WASEEM ABBAS Versus State

ALI NAWAZ CHOWHAN, J.--- Waseem Abbas appellant in Criminal Appeal No.1104 of 2003 was convicted under section 302(b), P.P.C. by the learned Special Judge Anti-Terrorism Court, Sargodha vide judgment, dated 7-6-2003 in case F.I.R. No.45, dated 10-3-2003 registered at Police Station Cantt., Sargodha and sentenced to death with direction to pay Rs.1 lac as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased recoverable as arrears of land revenue or in lieu thereof to undergo six months' R.I. By the same judgment Faheem Abbas and Muhammad Akhtar were acquitted of the charges. The learned trial Court has sent Murder Reference No.25-T of 2003 for confirmation of death sentence awarded to Waseem Abbas. Both these matters are being disposed of through this single judgment.

2. Muhammad Yaseen complainant while appearing in the witness-box as P.W.6 before the learned trial Court narrated the prosecution case as under:

"Deceased Muhammad Younis was my brother. About three months back we were in the Court compound of Sessions Court my brother Ibrahim, my "Bhatijey" P.Ws. Ghulam Shabbir and Faisal were with me. On that day the case of my deceased brother Muhammad Younis under section 13/20/65, A.O. was fixed for hearing therefore, we had come to the Court. A case against my Bhateja Ghulam Akbar under section 13/20/65, A.O. was also fixed on that day in the Court of learned Judicial Magistrate Mr. Ghaffar Mehtab. My deceased brother and Ghulam Akbar were in police custody. When my brother Younis and Bhatija Ghulam Akbar reached the Court in police custody along with other under-trial prisoners then accused Faheem Abbas and Akhtar Joyia emerged from the eastern side and exhorted Lalkara that was the time to take revenge. Accused Waseem Abbas unveiled himself from the "Burka" and fired at my brother Muhammad Younis from a distance of about three feet which hit him on his back. Muhammad Younas collapsed sustaining fire shot injury. Police arrested accused Waseem Abbas red handed. Accused was equipped with the pistols each containing one magazine. Six bullets were recovered from the third magazine which was with accused. I myself, P.Ws. Ibrahim, Ghulam Shabbir and Faisal had witnessed the occurrence."

The motive part of the story was narrated by him as under:---

His statement was corroborated by Salamat Ali constable P.W.7.

3. Dr. Iftikhar Ahmad Awan P.W.3 conducted post-mortem on the dead body of Muhammad Younis deceased and found the following injuries on his person:-

(1) A fire-arm wound of entry 1.5 x 1 c.m. with inverted margins, blackening around the wound was present on back of left chest 2.5 c.m. left and lateral to mid-vertebral line, 8.5 c.m. below the neck. Corresponding hole was present on Qamiz, Bunian and Sweater only on backside.

(2) A fire-arm wound of exit 1/2 x 1/2 c.m. just left and lateral to mid sternal hautch, just below the left clavicle on left chest with everted margins.

According to the doctor the cause of death in this case was accumulative effect of injuries Nos.1 and 2 which caused severe bleeding which led to haemorrhage, shock and death. The injuries were ante-mortem caused by fire-arm weapon and were sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate whereas between death and post-mortem examination was within six hours. Exh.P.B. is the post-mortem report.

4. Muhammad Saleem Draftsman P.W. prepared site plan Exh.P.A. of the place of occurrence. Ali Hussain H.C. P.W.2 deposed about the safe custody of sealed parcels containing blood-stained earth, pistols and empties in the Malkhana of the police station. Mukhtar Ahmad constable P.W.4 escorted the dead body of the deceased to the mortuary for autopsy and produced before the Investigating Officer last-worn clothes of the deceased which he took into his possession vide memo. Exh.P.E. He also transmitted the sealed parcels said to contain blood-stained earth, pistol and an empty. Muhammad Imtiaz P.W.5 identified the dead body of the deceased at the time of post-mortem examination. He is also a witness of recovery memos., Exh.P.F. of blood-stained earth; empty of .30 bore pistol Exh.P.G.; and Veil (Burka) Exh.P.H. Ahmad Khan Sub-Inspector P.W.8 recorded F.I.R. Exh.P.J. on the statement of Muhammad Yasin complainant. He visited the place of occurrence, prepared injury statement Exh.P.C., inquest report Exh.P.D. took into his possession blood-stained earth vide memo. Exh.P.F. and two pistols produced by Salamat Ali and Manazir Ali constable vide memo. Exh.P.K. He also took into his possession crime-empty P.10 from the place of occurrence vide memo. Exh.P.G. and Burka P.5 produced by Salamat Ali constable vide memo. Exh.P.H. He also prepared rough sketch of place of occurrence Exh.P.L. After completion of the investigation he submitted the challan. Report of Chemical Examiner is Exh.P.M. and that of Serologist is Exh. P. N.

5. The accused were examined under section 342, Cr.P.C. They denied the allegations. Waseem Abbas accused/appellant in answer to a question stated that the police registered the case against him with the connivance of the complainant to cover their negligence. They neither opted to appear as their own witnesses under section 340(2), Cr.P.C. nor produced any defence evidence.

6. This occurrence took place in the Court premises when the deceased Muhammad Younas along with Ghulam Akbar were to be produced in arm cases before a Judicial Magistrate by the police while handcuffed. Prior to this, in the motive murder case, both Muhammad Younas and Ghulam Akbar were convicted and sentenced.

7. It is a daytime murder. Clearly there was premeditation. The appellant came near the under-trial prisoners shrouded in a Burqa while fully armed and having two pistols. Through a lightening action, he removed the Burqa and fired a shot at the deceased and tried to escape but was apprehended at the spot by the police.

8. All these facts make a strong incriminating circumstance against him. The prosecution having proved its case to the hilt, the appellant was unable to create any dent in the case and when the learned counsel came c forward to argue his case he was talking of mitigation more than anything else.

9. The following excerpts from the complainant give us further clue about the motive part of the story pertaining to the previous murder:

"I did not state in F.I.R. that my deceased brother Muhammad Younas had made statement in the Court in the trial of motive case that in fact Fahim Abbas had attacked him with dagger and the same hit Imran deceased of that case. I had mentioned in the F.I.R. that the motive of this case was that my deceased brother had injured Fahim Abbas and had committed the murder of Imran friend of Wasim Abbas. The Court which tried the motive case did not agree to the statement of Muhammad Younas and he was convicted and sentenced to life imprisonment. It is correct that Fahim Abbas accused was injured witness and accused Akhtar Joya was also witness in that murder case against Muhammad Younas. I do not know whether the police officials who were with the under-trials including Younas deceased had stated before the Investigating Officers that Fahim Abbas and Akhtar Joya did not take part during the occurrence, neither they raised Lalkara nor they had fled away, from the place of occurrence. Any how I know that Fahim Abbas and Akhtar Joya accused were declared innocent during investigation and they were not challaned to the Court."

"It is correct that according to the evidence against my brother Muhammad Younas in previous murder case, it was alleged that Muhammad Younas deceased had given a dagger blow landing on the neck of the deceased Imran. I do not know if there was a further allegation that the deceased and his companions had given a dagger blow on the chest of the deceased Imran and had also given a dagger blow on the abdomen of Fahim Abbas accused."

10. We, therefore, are of the view that the order of convictions suffers from no illegality and, therefore, we uphold the same.

11. The learned counsel for the appellant while confronted with these circumstances pleaded for mitigation on the ground that it has come in the evidence that the deceased Muhammad Younas was a hardened criminal and was involved in some cases about which reference has been made in the cross-examination of Muhammad Yasin (P. W.6).

12. What the learned counsel for the appellant was stating was that the deceased was not a "Masoom-ud-Dam" and, therefore, the appellant should not be subjected to a capital punishment. In this connection, he has made reference to the following case-law: (1) Federation of Pakistan v. Gul Hassan PLD 1989 SC 633; and (2) State v. Muhammad Hanif 1992 SCMR 2047.

13. Unfortunately, these rulings are distinguishable as far as the case of the appellant is concerned. The following circumstances go against the argument of "Masoom-ud-Dam". (a) Imran, the deceased in the previous murder case was not a brother of the appellant; (b) his brother Fahim Abbas was injured but he did not according to the defence story, participate in this occurrence and pleaded for his innocence and was not, therefore, prosecuted in this case. So what locus standi the appellant had to take the life of the deceased Muhammad Younas, particularly at a time when Muhammad Younas had already been convicted and sentenced in the motive murder case and was now facing the trial in the case under the Arms Ordinance relating to that murder case.

14. When Waseem Abbas had no locus standi, the theory propounded and pressed by the learned counsel for the appellant is left of no avail nor does the law permit him to kill the deceased instead of taking recourse to the law.

15. We, therefore, of the view that the deceased having been already convicted and sentenced and the appellant having no locus standi in respect of retribution, the plea of the learned counsel for the appellant is not acceptable for purposes of mitigation and we, therefore, uphold the sentence awarded by the learned trial Court and dismiss his appeal while answering the Murder Reference in the positive.

N.N.Q./W-50/L Appeal dismissed.