MUHAMMAD BILAL Versus State
ABDUL SAMI KHAN, J.--- Through this appeal under section 410, Cr.P.C. read with section 25 of Anti-Terrorism Act, 1997 Muhammad Bilal appellant has called in question the vires of the judgment dated 12.06.2012 handed down by the learned Special Judge, Anti-Terrorism Court-I, Gujranwala wherein the appellant was convicted for an offence under section 7 (a) of Anti-Terrorism Act, 1997 and was sentenced to death with fine of Rs. 100,000/- (Rupees one hundred thousand only) or in default of payment of fine to further undergo simple imprisonment for 6 months. He was also convicted for an offence under section 302(b), P.P.C. and was sentenced to death for Qatl-i-amd of Adnan Aslam deceased. He was also ordered to pay compensation of Rs.100,000/- (Rupees one hundred thousand only) to the heirs of Adnan Aslam deceased under section 544-A, Cr.P.C. and in case of default of payment thereof he was ordered to further undergo simple imprisonment for six months. The appellant has filed the instant appeal against his convictions and sentences whereas the learned trial court has sent a Capital Sentence Reference under section 374, Cr.P.C. for confirmation or otherwise of his death sentence which has been numbered as Capital Sentence Reference No.30-T of 2012 . We propose to decide both these matters together through this single judgment.
2. The prosecution story set forth in the FIR is described as under:-
"The complainant was resident of Niamatpura City, Gujrat and on the fateful day he along with his son Shahzad Aslam came to the court of Subah Sadiq, Additional Sessions Judge, Gujrat to attend hearing of case in case FIR No. 950/10 under section 302, P.P.C. registered at Police Station Civil Lines. The complainant and his son Shahzad Aslam were on pre-arrest bail in the above said criminal case whereas the other son of the complainant namely Adnan Aslam has been produced to attend proceedings from Judicial lock-up who was arrested in connection with above said criminal case. At about 9.30 am when the complainant and his sons Shahzad Aslam and Adnan Aslam came out of the Court-room after attending proceedings, at that time Muhammad Bilal, Manzoor Ahmad and Shahzad Ahmad, all armed with pistols .30 bore along with two unknown persons who can be identified, who were also standing at the door of the court. As soon as the complainant party came out of the Court-room Muhammad Bilal accused resorted to firing with pistol 30 bore upon son of the complainant namely Adnan Aslam who was in handcuffs and was in custody of the police. The fires made by Muhammad Bilal accused hit Adnan Aslam on right side of his head, second fire hit on his left temporal region and third fire hit on left side of his chest. Adnan Aslam after receiving firearm injuries fell on the ground and died at the spot. It is stated that after Adnan Aslam succumbed to his injuries Manzoor Ahmad and Shahzad fled away from the scene of crime along with two unknown persons. Due to this act of the accused persons sense of fear prevailed in the Court-premises. Besides Shahzad Aslam the occurrence was witnessed by Muhammad Amir Cheema, Muhammad Zaman Cheema along with the complainant who also came in pursuance of court proceedings. The motive set up by the complainant in the FIR is previous enmity between the parties.
It may not be out of place to point here that in proceedings conducted by the police just after the occurrence it has been mentioned that accused person along with pistol .30 bore was caught by the police red-handed, from the place of occurrence three empties of pistol .30 bore along with one live bullet has also been collected by the police. On the application submitted by the complainant at the spot formal FIR No. 204, dated 11.03.2011 was lodged at Police Station Civil Lines, Gujrat in respect of offences under sections 302/148/149, P.P.C."
3. The prosecution in order to prove its case against the appellant examined as many as thirteen witnesses before the learned trial court whereas one Abid Hussain appeared as DW1. The ocular account in this case has been furnished by Master Muhammad Aslam, complainant (PW9), Muhammad Zaman (PW10) and Ghazanfer Khalid, LHC-1189 (PW8). The complainant (PW9) also deposed about motive in this case. Mukhtar Ahmad, SI/Investigating Officer (PW13) appeared before the learned trial court and stated about various steps taken by him during the course of investigation of this case. The medical evidence in this case was furnished by PW-11 Dr. Nasir Mehmood, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat. Remaining evidence produced by the prosecution is more or less formal in nature.
4. In his statement recorded under section 342, Cr.P.C. the appellant had controverted the allegations leveled against him by the prosecution and he had also professed his innocence. In response to a question that "why this case against you and why the PWs have deposed against you" , he replied as under:-
"In fact, on 04.12.2010, at 09.45 p.m., I along with my father Manzoor Ahmad, brother Muhammad Mahtab, and my paternal cousin Shahzad Ahmad were coming back towards my home in Nayamat Pur after attending Mehdi of one Adnan Mustafa Malhi at Land Pur. On the event full day Muhammad Aslam along with his sons Adnan Aslam (since deceased) armed with pistol .30 bore Shahzad Aslam armed with Kalashnikov while standing in front of their house saw us upon which Master Muhammad Aslam raised lalkara that Muhammad Mehtab be done to death. On hearing this Adnan Aslam opened fire on the person of Muhammad Mehtab which hit on the forehead of Mehtab, causing instant death. When I and my father Manzoor Hussain tried to hold Mehtab, Shehzad Aslam caused Kalashnikov; butt blows. And extended threats not to come near Muhammad Mehtab.
After the above said occurrence a case vide FIR No. 950/10, dated 04.12.2010, under section 302/34, P.P.C. was got registered against Master Muhammad Aslam, Shehzad Aslam and Adnan Aslam, with P.S. Civil Line, Gujrat, whereupon on 24.12.2010, accused Adnan Aslam was arrested on 03.01.2011 pistol .30 bore was got recovered from said Adnan Aslam, and he was sent to Judicial Lock up on 18.01.2011.
As Adnan Aslam was main accused in the FIR No. 950/10, and connecting, incriminating, cogent, plausible, and confidence inspiring, evidence was available against him. This is why Master Muhammad Aslam father of Adnan Aslam was sure that his son shall be awarded death punishment. In order to save the neck of his son Adnan Aslam, he joined hands with Ghazanfar Khalid PW and Arshad constable and hatched a conspiracy to get his son escaped from police custody.
On 11.03.2011 Adnan Aslam who was confined in District Jail Gujrat in connection with above said case along with other accused to be produced in the Courts, was brought by Ghazanfar Khalid PW and Arshad Constable to produce him before learned Subah Sadiq ASJ, Gujrat. In pursuance of the above said conspiracy Ghazanfar Khalid and said Arshad Constable did not hand cuff Adnan Aslam properly, while leaving the hand cuffs unlocked on his wrists. After appearing before learned ASJ when Adnan Aslam was on the way back to Bakhshi Khana, he removed the hand cuffs and escaped. Upon his escape other police officials on duty raised alarm and commanded him to halt, but Adnan Aslam did not pay any heed to the commands and did not stop, where upon police officials opened fire on him. On the other hand, complainant along with his son (on bail) after appearing before Learned ASJ, left the court premises and waited for Adnan Aslam in a vehicle outside the Court premises at main road so as to take Adnan Aslam after his escape from police custody. When Adnan Aslam escaped, he was shot dead by Police Party, on hearing the reports of firing in Court premises. They rushed back towards court premises and found Adnan Aslam dead. Upon this Master Muhammad Aslam agitated that police has killed his son namely Adnan Aslam and extended threats to the police officials that he will get registered a criminal case against the Police Officials who killed his son extra-judicially. Matter was settled, after deliberation and consultation on the terms and conditions that:‑
1. Diyat shall be paid to master Aslam.
2. A Criminal Case, under section 302, P.P.C. shall be registered against the complainant party of that case vide FIR No. 950/10, according to the wishes of Master Muhammad Aslam Complainant of this case.
Resultantly on the application of complainant Master Muhammad Aslam, this case was registered accordingly.
A False, fictitious and fabricated story has been drafted against me. My real brother namely Muhammad Mehtab was done to death By Adnan Aslam, Shehzad Aslam and Muhammad Aslam and a case vide FIR No. 950/10 was got registered against them. The complainant of this case utilized the death of Adnan Aslam and got registered this false case against me to effect compromise in the case vide FIR No.950/10.
PWs are inimical towards me, they are interested witnesses, furthermore they are interested in the outcome of this case."
5. The appellant did not opt to record his statement under section 340(2), Cr.P.C. in disproof of allegation leveled against him by the prosecution.
6. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above whereas rest of accused namely Shehzad Ahmad and Manzoor were acquitted. Hence, this appeal before this Court along with Capital Sentence Reference.
7. Learned counsel for the appellant contends that the impugned judgment is against law and facts. The prosecution has miserably failed to prove its case against the appellant beyond any reasonable shadow of doubt. The deceased himself was involved in murder case and was a notorious person who was killed by the police at the time of his escape from the custody of the police and due to previous enmity the appellant has been booked in this false and frivolous case. As a matter of fact the eye-witnesses were not present at the scene of crime and they were present at the time of occurrence outside to Court-premises to facilitate the deceased in escaping from the police custody but when he was done to death a false and frivolous story had been cooked up against the appellant and his two acquitted co-accused due to their previous enmity with them. There is conflict between the medical evidence and ocular account which is sufficient to disbelieve the prosecution story vis-a-vis culpability of the appellant in this case. The eye-witness account in this case had been furnished by the complainant who is inimical towards the appellant whereas the other eye-witness namely Shahzad Aslam had not been produced before the learned trial court and an adverse view can be drawn that had he be produced before the learned trial court he should have not supported the prosecution case. The complainant and the other eye-witnesses were procured by the police after the occurrence who could not furnish valid reason for their presence at the place of occurrence at relevant time. It is not believable that the appellant who allegedly armed with pistol was apprehended by the police constable at the spot whereas his acquitted co-accused succeeded to flee away from the scene of crime. No independent witness had been associated by the investigating officer with the investigation to confirm happening of occurrence. The motive set up by the prosecution remained far from being proved in this case. The recovery of pistol and crime empties has been planted upon the appellant as the recovery witnesses have adduced false evidence just to strengthen the case of prosecution inasmuch as they contradict each other. The post-mortem examination of the deceased Adnan Aslam was conducted with a delay of six and a half hours which also creates reasonable doubt in the prosecution story. The prosecution has miserably failed to prove its case against the appellant beyond any reasonable shadow of doubt. Learned counsel for the appellant lastly contends that the appellant deserves acquittal from this Court and provisions of section 7(a) of Anti-Terrorism Act, 1997 are not attracted in this case because the occurrence is the result of personal vendetta.
8. On the other hand learned Deputy Prosecutor General has vehemently controverted the contentions raised by the learned counsel for the appellant and he has contended that the appellant is nominated in the promptly lodged FIR with specific role of causing firearm injuries on the person of deceased and the role attributed to him is borne out from the post-mortem report of the deceased Adnan Aslam. The complainant had no reason to falsely implicate the appellant and his co-accused in this case. All the prosecution witnesses corroborated each other on material points and the case against the appellant has been proved beyond any shadow of doubt. The prosecution witnesses are consistent on each and every material point. There are minor discrepancies in the statements of prosecution witnesses which do crop up with the passage of time and the same are not fatal to prosecution case. The ocular account is fully corroborated by the medical evidence as the firearm injuries were found on the body of the deceased exactly at the place where the witnesses deposed before the learned trial court and the same account has been furnished by the PWs in so many words before the learned trial court. The appellant was arrested at the spot and weapon of offence had been recovered from him at the spot in the presence of the witnesses and the weapon was sent to the Forensic Science Laboratory for report. The crime empty collected by the investigating officer from the place of occurrence in the presence of witnesses had also been sent to the Forensic Science Laboratory and report in this regard is positive, in this way recovery of weapon of offence corroborates the eye -witnesses account. The motive has been established as the appellant along with his co-accused has done to death the deceased in pursuance of personal vendetta. As the occurrence took place within the court premises so section 7 (a) of Anti-Terrorism Act, 1997 is attracted in this case. The prosecution has proved its case against the appellant beyond any reasonable shadow of doubt and successfully brought the guilt of the appellant to home. The learned trial court has rightly convicted and sentenced the appellant, therefore, the appeal of the appellant be dismissed.
9. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also minutely scanned the record with great care and caution.
10. It has been observed by us that the matter was reported to the police through written application (Ex. PA) of the complainant without any delay as the occurrence took place in this case on 11.03.2011 at 9.30 a.m., matter was reported to the police at 10.00 a.m. and the FIR was chalked out on the same day at 10.15 a.m. within a span of forty-five minutes whereas the Police Station was situated at a distance of three farlang away towards East from the place of occurrence. So the matter has been reported in this case with sufficient promptitude and there is no unconscionable or inexcusable delay in registration of the FIR. Thus, we have not seen any element of consultation or deliberation over the matter on the part of the complainant with any legal expert.
11. The ocular account in this case has been furnished by Master Muhammad Aslam, complainant (PW9), Muhammad Zaman (PW10) and Ghazanfar Khalid, LHC-1189 (PW8). It was a broad daylight occurrence wherein the complainant and other eye-witnesses had duly pointed accusing fingers towards the appellant as the culprit who had perpetrated the offence and they had assigned him specific role of repeated firing from close range on the person of deceased with .30 bore pistol which hit him on the most vital parts of the body, i.e. left eye, left ear, left side of chest and right partial region and the same ultimately resulted into his death. The role attributed to the appellant is also borne out from Post-mortem Examination Report of the deceased. It will not be out of place to point out here that the appellant had been apprehended by Mukhtar Ahmad, SI (PW-13), Tassawar Hussain, SI and Asjad Javed, SI at the spot when he was trying to flee away so it is not a case of mistaken identity or substitution of the appellant in lieu of real culprit. After overpowering the appellant the above said police officers also snatched weapon of offence, i.e. pistol .30 bore from him. Both the above said eye-witnesses had sufficiently explained the date, time, place, mode and manners of taking place of occurrence in their statements made before the learned trial court. It is admitted at all hands that on the fateful day trial in case FIR No. 950/10 was fixed wherein the eye-witnesses, the appellant and the deceased had duly appeared before Subah Sadiq, learned Additional Sessions Judge, Gujrat, thus, presence of the eye-witnesses, the deceased and that of the appellant is established from the record which fact had not been denied even by the defence rather the same is admitted by the appellant in his statement under section 342, Cr.P.C. While adducing evidence before the learned trial court all the eye-witnesses remained consistent on each and every material point and they have successfully given answers to the questions asked by the learned Defence Counsel before the learned trial court. During their evidence before the learned trial court both the eye-witnesses had explained each and every segment of occurrence in the most scrupulous way. Although they had to endure a lengthy cross-examination by the defence wherein the learned counsel for the defence had put multiple questions but they had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence vis-a-vis the culpability of the appellant in this case. Their evidence not only inspired the confidence of the learned trial court but their testimony has also motivated our confidence to be believed upon the same. To disprove the presence of the eye-witness at the spot at the time of occurrence the learned counsel for the appellant argued that the deceased has been done to death by police officials at the time when he was trying to make his good escape from police custody but we are afraid that such a bald stance taken by the defence at belated stage is not substantiated by any cogent evidence or reliable material whatsoever at all.
12. There is yet another important fact in this case that the eye-witness account in this case is also supported by the evidence of one Ghazanfer Khalid, LHC-1189 who has brought the under-trial prisoner Adnan Aslam deceased before the trial court to attend proceedings. Admittedly he is an independent witness who has no concern with any party at all. During his evidence he has provided full support to the case of the prosecution especially the evidence adduced by the eye-witnesses in this case. To some extent the ocular account has also found support from the evidence of Mukhtar Ahmad, SI (PW13) who along with his colleagues had apprehended the appellant from the court-premises when he has been trying to flee after committing the murder of Adnan Aslam deceased. Even otherwise the parties to this case are known to each other so the question of mistaken identity of the appellant or his substitution by the prosecution witnesses in lieu of real culprits does not arise in this case. It is a natural phenomenon that a real father who has heartfelt love and affection with the deceased due to his close blood-relation would not let off the real culprit to go scot-free and falsely involve the appellant in this case. Although the learned counsel for the appellant has laid great emphasis on the point that the eye-witness account had been furnished by related and chance witnesses whose presence at the scene of crime at relevant time was highly doubtful yet we have observed here that mere relationship of the witnesses with the complainant or the deceased and their previous enmity if any with the appellant alone is not sufficient to smash the evidentiary value of such witnesses. Such evidence can be believed if intrinsic worth of the testimony of related witnesses inspires confidence and the same leads to an inference that the witnesses were present at the scene of the crime and they have seen the occurrence. Such type of evidence needs no further corroboration from any corner. Reliance is placed on the cases of Muhammad Ahmad and another v. The State and others (1997 SCMR 89) and Ijaz Ahmad v. The State (2009 SCMR 99). Even otherwise there are cases like the present one where implicit reliance can be placed on the testimony of interested witnesses if it otherwise inspiring confidence of the Court. Thus, we come to conclusion that prosecution has proved the ocular account beyond any shadow of doubt.
13. Now adverting to the plea taken by the appellant in his evidence before the learned trial court under section 342, Cr.P.C. wherein the while answering a question that would you like to say anything the appellant had tried to establish pitched enmity between him and the complainant party. While admitting his presence at the spot he has taken a particular stand that the deceased, the complainant and the police were in league with each other and the complainant party has managed to facilitate the deceased in absconding from the court-premises but some police officials have killed the deceased at a time when he was trying to flee after attending court-proceedings and after removing his handcuffs. As mentioned above, even the appellant had not brought anything in his defence to prove that the deceased had been done to death by police because he had not produced the officials of police in his defence who had allegedly done to death the deceased during his escape from the police, as has been mentioned in his statement under section 342, Cr.P.C. Mere levelling allegations upon police officials for their joining hands with the complainant and facilitating the deceased in making his good escape from the police custody, as alleged by the appellant in his statement under section 342, Cr.P.C., does not by itself draw an inference into the mind of this Court that it was the police officials who had committed the murder of the deceased. The appellant in his defence has tried to take divergent stands because at one hand he has levelled allegations on the police official to facilitate the deceased in his abscondence whereas on the other hand he has levelled allegation on the police officials that they have killed the deceased, therefore, the plea taken by the appellant cannot be believed by a person of prudent mind as if the police officials wants to facilitate the deceased to flee then why they killed him in the court-premises. We, however, once again observe here that the bald plea taken by the defence in the statement under section 342, Cr.P.C. got recorded by the appellant before the learned trial court that the deceased was murdered by the police officials is an afterthought defence taken by the appellant at belated stage just to save his skin from criminal prosecution otherwise no material whatsoever had been produced by the appellant to substantiate his stance. Law is quite settled on the point that when a particular plea is taken by an accused in his defence the burden of proof shifts on his shoulder to prove the same through reliable oral as well as documentary evidence which is missing in this case. Thus, we are not ready to believe the defence plea taken by the appellant in his statement under section 342, Cr.P.C.
14. The medical evidence had been furnished in this case by Dr. Nasir Mehmood, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat who had conducted post-mortem examination of the deceased and while appearing before the learned trial court as PW11 he had sufficiently explained the locale as well as nature of injuries, the weapon used by the appellant for committing the murder of the deceased and the time between injuries and death in addition to the time between death and the Post-mortem Examination. According to the doctor the death in this case had occurred due to brain haemorrhage shock by injuries Nos. 1 and 2. He has gone on to state that injury No. 3 has also contributed in death of the deceased. He has categorically stated that the injuries were ante-mortem and caused by firearm weapon. Thus, the medical evidence provides full support to the prosecution version/ocular account.
15. So far as the recovery of weapon of offence is concerned as stated above the appellant had been apprehended at the spot by Mukhtar Ahmad, SI (PW13), Tassawar Hussain, SI and Asjad Javed, SI (PW7) and a pistol .30 bore (P7) had been recovered from him at the spot which has been taken into possession vide recovery memo. Ex. PI, three crime-empties (P.4/1-3) were also collected by investigating officer from the spot. The investigating officer had also collected one live bullet of pistol .30 bore (P5) from the spot vide recovery memo. Ex. PG. The three crime-empties (P4/1-3) according to the report of Forensic Science Laboratory matched with the weapon recovered from the appellant at the spot. We are, therefore, of the definite view that the recovery effected from the appellant provides full corroboration to the ocular account in this case.
16. The motive set up in the FIR is statedly previous enmity between the parties which has also been admitted by the appellant in his statement got recorded under section 342, Cr.P.C. before the learned trial court. So it has become apparent that due to previous enmity between the parties the deceased has been done to death by the appellant in this case in court premises when he was produced before the learned trial court so the motive has provided full support to the ocular account.
17. For what has been discussed above an irresistible result of above discussion is that the prosecution has proved its case against the appellant beyond any reasonable doubt through confidence inspiring evidence of ocular account, recovery of weapon of offence, supported by medical evidence and the motive. Thus, Criminal Appeal No.1119 of 2012 is, therefore, dismissed.
18. In sequel to the discussion made above Capital Sentence Reference No. 30-T of 2012 is answered in the affirmative and the death sentence of the appellant is hereby confirmed .
HBT/M-55/L Appeal dismissed.