AHMED NAWAZ Versus HAJI ALLAH DITTA

ALI NAWAZ CHOWHAN; J. ‑‑‑This appeal under section 25 of the Anti‑Terrorism Act, 1997 (Act No. XXVII of 1997) is directed against the order dated 20‑11‑1999 passed by Mr. Hussain Aziz Bhatti, learned Judge Special Court, Anti‑Terrorism, Rawalpindi Division and Islamabad Capital Territory, whereby he convicted the appellant under section 302‑B, P.P.C. and sentenced him to imprisonment for life and a fine of Rs. 2,00,000 or in default, to undergo rigorous imprisonment for one year. The appellant was also convicted under section 353, P.P.C. and was sentenced to two years' rigorous imprisonment and a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for one month. The appellant was further convicted under section 7 of the ATA and was sentenced to death.

2. The brief facts of the case are unfolded from the testimony of Muhammad Mansha, Sub‑Inspector (P.W.14) who is the complainant in this case and on whose complaint, F.I.R. (Exh. PA) was registered. On 18‑5‑1992 when the, occurrence took place, he was posted as Sub‑Inspector at Police Station Jane and had gone to Police Station Injra alongwith police party consisting of one A.S.I. and five constables to assist in the arrest of Khalil‑ur‑Rehman, now appellant before this Court, and who was said to be absconding in a case under section 307, P.P.C. Whose sentence had been reduced by this Court to four years instead of seven years given by the trial Court but was not surrendering to the police for his arrest and for undergoing the remaining part of his sentence. Who was also stated to be an absconder in a case of abduction. The police had received a spy information that he was hiding in the house of his relative Habib Ullah Khan in Dhok Dhakki, Dakhli Chabb.

3. Mirza Abdul Qayyum, Inspector of Police Station Injra was heading the police party for his arrest which comprised 22 police personnels from Police Station Injra, Police Station jand and Police Station Pind Sultani. The police party had reached village Chabb at about 6‑10 a.m. and near the house where the absconder was said to be hiding in a room of the house of his relation Habib Ullah. .

4. It is said that the appellant fired from insider the room through the window on the police which hit the right hand of Mirza Abdul Qayyum, Inspector, who fell down and later died. Habib‑ur‑Rehman and Tariq Aziz (deceased) who were the sons of Habib Ullah, started throwing stones on the police officials. That the police fired in self‑defence and this resulted in the death of Habib‑ur‑Rehman and Tariq Aziz.

5. Muhammad, Mansha, Sub‑Inspector (P.W.14) prepared the injury statement of the three deceased. The injury statement of the deceased Mirza Abdul Qayyum, Inspector, is Exh. PJ, and his inquest report is Exh. PJ/1. The injury statement of Habib‑ur‑Rehman is Exh. PK and his inquest report is Exh. PK/1. The injury statement of Task; Aziz is Exh.PL and his inquest report is Exh. PL/1. The dead bodies later were sent to the mortuary for post -mortem examination. He secured the blood‑stained earth from three places where the dead bodies were lying alongwith the official revolver. He also secured the official revolver of the Inspector Mirza Abdul Qayyum with live bullets. He prepared the site plans and recorded the statements of the witnesses. After post‑mortem examination, the last‑worn clothes of the deceased Inspector were collected by him through A.S.I. Muhammad Rafique and of the other two deceased from the doctor vide memos. Exh. PR and Exh. PS. He got the plans, Exh. PA/1 and, Exh. PA, prepared from the Patwari while scribing his note in red ink.

6. Hadayat Ullah, Constable (P.W.5) corroborated the case of Mansha, S.I. (P. W.14). He went on to say that the appellant had fired with a 7‑MM rifle causing the death of Mirza Abdul Qayyum, Inspector. That the police party also fired on Khalil‑ur‑Rehman, appellant, and because of the cross- firing at the end of the police, the two private persons Habib‑ur‑Rehman and Tariq Aziz were killed. That later the appellant, opened the door of the room in which he was hiding, and ran away.

7. In his cross‑examination, it was revealed that the personnels of the police had surrounded the house of Habib Ullah from three sides while the western side was open. He himself was holding a semi‑automatic rifle and was on the eastern side of the house while the deceased Inspector was towards the west. He had fired about 20 rounds on the window of the room where the appellant was hiding. However, according to him, the empties fired by the police were not taken into possession by Mansha, S.I. During his cross‑examination, he explained that the appellant had made good his escape while he was surrounded by women and that he did fire at him while he was coming out of the room which did not hit him. Nor was the appellant hit by any of the fires shot by the other police personnels. However, when he was confronted with his previous statement under section 161, Cr.P.C., it was found that he did not mention the presence of womenfolk at the spot. He denied the suggestion that on account of police's own mistake and reckless firing at the house of Habib Ullah, Abdul Qayyum, Inspector was hit and he died. To a court's question, he stated that no empty was recovered from inside the room from where the appellant was firing and was also fired at by the police.

8. Altab Hussain Shah, Constable (P.W.7) is another eye‑witness who supported the case of the prosecution. He did not fire any shot and stated categorically that no empty from the police fire was recovered from the place of occurrence. Abid Hussain, F.C. (P.W.9) is the third eye‑witness of the occurrence. He had 20 rounds alongwith his automatic rifle and he had fired five rounds. According to him, the appellant hiding in the room, had fired from the window on the south. He also saw the accused running from the spot and disappearing in the shelter of the trees. Muhammad Rafique, S.I. (P.W.16) and Sher Muhammad, S.I. (P.W.17), eye‑witnesses, too supported the case of the prosecution.

9: Dr. Dost Muhammad (P.W.10) conducted the post‑mortem examination on the dead body of Mirza Abdul Qayyum, Inspector, and found the following injuries on his person:‑‑

(1) An oval shape fire‑arm wound on right hand on dorsal aspect, measuring 6 c.m. x 5 c.m. x underneath bone were completely crushed and fractured.

(2) An oval shape wound (fire‑arm), on right abdomen, 14‑1/2 c.m. on right of umblcus measuring 3 c.m. x 2 c.m. x 13 c.m. deep, bleeding from the wound was present.

The full details gathered on dissection of injury No. 1 are reflected in the statement of Dr. Dost Muhammad (P.W.10) and need not be repeated. In his opinion, death had occurred due to shock and profused haemorrhage from abdominal aoeta due to injury No. 2 which was grievous and dangerous to life and was sufficient to cause death in ordinary course of nature. The time between injuries and death was immediate and that between death and post -mortem was within 3 hours. Exh. PE is the post‑mortem report, while Exh. PE/1 is the pictorial representation of the injuries.

10. Dr. Dost Muhammad also conducted the post‑mortem examination on the dead body of Habib‑ur‑Rehman aged about 17/18 years. He found the following injuries on his person:‑‑

(1) A circular wound on left 'side of forehead 1 c.m. x 1 c.m. x bone deep, 3 c.m. above left eyebrow.

(2) A fire‑arm irregular shape wound on right cheek below right ear lobule and upper part of right leg, measuring 6 c.m. x 5 c.m. and into underneath bones fractured (wound of exit).

(3) A circular wound on left side of neck 1 c.m. x 1 c.m., 6 c.m. below and laterial to ear.

The following was his opinion:‑‑

"The death occurred due to shock and profuse haemorrhage from vessels of neck due to injuries Nos. 2 and 3, which were grievous and dangerous to life and were sufficient to cause death in ordinary course on nature. Time between death and injury was immediate and that between death and post‑mortem was within 6 hours. After conducting the post‑mortem examination, a stitched dead body along with clothes and carbon copy of post-mortem report were handed over to police."

Exh. PG is the carbon copy of the post‑mortem report, while Exh. PG/1 is the pictorial sketch of the injuries.

11. The third post‑mortem examination was also conducted by this doctor. This was on the dead body of Tariq Aziz who was aged about 15/16 years. On external examination, he found an oval shape fire‑arm wound on left front chest, on left border of sternum at first inter costal space, 2 c.m. x 1 c.m. going through and through (wound of entry) and No. 2. A circular fire‑arm on left back chest, at inferior angle of left scapula, measuring 2‑1/2 c.m. x 2 c.m. going through and through (exit wound). The following was his opinion:‑‑

"Death occurred due to shock and profuse haemorrhage from pulmonary vessels and damage to lung due to injuries Nos. l and 2 which were grievous and dangerous to life and were sufficient to cause death in ordinary course of nature. Time between injuries and death was immediate and that between death and post‑mortem was within eight hours."

Exh. PH is the carbon copy of post‑mortem report while Exh. PH/1 is the pictorial sketch of the injuries. The rest of the details are given in the testimony of the doctor and need not be repeated.

12. Muhammad Khan, A.S.I. (P.W.12) is the recovery witness of the Rifle 7‑MM, which the appellant is said to have got recovered with six cartridges lying in his house. The rifle was taken into possession vide memo. Exh. P1, attested by this witness as well as Muhammad Arif, P.W.

13. Ata Muhammad (P.W.13) is the second. Investigating Officer who effected the recovery and had challaned the appellant. During his cross -examination, he stated that he had satisfied himself that the empties recovered from the place of occurrence had been sent to the Forensic Science Laboratory, Lahore, where he had also sent the rifle recovered from the appellant.

14. Ashfaq Ahmad, Girdawar (P. W .1) prepared the site plan, Exh. PA and its duplicate Exh. PA/1. War Ullah Khan, FC (P.W.2) took the sealed parcel containing blood‑stained earth to the Office of the Chemical Examiner, Lahore. Ali Hussain Shah, Head Constable (P.W.3) registered the formal F.I.R. on the complaint of Muhammad Mansha, S. I. Muhammad Suleman (Rtd. Inspector) (P.W.4) had gone alongwith the D.S.P., and to the house of Mst. Noor Namman and made recovery of a Shalwar, P‑1, shirt, P‑2, said to be lying in a room having some stains of blood and these were taken into possession vide memo. Exh. PC. According to ‑ the prosecution story, these were the clothes of the appellant but he himself was not present at the time of the recovery. Suleman Khan, Constable (P.W.18) had taken the dead body of Habib‑ur‑Rehman to the hospital for purposes of post‑mortem examination and he had collected his last‑worn clothes which he handed over to Muhammad Mansha, S. I.

15. Ashfaq Hussain Butt, Assistant Commissioner (P.W.19) conducted a judicial inquiry into the incident, and whose report is Exh. PU. According to his report, the, appellant was an absconder and was taking refuge in the house of Habib Ullah Khan, the father of Tariq Aziz and Habib‑ur‑Rehman deceased and on seeing the police party, he had fired killing Mirza Abdul Qayyum, Inspector, while he also instigated Habib‑ur‑Rehman and Tariq Aziz to pelt stones and, the police in defence, returned the fire killing Tariq Aziz and Habib‑ur‑Rehman. In the report, it was also mentioned that the father of Tariq Aziz and Habib‑ur‑Rehman was paid compensation of Rs. 3,00,000 by the Chief Minister of Punjab.

16. On behalf of the prosecution side; reports of the Chemical Examiner, Exh. PV; Serologist, Exh. PV/1, and the Forensic Science Laboratory, Exh. PX, were tendered.

17. The appellant Khalil‑ur‑Rehman in his statement under section 342, Cr.P.C. pleaded his innocence and stated that he did not hide in the house of Habib Ullah Khan at the time of the raid by the police party. His case was that he had been substituted for some other Khalil‑ur‑Rehman having an alias Killu who was a relation of Habib‑Ullah Khan, the father of the deceased Tariq Aziz and Habib‑ur‑Rehman, and who was an absconder in another case. It was also his case that he was inimical towards Habib Ullah and there was no chance of his taking refuge in that house.

18. The appellant appeared as his own witness under section 340(2), Cr.P.C. and pleaded his innocence and stated that he never fired at Mirza Abdul Qayyum, Inspector. That no rifle was recovered from him:

19. Tariq Mehmood, Muharrer/Head Constable, Police Station Injra, appeared as his witness as D.W.1. According to him, F.I.R. No. 32 of 1983 was registered against one Khalil‑ur‑Rehman alias Kilu son of Aitbar Khan who had been declared as absconder. Whereas, the present appellant Khalil‑ur‑Rehman son of Sardar Khan was involved in F.I.R. No. A1 dated 18‑5‑1992 under sections 302 and 353, P.P.C. which is the present F.I.R. According to him, the appellant was involved in the case under section 41 of the Hudood Ordinance in view of F. I. R. No. 124 of 1990 registered at Police Station Injra.

20. It was also the defence version that the judicial inquiry was a one- sided and bias.

21. During cross‑examination, a defence version advanced was that the occurrence had taken place because of ill‑planning and inefficiency of the Police personnels who had surrounded the house of Habib Ullah.

22. The defence version that the present appellant had been substituted for Khalil‑ur‑Rehman alias Killu son of Aitbar Khan does not seem to be cogent. Firstly why will the present appellant be substituted for a real assailant in an occurrence like the present one nor it appears that this defence version was taken initially before the police. No one had been produced from the village in evidence in support of this theory. The statement of D.W.1 provides no cogent clue to this. Therefore, this version is not believable.

23. Exh. PQ is the site plan of the place of occurrence which shows the positions of the two deceased from the public; the deceased Inspector who was heading the police party and who was standing along with three other police officials as well as the presence of the police personnels behind them at point No. 8. Police personnels were armed with semi‑automatic weapons. There had been profuse firing admittedly by the police resulting in the death of two young boys of the village. But the strangest part of the story is that not a single empty has been recovered from the spot on account of the police firing. There is nothing to point out whether any empty hit the wall of the room from where the appellant was said to have been firing at the police party. No one has pointed out any mark on account of firing on any wall of the said room.

24. It is stated that the appellant made good his escape in the shelter of the womenfolk but the presence of womenfolk does not find mention in statements under section 161 of the Cr.P.C. or in the plan Exh. PQ thus, damaging the story of the police. It was anyhow difficult for him to escape as such in the presence of so many police personnels unhurt and undamaged.

25. Another strange feature of the case is that such a huge police party has been formed for the arrest of a person whose sentence had been reduced by this Court from seven years to four years arid said to be not surrendering. There is a warrant of proclamation placed on file but nothing has been brought on the file to show that the police had obtained his warrant of arrest. Anyway, such an operation as was conducted, was unusual, unnecessary and over‑reaching.

36. Before this Court, it has been argued that the ill‑planning of the police and the excessive firing from the side of the police, had actually caused the death of its Inspector and two others. In the alternate, it was argued that even if the defence version is not to be believed with respect to the plea that the appellant was being substituted for the actual assailant, the fact of the matter remains that the prosecution story had also been distorted. That there was every probability of the returning of fire by the appellant after the police opened fire killing two of his relations and in which case he was acting in self‑defence.

27. The appellant in this case did not raise a plea of self‑defence either before the police or during his trial. The onus of which was on him. He has also not produced any evidence in this connection. But this does not dis entitle the appellant to take benefit if the circumstances of the case show a probability in this connection. Reliance in this connection may be placed on the case of Muhammad Yousaf v. The State 1994 SCMR 1733; Joseph Bullard v. The Queen PLD 1958 PC 36 and Gul Zaman v. The State 1975 PCr.LJ 623.

28. It may further be pointed out that when there is suppression of truth from both sides, the Court is authorised by law to draw its own inference and decide a case accordingly. Reference in this connection may be made to the case of Ahmad Khan v. Nazir Ahmad (1999 SCMR 803); Shamshad v. The State (PLD 1963 SC 740) and Muhammad Yousaf v. The State (1994 SCMR 1733):

29. The judicial inquiry by the Assistant Commissioner does not appear to have been a very thorough exercise.' However, it has come on record that against the death of the two deceased boys, the Government did pay compensation of Rs. 3,00,000. It was argued by the learned counsel for the defence that this was an acknowledgement of the fact that the police in this case had over re‑acted and had committed a mistake while killing the two young boys of the village. The learned defence counsel stretched his arguments by stating that this also shows that the police party was not all that innocent and the probability that they initiated the firing impulsively while reaching the spot, is there. That if there is a probability, its benefits should go to the accused.

30. The occurrence relates to 18‑5‑1992 when the Anti‑Terrorism Act of 1997 had not been promulgated and one wonders how the learned Judge 'of the Anti‑Terrorism Court constituted under ATA of 1997 could punish the appellant under section 7 of the Act.

31. Section 38 of the Anti‑Terrorism Act, 1997, reads as follows:‑‑

" Punishment for terrorist act committed before this Act ‑‑‑Where a person has committed an offence before the commencement of this Act which is committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed."

Which means that whereas the case could have been tried by the ATA Court but the punishment could not have been given under the provision of the new p dispensation and in which case the existing law at the relevant time had to be applied. We, therefore, set aside the conviction under section 7 of the ATA as well as the sentence to death.

32. One thing which has also to be kept in view is that the prosecution only attributes a single fire to the appellant, which means, there is no repetition and it does not categorically ascribe an intention to him for killing the Inspector.

33. This was, therefore, not a case falling under section 302(a) of the Pakistan Penal Code and the appellant was also not convicted as such. But while convicting him under section 302(b) of the Pakistan Penal Code, the learned trial Court did not stress itself in appreciating that keeping in view the observations made hereinabove, this was a case of diminishing liability on various grounds i.e. provocation, nervousness, loosing self‑control etc., and ought to have extended the required benefit to the appellant. Reference in this connection may be made to the case of Abdul Haq v. The State (PLD 1996 SC 1). Therefore, keeping in view the circumstances of this case, we are of the considered view that the case of the appellant fell under the provision of section 302(c) of the Pakistan Penal Code and we, therefore; alter the conviction from section 302(b) to section 302(c), P.P.C. and reduce the sentence of life imprisonment to 12 years' R.I. and the fine from Rs. 2,00,000 to Rs. 1,00,000. In default of payment of fine, the appellant shall undergo simple imprisonment for one year. We uphold the conviction under section 353, P.P.C. and consequently the sentence awarded to him of 2 years' R.I. and a fine of Rs. 1,000 or in default of payment of fine, suffering of simple imprisonment for one month, is upheld. The sentences are to run concurrently. The appeal is decided accordingly and the death sentence is not confirmed.

Q.M.H./M.A.K./K‑85/L Order accordingly.