MUSHTAQ and 3 others vs THE STATE

' JAVED IQBAL, J.---This appeal with leave of the Court has been directed against the judgment dated 2-7-2002 passed by learned Division Bench of Lahore High Court, Lahore whereby the appeal preferred on behalf of appellants has been dismissed and judgment dated 31-7-2002 passed by learned Judge Anti-Terrorism Court-II, Gujranwala whereby the appellants were convicted under section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to death and fine of Rs.1,00,000 each and in case of default to undergo S.I. For 2 years each was kept intact. They were also convicted under section 7(c) of the Anti-Terrorism Act, 1997 and sentenced to R.I. For ten years each and fine of Rs.50,000 each and in case of its non-realization to undergo S.I. For one year each. It is, however, significant to note that death sentence awarded to Mushtaq (Appellant) was maintained and that of Shahid, Muhammad Khan and Sodagar (appellants) was converted to that of life imprisonment vide judgment impugned.

2. Leave to appeal was granted by means of order dated 27-9-2005 which is reproduced hereinbelow for ready reference:-- "Through this jail petition, petitioners seek leave to appeal against judgment dated 2-7-2003 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No.1362 of 2002 filed by them was dismissed and conviction and sentence of death awarded by the trial Court to petitioner Mushtaq was maintained and that of petitioners Shahid, Sodagar and Muhammad Khan was altered to imprisonment for life.

2. No one has entered appearance on behalf of petitioners.

3. We have gone through the impugned judgment and perused the record in minute particulars.

We are of the view that learned High Court while modifying the sentence of the above mentioned petitioners has observed that all due care and caution lest any injustice takes place because of any human error on the part of the P.Ws.

4. In view of this we are of the opinion that matter requires deeper appreciation of evidence as such leave to appeal is granted for safe administration of criminal justice."

3. Heard Mr. Muhammad Ikram Chaudhary, learned Senior Advocate Supreme Court on behalf of appellants who mainly contended that sentence of death could not have been awarded on the basis of vague and sketchy evidence which being not confidence-inspiring should have been discarded by the learned Division Bench of Lahore High Court, Lahore which aspect of the matter went unnoticed causing serious prejudice against the appellants. It is also contended that various eyewitnesses present at the spot have not been produced by the prosecution of suppress the, reality. It is next contended that no mention whatsoever has been made about one Abdullah to whom a specific role has been assigned in the F.I.R. It is also contended that in any case the sentence of death cannot be maintained as there is no distinctive feature between the case of Shahid, Muhammad Khan and Sodagar and that of Mushtaq. The learned Advocate Supreme Court on behalf of appellants has placed much emphasis on the principle of consistency which according to him has been violated by the learned Division Bench of Lahore High Court, Lahore without any rhyme and reasons. It is urged with vehemence that no cogent reasoning whatsoever has been given for maintaining the sentence of death awarded to Mushtaq (appellant) when his case was similar to that of Shahid, Muhammad Khan and Sodagar.

4. Ch. Munir Sadiq, learned Deputy Prosecutor General entered appearance for State and contended that the evidence which has come on record has rightly been appreciated by the learned trial Court determination whereof has been upheld by the learned Division Bench of Lahore High Court, Lahore and accordingly no interference is warranted. It is also contended that Mushtaq (appellant) was injured and therefore, his presence at the place of occurrence has been proved beyond any shadow of doubt. It is next contended that the statements of Muhammad Akbar (P.W.7) and Sain Khan (P.W.8) have rightly been believed being consistent, free from any exaggeration and confidence-inspiring. The learned Deputy Prosecutor General has also invited our attention to the factum of recovery and positive report of Forensic Science Laboratory.

5. We have carefully examined the respective contentions in the light of evidence which has come on record and perused the judgment of learned trial court as well as the judgment impugned, After having gone through the entire evidence we are of the considered view that the prosecution has proved the accusation against the appellant by producing worthy of credence evidence. In this regard the statements of Muhammad Akbar (P.W.7) and Sain Khan (P.W.8) have rightly been considered and believed by the learned trail Court, determination whereof has been upheld by the learned Division Bench of Lahore High Court, Lahore. We have also examined the statements of Muhammad Akbar (P.W.7) and SaM Khan (P:W.8) in depth. A careful perusal of the statement of Muhammad Akbar (P.W.7) would reveal that he had identified Shahid, Muhammad Khan, Sodagar and Mushtaq (appellant) who was armed with Kalashnikov and rest of the accused persons were armed with dagger and rifles. It is to be noted that Muhammad Akbar (P.W.7) is an eye-witness and relevant portion of his statement is reproduced hereinbelow for ready reference:-- "About five months back, I, SaM Khan P.W., Zumurred Hussain deceased and Jamil Hussain deceased were lying asleep in the house of P.W. Sain Khan. At about 2-30 a.m. On the night between 5/6-11-2001, six persons entered in the house of Sain Khan P.W. Out of which five were in Police uniforms and sixth was in plain clothes. Out of these four are present in the Court. Their names are Sudagar, Shahid Muhammad Khan and Mushtaq Ahmed. Mushtaq accused was armed with Klashnikov while the remaining were armed with rifles and dagger. The accused stated that a girl has been abducted from Lahore and she is present in this house, they have to search her from this house. The accused also demanded a bag from Jamil deceased who replied in negative. The accused then started firing. Jamil received fire-arm injures and succumbed to the injuries.

Zumurred and Sain Khan also received injuries. Zumurrad later on died. The accused then searched the house and took away cash of Rs,5,00,000 three thousand U.S. Dollar, Golden ornaments 30 Tolas, Cheque Book, Passport etc; and then ran away. During the occurrence Mushtaq accused present in the Court also received injuries. The occurrence was also witnessed by Muhammad Afsar and Maqbool in addition to us

6. A careful scrutiny of his statement as reproduced hereinabove would reveal that role of firing has been attributed to all the above named accused persons. Muhammad Akbar (P.W.7) has stated in a categoric manner while answering one of the questions during cross-examination that "the occurrence lasted about half an hour. The accused also fired till the time of their departure." The inescapable conclusion would be that firing was made by all the accused persons.

7. An in depth analysis of the statement of Sam Khan (P.W.8) would reveal that the role of firing was assigned to all the accused persons as it has been stated in an unequivocal manner that "they were armed with different fire-arm weapons. The accused first demanded a girl and then they demanded a bag. On the refusal of my son the accused started firing. Jamil and Zumurad both the deceased and myself received injuries of firing".

8. We have also perused with care and caution the statement of Maqbool Hussain (P.W.14) and operative portion of his statement is reproduced herein below:- "About 5-1/2 months ago it was about 2/2-1/2 A.M. When I was present in my house, on hearing the noise I reached the house of SaM Khan. I saw five persons in Police uniforms and one was without uniform. All of them were armed with different arms. In my presence the accused fired which hit SaM Khan, Zumurad and Jamil. Jamil expired on the spot. All the six assailants ran towards the Bazar. The accused also fired at me but I escaped unhurt."

9. A bare perusal of the relevant portion of the statement of Maqbool Hussian (P.W.14) as reproduced hereinabove would reveal that firing was made by all the accused persons who were armed with different kinds of arms.

10. A critical analysis of the prosecution evidence and the statement of eye-witnesses would reveal that no specific role of firing has been assigned exclusively to Mushtaq (appellant) but on the contrary the eye account is demonstrative of the fact that firing was made by all the accused persons. We have no hesitation in our mind to hold that Shahid, Sodagar, Muhammad Khan and Mushtaq (appellants) had participated in the occurrence which resulted in the death of Jamil. In the judgment impugned no reasoning whatsoever has been given that as to why the case of Mushtaq has been distinguished from the rest of the accused persons in the absence of any distinctive feature. The learned Deputy Prosecutor General was asked pointedly that why the sentence of death should be kept in intact when on the basis of similar evidence which has been converted to that of life imprisonment in case of Sodagar, Shahid and Muhamamd Khan but no answer could be given except the positive report of Forensic Science Laboratory which cannot be taken into consideration for the simple reason that crime weapon and empties were sent together to the Forensic Science Laboratory and therefore, the positive report of Forensic Science Laboratory has rightly been rejected by the learned High Court with the following observations:-- "30. These recoveries do not provide much strength to the case of the prosecution because the crime empties recovered from the spot were not dispatched on the day of recovery and were sent with the weapons recovered from the spot on the same day."

11. As mentioned hereinabove the prosecution has substantiated the accusation by producing worthy of credence eye account furnished by Muhammad Akbar (P.W.7), Sain Khan (P.W.8) and Maqbool Hussain (P.W.14) duly supported by medical evidence. The learned Division Bench of High Court has confirmed the death sentence of Mushtaq (appellant) by ignoring the fact that role of firing was assigned to all the accused persons namely Shahid, Sodagar and Muhammad Khan and the case of Mushtaq (appellant) could not have been separated from Shahid, Sodagar and Muhammad Khan (appellants) and deserves the similar treatment and sentence. The principle of consistency can be pressed into service and accordingly we are inclined to convert the sentence of death awarded to Mushtaq (appellant) and confirmed by learned Division Bench of Lahore High Court vide judgment impugned to that of life imprisonment. The appeal is accepted up to the above extent.