FATEH SHER Versus State

ISHTIAQ IBRAHIM, J.--- The petitioner, Fateh Sher, along with his co-accused, namely, Zahoor Ahmad, Ghafoor Ahmad, Muhammad Ramzan, Tanveer Ahmad, and Muhammad Munir, was charged in case FIR No.133 dated 18.05.2008, registered under Sections 302, 452, 148, and 149 of the Pakistan Penal Code, 1860 ( 'P.P.C.' ), read with Section 7 of the Anti-Terrorism Act, 1997 ( 'ATA' ), at Police Station Mitha Tiwana, District Khushab, with the allegations that on 18.05.2008 at about 12:00 noon, they all while forming an unlawful assembly and acting in furtherance of their common object, forcibly trespassed into the house of Mst. Safia Bibi and committed her murder and the murder of her son Wali Ahd Shahzadaa and daughter Mst. Shaheen Kausar, deceased respectively, by firing and slitting their throats with daggers.

2.On arrest of petitioner Feteh Sher and completion of the investigation, a report under Section 173, Cr.P.C. was submitted against him before the learned Sessions Judge/Special Judge, Anti-Terrorism Act, 1997, Sargodha ( 'Trial Court' ). After a full-dressed trial, the Trial Court vide judgment dated 26.01.2011, convicted the petitioner under Section 148, P.P.C. and sentenced him to undergo three years' rigorous imprisonment (R.I) along with a fine of Rs. 20,000/-, and in default of payment thereof, to further undergo three months' simple imprisonment (S.I). The petitioner was further convicted under Section 452 read with Section 149, P.P.C. and sentenced to seven years' R.I, along with a fine of Rs. 50,000/-, and in default thereof, to undergo six months' S.I. He was also convicted under Section 302(b) read with Section 149, P.P.C. and sentenced to death as Ta'zir on three counts and to pay Rs.2,00,000/- on each count to legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I. under each count. He was also convicted under section 7(a) of ATA and sentenced to death and to pay Rs.2,00,000/- as fine and in default thereof to further undergo one month S.I. while under section 21-L ATA he was sentenced to ten years R.I.

3.Criminal Appeal filed by the petitioner-convict was dismissed by the Lahore High Court, Lahore ( 'the High Court' ) and consequently answered the Murder Reference/CSR No.6-T of 2011, sent by the Trial Court for confirmation or otherwise of the death sentence, in the affirmative vide judgment dated 18.03.2015 ( 'impugned judgment' ). Through the instant Jail Petition, the petitioner-convict seeks leave to appeal against the impugned judgment of the High Court.

4.We have heard the arguments of learned counsel for the parties as well as the learned Additional Prosecutor General, Punjab, appearing on behalf of the State and perused the record, evidence and the impugned judgment with their able assistance.

5.Before adverting to the case of the petitioner-convict Fateh Sher in the light of the evidence available on record, it would be advantageous to briefly refer to the fate of the case of co-accused. Initially co-accused Zahoor Ahmad, Muhammad Ramzan, Ghafoor Ahmad, Tanveer Ahmad and Muhammad Munir were arrested. After facing a full-fledged trial, they were convicted and sentenced by the learned Trial Court vide judgment dated 09.10.2008. Besides convictions under other offences, accused Zahoor Ahmad and Ghafoor Ahmad were awarded the sentence of death on three counts. Through the same judgment, co-accused Tanveer Ahmad and Muhammad Ramzan were convicted under Section 302(b), P.P.C., however, sentenced to imprisonment for life each. The conviction and sentence awarded to Zahoor Ahmad remained intact up to this Court and the sentence of death was eventually executed. As regards accused Ghafoor Ahmad, his conviction was maintained by the High Court, however, his sentence of death was altered into imprisonment for life. Likewise, the appeal preferred by accused Muhammad Ramzan was dismissed by the High Court and thereafter the jail petition filed by him before this Court also met the same fate.

6.Turning now to the case of the petitioner, the record reveals that the unfortunate occurrence, in which three members of the same family, namely Mst. Safia Bibi, her daughter Mst. Shaheen Kausar and her son Wali Ahd Shahzada, were brutally done to death took place on 18.05.2008 at about 12:00 noon inside their residential house, situated in Mohallah Dhorian Wala Mitha. The incident was reported to police with promptitude at 1:00 p.m. on the same day by Mst. Saira Yasmeen (PW-7), daughter of deceased Mst. Safia Bibi. The prosecution case rests upon the ocular account furnished by complainant Mst. Saira Yasmeen (PW-7), and her brother Rustam Shahzada (PW-8). Petitioner Fateh Sher undeniably is the maternal cousin of deceased Mst. Safia Bibi. Accused Zahoor Ahmad and Ghafoor Ahmad are the maternal uncles of the eye-witnesses while brothers of Mst. Safia Bibi deceased. According to the testimony of the eye-witnesses, on the fateful day, they along with their deceased mother, sister Mst. Kausar Shaheen and brother, Wali Ahd Shahzadaa were present in their house when at about 12:00 noon, petitioner Fateh Sher armed with a dagger, co-accused Ghafoor Ahmad and Zahoor Ahmad armed with daggers, Muhammad Ramzan empty-handed, Tanveer Ahmad and Muhammad Munir, both armed with pistols, forcibly entered their house; that Tanveer Ahmad and Muhammad Munir made fire shots with their respective pistols at Wali Ahd Shahzada, as a result, he got hit and died on the spot; that thereafter, accused Ghafoor Ahmad caught hold of Mst. Shaheen Kausar, whereupon the petitioner Fateh Sher cut her throat with a dagger who died there and then. Similarly, accused Muhammad Ramzan caught hold of Mst. Safia Bibi deceased while Zahoor Ahmad cut her neck from back side with a dagger, as a result, she died on the spot. Upon the hue and cry raised by the inmates of the house, one Ahmad Hayat reached the place of occurrence, whereupon all the accused persons fled away from the scene. According to the eye-witnesses, the motive behind the occurrence was that the accused were unhappy on the engagement of Mst. Shaheen Kausar deceased with one Mubashir Hayat. The occurrence having taken place inside the house of the deceased persons, the presence of both the eye-witnesses at the spot who were the inmates of the same house is most natural and beyond any doubt. The incident occurred in broad daylight and, admittedly, the petitioner Fateh Sher was closely related to the eye-witnesses, therefore, no question of mistaken identity arises. Both the eye-witnesses consistently assigned to the petitioner the specific role of cutting the throat of deceased Mst. Shaheen Kausar with a dagger. Being the real brother and sister of the two deceased and son and daughter of deceased Mst. Safia Bibi, it is unbelievable that the eye-witnesses would substitute the real culprits with innocent persons, particularly their close relatives as co-accused Zahoor Ahmad and Ghafoor Ahmad are the maternal uncles of the eye-witnesses (brothers of Mst. Safia Bibi deceased) while present petitioner Fateh Sher is the maternal cousin of deceased Mst. Safia Bibi. It is by now a settled principle of law that close relatives of the deceased ordinarily would not shield the actual offender and falsely implicate innocent person(s). Despite extensive cross-examination, nothing favourable to the defence could be elicited from the eye-witnesses so as to cast any dent in their credibility or to render their presence at the place of occurrence doubtful. Their testimony remained consistent on all material particulars and inspired confidence. It may also be observed that the role attributed to the petitioner Fateh Sher is substantially similar to that assigned to accused Zahoor Ahmad who was charged for slaughtering/cutting the neck of Mst. Safia Bibi while the petitioner is charged for slaughtering/cutting the neck of Mst. Shaheen Kausar deceased. Accused Zahoor Ahmad, as stated earlier, was awarded the sentence of death by the learned Trial Court, which remained unaltered up to this Court and was eventually executed.

7.The medical evidence furnished by Dr. Anjum Naheed (PW-15), who conducted the post-mortem examination of deceased Mst. Safia Bibi, fully corroborates the ocular account furnished by the prosecution witnesses. According to statement of the lady doctor, she noticed an incised wound lying horizontally and encircling whole of the neck above the hyoid bone trachea, major vessels of the neck, and muscles were incised. 2nd and 3rd cervical vertebrae were fractured. Oesophagus was also partially incised. Death of the wound was 3x4 cm. He also noticed an incised wound 11/2 1/2 cm on lower left border of her neck and an incised wound l 1 cm on lower left cheek. The doctor categorically opined that the said injuries were sufficient to cause death and had, in fact, resulted in the unnatural death of Mst. Shaheen Kausar deceased. The medical evidence is, thus, in complete harmony with the ocular account regarding the nature, seat and dimensions of the injuries sustained by the deceased and furnishes strong corroboration to the prosecution version. The eye-witnesses have specifically assigned infliction of the aforesaid injuries upon deceased Mst. Shaheen Kausar to the petitioner Fateh Sher.

8.We have independently re-appraised the evidence available on the record and have no hesitation in concluding that the prosecution has succeeded in proving its case against the petitioner beyond any shadow of reasonable doubt. The guilt of the petitioner stands established through trustworthy, confidence-inspiring and consistent ocular testimony, which finds full support from the medical evidence as well as the attending circumstances of the case. The findings concurrently recorded by the learned Trial Court and the High Court are based upon a correct and proper appraisal of the evidence and suffer from no misreading or non-reading of any material piece of evidence warranting interference by this Court. The manner in which the occurrence was perpetrated reflects an extraordinary degree of brutality, cruelty and depravity. Three innocent members of the same family, namely a mother, her daughter and her son, were mercilessly put to death inside the sanctity of their own home. The two female deceased were slaughtered like animals. The petitioner actively participated in the commission of the offence and was assigned a specific role of slaughtering Mst. Kausar Shaheen deceased with a dagger. The gruesome nature of the injuries, the vulnerability of the victims, and the fact that the offence was committed against close blood relatives clearly shows the extreme callousness with which the crime was executed. The petitioner, therefore, is not entitled to any leniency in the sentence. The brutality displayed in the occurrence far outweighs any consideration that could possibly be advanced in favour of the petitioner. The evidence establishes the direct and active involvement of the petitioner in the commission of a cold-blooded triple murder. In such circumstances, we do not find any mitigating circumstance, either singly or collectively, which may warrant extending the benefit of a lesser sentence to the petitioner.

9.Nevertheless, we are persuaded by the contention that the present case does not fall within the ambit of the Anti-Terrorism Act, 1997 (ATA). The occurrence appears to have stemmed from personal vendetta and there is nothing on the record to bring the case within the ambit of the law settled by the larger Bench of this Court in Ghulam Hussain's case (PLD 2020 SC 61) , wherein it was held that offences motivated by private enmity or personal disputes, without the requisite nexus with the objectives contemplated by the Anti-Terrorism Act, would not attract the provisions of the said enactment. Accordingly, while maintaining the conviction and sentence of death awarded to the petitioner under Section 302(b), P.P.C., the conviction and sentence of the petitioner recorded under section 7(a) ATA are liable to be set aside.

10.In view of what has been discussed above, this Jail Petition is converted into an appeal and is partly allowed. The conviction and sentence of the appellant under the provisions of the Anti-Terrorism Act, 1997 are set aside. However, his convictions and sentences under the remaining provisions of law, including the sentence of death awarded to him under Section 302(b), P.P.C., are maintained and the appeal to that extent is dismissed.

JK/F-5/SC Order accordingly.