ahmad Warraich, D.D.P.P. for State.
Mr. Muhammad Ameen Jan, Advocate for Complainant.
Date of hearing: 4.10.2021.
Judgment
Raja Shahid Mehmood Abbasi, J.--We, through this judgment, Intend to decide Criminal Appeal No. 648 of 2019 filed by Ahmad Shoaib appellant along with Capital Sentence Reference No. 5-T of 2019 sent by learned trial Court for confirmation or otherwise of the death sentence awarded to the appellant, as both these matters have originated from the judgment dated 06.07.2019, handed down by learned Judge Anti-Terrorism Court-II, Rawalpindi Division, Rawalpindi, in case FIR No. 34 dated 22.01.2016, under Sections 302, 201, 364, 34, PPC and Section 7 of Anti-Terrorism Act, 1997, Police Station Fateh Jang, District Attock, whereby the appellant was Convicted and sentenced as under:-
• Under Section 302, PPC to death
• Under Section 7(1)(a) of Anti-Terrorism Act, 1997 to death.
• Under Section 364, PPC to undergo 10-years R.I. with fine of Rs. 20,000/-or in default thereof to further undergo simple imprisonment for 2-months.
• Under Section 201, PPC to undergo 7-years R.I. with fine of Rs. 20,000/-or in default thereof to further undergo simple Imprisonment for 2-months.
• Under Section 7(1)(g) of Anti-Terrorism Act, 1997 to undergo 4-years R.I. with fine of Rs. 20,000/-or in default thereof to further undergo simple imprisonment for 2-months.
• Under Section 7(2) of Anti-Terrorism Act, 1997 the whole of his property stood forfeited in favour of State.
• Under Section 544-A, Cr.P.C. he was directed to pay Rs. 100,000/-as compensation to the legal heirs of Syed Muzammal Hussain Shah deceased, which shall be recovered as arrears of land revenue or in default thereof to further undergo simple imprisonment for 6-months.
• All the sentences of imprisonment were ordered to run concurrently, however, appellant was declined the benefit of Section 382-B, Cr.P.C.
2. The prosecution story unfolded in FIR (Ex.PQ/1), lodged on the basis of written application (Ex.PQ) of Mastan Shah complainant (PW14) is that he was resident of Bhaal Syedan and was having two sons, one of whom namely Muzammal Hussain Shah was student of 10th class in Government High School Fateh Jang, who, on 20.01.2016 at 07:30 a.m. left for Fateh Jang after taking his school bag, but did not return home and during his search, when the complainant reached Bhaal Syedan Stop, he was informed by Akmal Shah and Altaf Hussain Shah that on 20.01.2016 at about 08:30 am. they were standing at College Morr Stop and waiting for transport to go to their village, where they saw Muhammad Ali, Kashif and Ahmad Shoaib taking Muzammal Hussain Shah towards Degree College Fateh Jang on foot. Mastan Shah complainant further maintained in FIR (EX.PQ/1) that few days ago, a quarrel had taken place between his son Muzammal Hussain Shah and hafiz Muhammad Ali, etc, who were his class fellows, but the matter was patched up; due to this grudege, Muhammad Ali etc, three in number, abducted his son with the intention to commit his mureder, hence, the crime report.
3. After lodging FIR (Ex.PQ/1), Ahmad Nawaz S.I. (PW15) carried investigation of the case. He arrested Ahmad Shoaib (hereinafter referred to as the appellant), who made disclosure that he could lead to the recovery of dead body of Syed Muzammal Hussain Shah (hereinafter referred to as the deceased) and further pointed out the house of Kashif Mehmood co-accused, who was arrested from his house, where he (Kashif Mehmood co-accused) made disclosure that he could also lead to recovery of dead body of deceased. On the basis of their respective disclosures, the appellant as well as his co-accused Kashif Mehmood led the investigating officer and the witnesses to the place of occurrence and thereafter to the place of burial of dead body of the deceased, from where the dead body was recovered, upon which offences under Sections 302, 201 and 34, PPC were added. Thereafter, investigation was entrusted to Anjum Sohail S.I. (PW13) who got conducted postmortem examination on the dead body of deceased, recovered pickaxe (گینتی) on the pointing out of the appellant and after recording statements of Fayyaz Hussain Shah and Zamir Hussain Shah, added offence under Section 7 of Anti-Terrorism Act, 1997, where after file of the case was handed over to Akhtar Ali Inspector (PW10) for further investigation. On 26.01.2016, he (PW10) recovered knuckle duster on the pointing out of co-accused Kashif Mehmood and on the same day, he arrested co-accused Muhammad Ali, who, on 31.01.2016 got recovered blood stained chhuri. After taking other necessary steps and completing investigation, challan was submitted before the learned trial Court. It is pertinent to mention here that as Kashif Mehmood and Muhammad Ali co-accused were juvenile, their case was separated from that of the appellant for their separate trial under the Juvenile Justice System Ordinance.
4. On indictment, appellant pleaded not guilty and claimed trial. To substantiate its version at the trial, the prosecution examined fifteen witnesses, the detail of which finds an elaborate mention in the judgment passed by learned trial Court, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. After tendering in evidence the reports (Ex.PU and Ex.PV) of the Punjab Forensic Science Agency, the prosecution closed its evidence.
5. Thereafter, the appellant was examined under Section 342, Cr.P.C. whereby he professed his innocence and pleaded false implication in the case. However, he did not opt to depose within the scope of Section 340(2), Cr.P.C. and did not produce any witness in his defence. The contention adopted by him in reply to the question as to why this case against him and why the PWs had deposed against him, read as under:-
“It was a blind murder for unknown reasons. I have neither any motive nor connected with the murder of the deceased. From evidence, it is apparent on record that entire circumstantial evidence is doubtful. The dead body was lying open and was found from a deserted place. Exh.DA alone is sufficient to discard the entire prosecution story. It is proved on record that investigation was dishonest and malafide. I.O tampered the record also. Due to some ulterior motives the sectarian elements of the complainant side has tried to give it a sectarian colour whereas according to I.O. no sectarian element was found during the investigation. Father of Muhammad Ali is sarparasat-e-aala (سر پرست اعلیٰ) of the Madrissa Anwar-e-Sehaba Ahle Sunnat and more than 100 students are getting education at the said Madrissa, without any complaint of any sort. We accused are class fellows having no quarrel with deceased. We have been falsely involved in the case on false suspicion. The complainant had the civil litigations with other people in the village. Copy of the same are produced as Ex DD/1 and Ex.DE/1.”
6. On completion of trial, learned trial Court proceeded to convict and sentence the appellant as mentioned in Paragraph No. 1 of this judgment, hence, the criminal appeal and the capital sentence reference before us.
7. Learned counsel for the appellant submits that the appellant has been falsely involved in this case due to erratic guesswork and malicious intentions of complainant party; that the case against the appellant is nothing but a pack of lies, each word whereof converges on the innocence of appellant; that the prosecution did not produce any connecting evidence against the appellant during the course of the trial despite that he was pronounced guilty and handed down capital sentence of death; that there is no direct evidence against the appellant and the prosecution case is based on circumstantial evidence, which is not only the weakest of its types, but the chain of circumstances against the appellant is also broken; that the evidence of last seen and motive was fabricated only to create some circumstantial evidence against the appellant; that the medical evidence in this case has badly shattered the prosecution version regarding the missing of deceased on 20.01.2016; that neither dead body was recovered at the instance of appellant nor he got recovered anything else and all the recoveries shown to have been effected were planted which otherwise do not connect him with the commission of any offence; that the prosecution badly failed to bring home the guilt of the appellant beyond any reasonable shadow of doubt, hence, prays that the appeal may be accepted and the appellant being an Innocent person may be acquitted of the charge.
8. Conversely, learned Law Officer assisted by learned counsel for the complainant contends that the appellant is duly named in FIR with Specific allegation that he along with co-accused had abducted the deceased with the intention to commit his murder and during investigation, the appellant separately made a disclosure in furtherance of which be led to the place of occurrence and then got recovered the dead body of ill-fated young son of the complainant; that the appellant has failed to advance any plausible reason as to why the prosecution witnesses had deposed against him, because, there was no previous enmity, ill-will, grudge or malice of witnesses against him; that though there is no direct evidence against the appellant, yet the prosecution case is proved through circumstantial evidence, which successfully connected the appellant with the commission of alleged offence; that the recovery of pickaxe on the pointing out of appellant further strengthened the prosecution case against him; that the prosecution has established the guilt of appellant through tangible and cogent evidence beyond all shadows of doubt and the allied circurfistances made it a case of proven credibility against him, therefore, the impugned Judgment did not suffer from any frailty or legal defect; that the appellant does not deserve any leniency, because, he had acted in extremely brutal manner. Finally, prays that the appeal may be dismissed, death sentence of the appellant may be confirmed and capital sentence reference may be answered in affirmative.
9. We have given anxious consideration to the arguments advanced by learned counsel for the parties as well as learned Law Officer and have examined the record with their assistance.
10. Deep analysis of evidence on record reveals that the incident was reported by Mastan Shah Complainant (PW14), real father of deceased, with the allegation that on 20.01.2016 at 07:30 a.m. his son (deceased) left for the school situated at Fateh Jang after taking his school bag, but did not return home and during search, when he (PW14) reached Bhaal Syedan Stop, Akmal Shah (given up) and Altaf Hussain Shah (PW12) informed him that on 20.01.2016 at about 08:30 a.m. they had seen the appellant, co-accused Muhammad Ali and Kashif Mehmood while taking his son (deceased) towards Degree College Fateh Jang. Subsequent to registration of FIR (Ex.PQ/1), the appellant and Kashif Mehmood co-accused were arrested, who made separate disclosures with regard to pointing out of place of occurrence as well as recover of dead body of deceased, whereas third accused namely Muhammad Ali was apprehended thereafter. According to prosecution’s version, there is no eye-witness of tragie incident as nobody except the appellant, his co-accused and the deceased were present at the scene of tragedy. The prosecution has mainly relied on circumstantial evidence, as such, it is required to link each circumstance to the other in a manner which must form complete, continuous and uninterrupted chain of circumstances, firmly connecting the accused with the offence.
11. In the context of occurrence in the present case, the series of circumstances began from the missing of deceased as well as his having been lastly seen with the appellant and his co-accused and in this regard, statement of Mastan Shah (PW-14) being complainant and real father of deceased and that of the witness of last seen namely Altaf Hussain Shah (PW-12) are of great relevance and significance. We have observed that Mastan Shah complainant (PW-14), in his statement before the learned trial Court, reiterated whatever he had got incorporated in FIR (Ex.PQ/1). He reaffirmed that on 20.01.2016 at 07:30 am. His son left for the school, but did not return home and during search, Altaf Hussain Shah (PW-12) and Akmal Shah (given up) informed him that on the same morning i.e. 20.01.2016 at about 08:30 a.m. they had seen the appellant and his co-accused while taking his son (deceased) towards Degree College Fateh Jang. While conducting cross-examination on the Complainant (PW-14), the defence could not shatter his credibility and even during arguments learned counsel for the appellant has not brought his evidence under attack except raising a contention that the crime report was lodged by him with the delay of two days, which is otherwise not fatal in such like cases as being a father, the Complainant (PW-14) was more interested and concerned in tracking down whereabouts of his son than thinking of other options. Even otherwise, the defence could not controvert from record that soon after Complainant (PW-14) was informed about the factum of last seen, he reported the matter to police without consuming any further time.
12. First chain of circumstances in the shape of missing of deceased is linked with the chain of last seen and as noted above, the evidence of last seen came out from the mouth of Altaf Hussain Shah (PW-12). Whereas other witness of last seen namely Akmal Shah was given up being unnecessary. In his Court-statement, Altaf Hussain Shah (PW-12) categorically stated that on 20.01.2016, at about 08:30 a.m. he along with Akmal Shah (given up) was present at College Morr Stop for the purpose of going to their village, when in the meantime, they saw the appellant and his co-accused while taking the deceased towards rear side of Degree College Fateh Jang and after coming to know about the abduction of deceased, they informed the whole account to his father Mastan Shah complainant (PW-14). He (PW-12) further stated that on 22.01.2016, he was telephonically asked by complainant from police station Fateh Jang to reach College Morr Bus Stop along with Akmal Shah (given up), upon which they both reached there and joined investigation. He (PW-12) stated that on the same day i.e. 22.01.2016, the appellant was arrested from outside his house, who then and there made disclosure that he could lead to place of occurrence as well as recovery of dead body and in furtherance of said disclosure he not only pointed out the place of occurrence but also got recovered dead body of deceased, in school uniform along with school bag, after removing heap of soil. It is noteworthy that due to short distance between places of last seen, commission of crime and burial of dead body of deceased and further taking into consideration medical history of deceased, especially the time between factum of last seen, death and postmortem examination, we are of the view that evidence of last seen certainly fits into the criteria of proximity of time and distance.
13. It is a fact established on record that soon after registration of FIR (Ex.PQ/1), appellant was apprehended from outside his house and as noted above, he had pointed out the place of occurrence as well as place where dead body of deceased was concealed, which was recovered on his pointation. In view of Article 40 of Qanoon-e-Shahadat Order, 1984, the lead provided by appellant and his pointing out of places where deceased was done to death as well as recovery of dead body are relevant information about which nobody else except the assailants had any information. In this context, reliance is placed on the case of “Hakim Ali v. The State” (1971 SCMR 412) wherein Hon’ble Supreme Court of Pakistan has held that leading of accused to recovery of incriminating articles was a good piece of evidence of corroboration, which was admissible under Article 40 of the Order ibid. Further guidance has also been sought from the case of “Sher Zaman v. State and others” (PLJ 2006 SC 931), wherein the above view has been fortified by the apex Supreme Court.
14. Besides medical evidence in the shape of statement of Dr. Abid Ali Khan (PW-6) and postmortem report (Ex.PD) is in complete harmony with the evidence of last seen and other circumstantial evidence produced by the prosecution and no conflict could be brought on record by the defence. Likewise, the tool used for concealing dead body of deceased was also recovered at the instance of the appellant vide memo. (Ex.PB), which fact is duly proved through the statements of Shabbir Ahmad ASI (PW-2) and Anjum Sohail S.I. (PW-13). Though a specific motive was mentioned in FIR (EX.PQ/1) that the deceased had been murdered on the backdrop of some previous quarrel between him and the accused being class fellows, but subsequently prosecution made exaggeration through the statement of Fayyaz Hussain Shah (PW-11), who introduced another story and gave impression that the incident was outcome of sectarian conflict. According to Fayyaz Hussain Shah (PW-11), on 18.01.2016 the appellant and his co-accused uttered derogatory remarks regarding Shia sect of Muslims while pointing towards the deceased, but surprisingly Fayyaz Hussain Shah (PW-11) and his companion Zamir Hussain Shah (given up) did not take any step to admonish the accused then and there and they did not even make any complaint to the parents of accused or police. There is absolutely no justification that why Fayyaz Hussain Shah (PW-11) kept quiet and did not join investigation immediately after registration of FIR on 22.01.2016 and ultimately his statement was recorded on 23.01.2016. We are, therefore, of the view that there might be a quarrel between the accused and the deceased being class fellows but the reason advanced by Fayyaz Hussain Shah (PW-11) behind such quarrel that too at belated stage would not appeal to human prudence rather it seems that the subsequent purpose of quarrel was introduced only to give a heinous touch to the incident and bring the case within the parameters of Anti-Terrorism Act, 1997. In such state of affairs, we are inclined to hold that the incident resulting into death of son of complainant had taken place on account of personal grudge between class-fellows and was not the consequence of any sectarian hatred, therefore, we feel that the provisions of Anti-Terrorism Act, 1997 are not attracted in this case.
15. As already noted above, case of the prosecution hinged on circumstantial evidence. In such cases the Court while hearing an appeal against conviction recorded on circumstantial evidence has to see whether any link of evidence is missing or not and if all the chain of events is established, the extension of benefit of doubt would be against all the cannon of justice, because, the plight of family, who lost their near and dear, could not be described in simple words. There is also no cavil to proposition that conviction on a capital charge can be maintained if the same is so interlinked, inter woven and interlaced that on one side it touches the dead body of deceased and on the other end it touches the neck of accused. Having reappraised the prosecution evidence, we found the same worthy of credence and as such we are of the considered view that the same has rightly been believed by learned trial Court against the appellant, therefore, conviction of the appellant on the charges falling under Pakistan Penal Code, 1860, is neither uncalled for nor require any interference by this Court. Adverting to quantum of sentence passed against the appellant on the capital charge, we would like to observe here that no doubt the sentence of death on the charge of murder is normal penalty, but in appropriate cases the Courts have the prerogative to award lesser punishment of imprisonment for life to him. We, while keeping in view the attending circumstances of the case, are of the view that sentence of death should be converted into imprisonment for life provided under Section 302(b), PPC, which is also a legal sentence and shall meet the ends of justice. Reliance is placed on the case of “Akhtar v. The State” (2020 SCMR 2020).
16. For the foregoing reasons, we uphold and maintain conviction awarded to appellant by learned trial Court under Section 302(b), PPC, but alter his sentence from death to imprisonment for life with the observation that the amount of compensation imposed upon him, mode of its recovery and imprisonment in default thereof shall remain intact. Likewise, conviction and sentences awarded to the appellant under Sections 364 and 201, PPC are also maintained and upheld, but his conviction and sentences under Sections 7(1)(a), 7(1)(g) and 7(2) of Anti-Terrorism Act, 1997 are set aside, with the observation that all sentences awarded to the appellant shall run concurrently and benefit of Section 382-B, Cr.P.C. shall also be awarded to him.
17. Consequently, with the above modification in the conviction and sentences of appellant, Criminal Appeal No. 648-T of 2019 is hereby dismissed. Capital Sentence Reference No. 5-T of 2019 is answered in negative and death sentence is not confirmed.
(A.A.K.) Appeal dismissed
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