MUHAMMAD ABDULLAH Versus State

MALIK SHAHZAD AHMAD KHAN, J.--- Through the instant appeal, Muhammad Abdullah (appellant), has sought leave against impugned judgment dated 29.04.2015, passed by the learned Lahore High Court, Bahawalpur Bench. The leave was granted by this Court vide order dated 28.07.2020. Muhammad Abdullah (appellant), being juvenile was tried by the Judge, Anti-Terrorism Court, Bahawalpur Division, Bahawalpur, pursuant to a case FIR No. 445/2007, dated 13.10.2007, registered under sections 302, 324, 148, 149, 109, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997, at Police Station Minchinabad, District Bahawalnagar. The learned trial Court vide judgment dated 25.11.2009, convicted and sentenced Muhammad Abdullah (appellant) as under:-

Under Sections 337-F(iv)/149, P.P.C., to undergo R.I for 5 (five) years with the Payment of 'DAMAN' of Rs. 20,000/-(Twenty thousand).

Under sections 336/149, P.P.C., to undergo R.I for 10 (ten) years with the Payment of ARSH i.e. one half of the value of 'DIYYAT' prevalent in the year of occurrence i.e. Rs.3,77,215/-.

Under sections 460/149, P.P.C., to undergo R.I for 10 (ten) years and fine of Rs.20,000/- (Twenty thousand) and in default of payment of fine to further undergo simple imprisonment for one (1) year.

Under sections 302(b)/149, P.P.C., to imprisonment for life. on (12) twelve counts for causing murders of Muhammad Anwar, Muhammad Aslam, Muhammad Sarwar, Muhammad Idrees, Abdul Sattar, Hajen Sharifan Bibi, Alamgir, Shah Behram, Muhammad Wakeel, Naseem Bibi, Shamoon and Muhammad Ismail.

The appellant was ordered to pay compensation of Rs.2,00,000/-(two lacs) to the legal heirs of each deceased and in default of payment of compensation he was further ordered to undergo simple imprisonment for six (6) months.

Under Section 7-A of Anti-Terrorism Act, 1997/149, P.P.C., the appellant was convicted under section 7-A Anti-Terrorism Act, 1997 and was awarded imprisonment for life with fine of Rs. 1,00,000/- (One lac) and in default of payment of fine to further undergo three (3) years Simple Imprisonment.

The amount of DAMAN' was ordered to be paid to the legal heirs of injured of this case namely Muhammad Ismail Watto, whereas the amount of 'ARSH' was ordered to be paid to Mst. Laalsain injured.

Benefit of section 382-B, Cr.P.C, was also extended to the appellant.

In appeal the learned High Court upheld the convictions and sentences awarded to the appellant.

2.Arguments heard. Record perused.

3.As per contents of the FIR, Fayyaz Ahmad complainant (PW-16), alleged that in the previous year Abdul Razzaq (co-accused since died), lodged FIR No.61/2006, under sections 302/148/149/109, P.P.C., at Police Station Minchinabad against Muhammad Umar, Barish Ali, Muhammad Ishaq son of Lal Khan, Muhammad Ashraf etc regarding the murders of his wife Mst. Rabia Basry, daughters namely Mst. Salma Bibi, Saima Bibi and grandson namely Muhammad Numan, whereas, in-fact he (Abdul Razzaq) had himself committed the said murders. Muhammad Anwar (deceased), who was father of the complainant, used to purse the said case on behalf of the accused side of the said case. On 13.10.2007, the complainant along with his father Muhammad Anwar (deceased) and Muhammad Aslam (deceased), was coming back to his house after offering magrib prayer and when they reached at a Chowk near the house of one Hajen Khursheedan Bibi, Abdul Razzaq (co-accused since died), Muhammad Ishaq (co-accused since convicted in a separate trial), Niaz (co-accused since convicted in a separate trial), Hafiz Abdul Qadir (co-accused since acquitted in a separate trial), Muhammad Sharif (co-accused since acquitted), Qamar Zaman (co-convict since died), Muhammad Dawood (co-accused since acquitted in a separate trial) and Muhammad Abdullah (appellant), while armed with firearms emerged at the spot from the front side. Abdul Razzaq (co-accused since died), raised a lalkara to teach a lesson to the complainant party for opposing the murder case and making him an accused in (the counter version of the said case. Abdul Razzaq (co-accused since died), made a fire shot with his 12-bore gun at Muhammad Anwar, whereas Muhammad Ishaq (co-accused since convicted in a separate trial), made a fire shot with his 12-bore gun at Muhammad Aslam (deceased). Muhammad Anwar (deceased) and Muhammad Aslam (deceased), fell on the ground after sustaining injuries. On raising hue and cry by the complainant and hearing the report of firing, Muhammad Niaz (PW-14), Muhammad Imtiaz (PW-15) and Muhammad Naeeem along with others came at the spot, whereupon the accused persons went towards the house of Muhammad Sarwar while wielding their weapons. The accused persons while going away also caused injuries to Muhammad Ismaeel (deceased). The complainant party attended Muhammad Anwar and Muhammad Aslam but they succumbed to the injuries at the spot. After some time, Muhammad Azam (PW-17), came to the complainant party and informed that Abdul Razzaq (co-accused since died), Muhammad Sharif (co-accused since acquitted), Qamar Zaman (co-convict since died), Muhammad Abdullah (appellant), Muhammad Ishaq (co-accused since convicted in a separate trial), Fauji Muhammad Niaz (co-accused since convicted in a separate trial), Muhammad Khan and Shah Muhammad (co-accused since acquitted in a separate trial), had also committed murders of brother of the complainant namely Muhammad Sarwar, brother-in-law ' behnoi ' namely Abdul Sattar and nephew Muhammad Idrees. The complainant was still in uneasiness when Muhammad Jahangir (PW-19), came there and told that Abdul Razzaq (co-accused since died), Muhammad Niaz (co-accused since convicted in a separate trial), Abdullah (appellant), Muhammad Ishaq (co-accused since convicted in a separate trial), Qamar Zaman (co-convict since died), Mushtaq (co-accused since convicted in a separate trial) and Muhammad Abbas (co-accused since acquitted), had also committed the murders of Mst. Sharifan Bibi, Mst. Naseem Bibi, Muhammad Wakeel, Shah Behram, Muhammad Shamoon, Alamgir and Muhammad Ismacel by making fire shots and caused injuries to Mst. Laalsain. Later on, it also transpired that the appellant and his abovementioned co-accused had also committed the murders of Muhammad Ali, Muhammad Ahmad, Mst. Ayesha Bibi and Mst. Ameeran Bibi in the area of Rehmanpura, Police Station Ghumandpur. The accused persons on a petty enmity had killed sixteen (16) persons and had also injured two (02) persons. It was also alleged in the FIR, that the accused persons committed the occurrence on the abetment and instigation of Abdul Razzaq son of Haji Muhammad Zaman and Hafiz Muhammad Yasin (co-accused since acquitted), hence the FIR of this case.

4.The occurrence in this case took place on 13.10.2007 at magrib time, within the area of Mauza Dabber Shakar Ganj, which was situated at a distance of seventeen (17) kilometers from the police station. The matter was reported to the police by Fayyaz Ahmad complainant (PW-16) through written complaint and the formal FIR was also lodged on the same day i.e., on 13.10.2007 at 08.15 p.m. Keeping in view the above-mentioned facts, the time of occurrence, the place of occurrence and its distance from the police station, we are of the view that there was no deliberate or conscious delay in lodging the FIR rather the same was promptly lodged.

5.The ocular account of the prosecution was furnished by Muhammad Niaz (PW-14), Imtiaz Ahmad (PW-15), Fayyaz Ahmad complainant (PW-16), Muhammad Azam (PW-17), Muhammad Riaz (PW-18), Muhammad Jahangir (PW-19) and Shah Nawaz (PW-20). The occurrence in this case took place within the area of Mauza Dabber Shakar Ganj and all the above mentioned eye-witnesses were residents of the same village, where the occurrence took place, therefore, their presence at spot on the date and time of occurrence cannot be termed as un-natural or improbable, rather the same is quite natural. The occurrence in this case took place at magrib wela. The parties were earlier known to each other due to previous enmity of murder cases, therefore, there was no chance of any misidentification of the appellants during the occurrence by the prosecution eye-witnesses. All the abovementioned eye-witnesses were cross-examined at length by the learned defence counsel but their evidence could not be shaken and nothing favourable to the appellants could be brought on the record. They remained consistent on all material aspects of the case, like the time and place of occurrences, the weapons used by the accused, the manner in which the occurrence took place etc. Their evidence is trustworthy and confidence inspiring.

6.The medical evidence of the prosecution was furnished by Dr. Humaira Tariq (PW-1), Dr. Muhammad Tariq Jameel (PW-2), Dr. Muhammad Sharif (PW-3), Dr. Jameel Ahmad Shah (PW-4) and Dr. Riaz Ahmad (PW-5). They conducted postmortem examinations on the dead-bodies of the deceased persons of this case and found firearm wounds on the bodies of the said deceased persons. We are, therefore, of the view that the medical evidence of the prosecution has fully supported the ocular account furnished by Muhammad Niaz (PW-14), Imtiaz Ahmad (PW-15), Fayyaz Ahmad complainant (PW-16), Muhammad Azam (PW-17), Muhammad Riaz (PW-18), Muhammad Jahangir (PW-19) and Shah Nawaz (PW-20).

7.Insofar as the recovery of weapon of offence i.e., gun 12-bore (P-14), at the pointing out of Muhammad Abdullah (appellant), as well as, the positive report of the Punjab Forensic Science Agency (Ex.PKKK), are concerned, we have noted that the empties were recovered from the spot on 13.10.2017. The weapon of offence was recovered from the possession of Muhammad Abdullah (appellant), on 02.12.2007, but the empties were deposited in the office of the Punjab Forensic Science Agency on 03.12.2007, which means that the empties and the weapon of offence were kept together at the police station, hence it is not safe to rely upon the abovementioned evidence of the prosecution regarding recovery of the weapon of offence and the positive report of PFSA (Ex.PKKK), as observed in the judgments reported as "Abdul Wahid v. The State" (2023 SCMR 1278) and "Sarfraz v. The State (2023 SCMR 670) .

8.Insofar as the motive of the prosecution case is concerned, we have noted that no specific motive was alleged against the present appellant and the same was alleged against Abdul Razzaq (co-accused since died). As per prosecution case, Abdul Razzaq (co-accused since died), himself earlier committed the murders of his wife, daughters and grandson but he lodged a fabricated FIR at Police Station Minchinabad against the complainant party of the present case. It is true that Muhammad Abdullah (appellant), was real son of Abdul Razzaq (co-accused since died) but Muhammad Sharif (co-accused), was real brother of Abdul Razzaq (co-accused since died) but the said Muhammad Sharif (co-accused), has already been acquitted by the learned trial Court, which means that the motive alleged against the said co-accused has been disbelieved, therefore, the case of the appellant cannot be distinguished to the extent of motive part of the prosecution case qua the abovementioned Muhammad Sharif (co-accused since acquitted). We are, therefore, of the view that the prosecution could not prove any specific motive against the appellant.

9.Insofar as the conviction and sentence awarded to the appellant for offences under section 7(a) of the Anti-Terrorism Act, 1997, is concerned, we have noted that in the light of law laid down by this Court in the case of "Ghulam Hussain v. The State" (PLD 2020 SC 61) , the ingredients of offence under Section 7(a) of the Anti-Terrorism Act, 1997, are not attracted in this case because it was a case of personal vendetta.

10.Keeping in view all the abovementioned facts, we have come to this irresistible conclusion that though we have disbelieved the prosecution evidence qua the motive and recovery of the weapon of offence but even then the prosecution case against Muhammad Abdullah (appellant), has been proved beyond the shadow of any doubt for offences under sections 148/337-F(iv)/336/460/302(b)/149, P.P.C., through confidence inspiring ocular account and medical evidence.

11.We have, however, noted that in the impugned judgments, no finding was given regarding concurrent running of sentences of imprisonment awarded to the appellant. No reason was mentioned in the impugned judgments in this respect. The appellant was a minor at the time of occurrence and it appears that he had acted under the influence of his father. Moreover, we have also disbelieved the prosecution evidence qua the motive and recovery of weapon of offence from the appellant, therefore, we are of the view that the relief regarding giving a direction for concurrent running of sentences of the appellant has been withheld without any valid reason.

12.In the light of above, this appeal (Crl. Appeal No.310-L/2020), is partly allowed and Muhammad Abdullah appellant is acquitted from the charge under section 7(a) of the Anti-Terrorism Act, 1997. The conviction and sentence awarded to the appellant under section 7(a) of the Anti-Terrorism Act, 1997, are set aside. However, the convictions and sentences under sections 148/337-F(iv)/336/460/302(b)/149, P.P.C., awarded to Muhammad Abdullah (appellant), are maintained. The substantive sentences of imprisonment awarded to the appellant shall run concurrently and benefit of section 382-B Cr.P.C, is also extended to the appellant.

13.Before parting with this judgment, it is pertinent to mention here that we have maintained the convictions and sentences of Muhammad Abdullah (appellant), in connected Crl. Appeal No.312-L/2020, filed in case FIR No. 246 of 2007 vide the judgment of even date. The occurrence of both the cases i.e., present case FIR No.445 of 2007 and FIR No. 246 of 2007, took place on one and the same day. The motive has not been proved in both the cases and the recoveries of weapons of offence have also been disbelieved by us in both the said cases. Under the circumstances, we direct that the sentences of imprisonments awarded to Muhammad Abdullah (appellant), in two separate cases bearing FIR No.445 of 2007 and FIR No.246 of 2007, registered at Police Minchanabad and Police Station Ghumandpur, respectively, District Bahawalnagar, shall run concurrently.

JK/M-116/SC Order accordingly.