P L D 2015 Supreme Court 145

Present: Asif Saeed Khan Khosa, Iqbal Hameedur Rahman and Umar Ata Bandial, JJ

MUHAMMAD RAHEEL alias SHAFIQUE—Appellant

Versus

The STATE—Respondent

Criminal Appeal No. 291 of 2007, decided on 6th January, 2015.

(Against the judgment dated 11-5-2006 passed by the Lahore High Court, Lahore in Criminal Appeal No.12-J of 2005 and Murder Reference No.7-T of 2005)

(a) Penal Code (XLV of 1860)—

—-S. 302(b)—Qatl-i-amd—Reappraisal of evidence—Sectarian killing—Death sentence, confirmation of—Promptly lodged F.I.R.—Specific allegations—At the spot arrest—Medical account supporting ocular account—Effect—F.I.R. was lodged with great promptitude and in the F.I.R. the accused had been nominated as the sole perpetrator of both the murders—Specific allegations had been levelled against the accused in the F.I.R. vis-a-vis causing specific injuries to both the deceased and such allegations had subsequently been substantiated and established through consistent statements made by as many as three eyewitnesses who resided in the same house wherein the occurrence had taken place and who were nothing but natural witnesses—Motive, in the present case, was sectarian hostility which had not been seriously doubted during the trial—Medical evidence provided sufficient support to the ocular account furnished by the natural and consistent eyewitnesses—Accused was apprehended at the spot and his physical custody as well as the weapons recovered from his custody were handed over by the complainant party to the local police within minutes of taking place of occurrence—Involvement of accused in the murders had been proved by the prosecution beyond reasonable doubt—Appeal was dismissed accordingly and death sentence awarded to accused was upheld.

(b) Penal Code (XLV of 1860)—

—-Ss. 100 & 302(b)—Qanun-e-Shahadat (10 of 1984), Art. 121—Qatl-i-amd—Reappraisal of evidence—Right of private defence, plea of—Proof—No witness produced to establish such plea—Presumption—Plea of right of private defence had been advanced by the accused through his statement recorded under S.342, Cr.P.C. as well as through some suggestions put to the eye-witnesses during their cross-examination but the accused had failed to make a statement on oath under S.340(2), Cr.P.C. and he had also failed to produce any witness in his defence who could enter the witness-box and confirm the plea being advanced by the accused—Provisions of Art. 121 of the Qanun-e-Shahadat Order, 1984 clearly provided that in such a case the court was to presume the absence of circumstances supporting the plea of exercise of right of private defence being advanced by the accused and it was incumbent upon the accused to establish the said circumstances before the Trial Court through positive evidence which he had completely failed to do in the present case—Appeal was dismissed accordingly and plea of right of private defence was rejected.

(c) Criminal trial—

—-Acquittal—Scope—‘Falsus in uno, falsus in omnibus’—Applicability—Acquittal of co-accused persons may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution’s case against a convicted accused who was attributed fatal injuries to the deceased—Principle of “falsus in uno falsus in omnibus” was not applicable in Pakistan.

(d) Juvenile Justice System Ordinance (XXII of 2000)—

—-S. 7—Claim of juvenility—Proof—Onus of proof—Claim of juvenility was based upon an assertion of fact and the onus to prove such fact was upon the accused person and if he failed to establish such fact through positive evidence then no advantage could be taken by him on such score and no benefit of any doubt regarding his age could be extended to him.

Masood Sarwar v. Sadaqat Hussain and others 2007 SCMR 936; Tauqeer Ahmed Khan v. Zaheer Ahmad and others 2009 SCMR 420; Muhammad Akram v.The State 2003 SCMR 855; Muhammad Ajmal v.The State through Advocate-General, Punjab PLD 2003 SC 1; Ziaullah v. Najeebullah and others PLD 2003 SC 656; Tauqeer Ahmed Khan v. Zaheer Ahmed Khan 2009 SCMR 420 and Om Prakash v. State of Rajasthan and another 2012 SCMR 1400 ref.

(e) Juvenile Justice System Ordinance (XXII of 2000)—

—-S. 7—Juvenility—Delayed claim of juvenility—Effect—Delayed claim of juvenility advanced by an accused person was to be visited with an adverse inference against him.

Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758; Sarfraz alias Shaffa v. The State and 3 others 2007 SCMR 758; Muhammad Aslam and others v. The State and another PLD 2009 SC 777 and Faisal Aleem v. The State PLD 2010 SC 1080 ref.

(f) Penal Code (XLV of 1860)—

—-S. 302(b)—Juvenile Justice System Ordinance (XXII of 2000), S.7—Qatl-i-amd—Reappraisal of evidence—Delayed claim of juvenility—Effect—Accused had never claimed at any stage of the trial that he was a child, he had never agitated before the High Court that he was a juvenile and he had led no evidence before any court regarding his date of birth—Any belated attempt made by the accused in such regard before the Supreme Court may not be met with approval or acceptance—Mere mentioning of the accused’s age in his statement recorded under S.342, Cr.P.C. was not a conclusive determining factor regarding his actual age for the purposes of declaring him a juvenile—Appeal was dismissed accordingly and claim of juvenility was rejected.

Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758; Sarfraz alias Shaffa v. The State and 3 others 2007 SCMR 758; Muhammad Aslam and others v. The State and another PLD 2009 SC 777 and Faisal Aleem v. The State PLD 2010 SC 1080 ref.

(g) Penal Code (XLV of 1860)—

—-S. 302(b)—Murder—Convict on death row—Convict spending lengthy period of time on death row during pendency of his appeal before the Supreme Court—Mitigating factor—Scope—Such ground was not sufficient all by itself to convert a sentence of death into that of imprisonment for life but it could only be considered as one of the circumstances which, in a given case, may persuade a court to reduce a convict’s sentence from death to imprisonment for life if there were some other mitigating circumstances also available in the case.

Khalid Iqbal v. Mirza Khan and another (Criminal Review Petition No.76 of 2008 decided on 26-11-2014) PLD 2015 SC 50 ref.

(h) Penal Code (XLV of 1860)—

—-S. 302(b)—Cruel and brutal sectarian murder—Re-appraisal of evidence—Convict on death row—Convict spending lengthy period of time on death row during pendency of his appeal before the Supreme Court—Mitigating factor—Scope—Accused had acted cruelly and brutally and what he had done was in furtherance of sectarian hostility—Accused had repeatedly fired at and killed two persons belonging to the opposite religious sect and had demonstrated extreme desperation which factors detracted from any sympathy to be evoked in the matter of his sentence and, thus, his mere spending of a long time awaiting execution of the sentence of death was not a valid basis for reduction of his sentence from death to imprisonment for life—Appeal was dismissed accordingly and death sentence awarded to accused was maintained.

(i) Anti-Terrorism Act (XXVII of 1997)—

—-Ss. 6 & 12—Sectarian killing—Anti-Terrorism Court, jurisdiction of—Scope—Sectarian killings were also included in the definition of ‘terrorism’ contained in S.6 of the Anti-Terrorism Act, 1997 and, thus, an Anti-Terrorism Court was possessed of the requisite jurisdiction to try a case of sectarian killing.

Sheikh Muhammad Suleman, Advocate Supreme Court for Appellant.

Ahmed Raza Gillani, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 6th January, 2015.

JUDGMENT

 

ASIF SAEED KHAN KHOSA, J.—At about 8-45 p.m. on 4-5-1994 Syed Bashir Hussain Bokhari complainant was available at his house along with some others including Maulana Nasir Hussain Najfi and Maulana Maqbool Hussain Khan when Muhammad Raheel alias Shafique appellant emerged there and fired at and killed Maulana Nasir Hussain Najfi and Maulana Maqbool Hussain Khan and the said murders were nothing but sectarian killings. F.I.R. No. 103 was lodged in respect of that incident by Syed Bashir Hussain Bokhari complainant at Police Station City, Sargodha at 9-10 p.m. in respect of offences under section 302, P.P.C. read with section 34, P.P.C., section 13 of the Pakistan Arms Ordinance, 1965 and sections 4/5 of the Explosive Substances Act, 1908. The appellant was tried in connection with that case by the learned Judge, Anti-Terrorism Court, Sargodha Division, Sargodha and vide judgment dated 14-11-1996 the appellant was convicted on two counts of an offence under section 302(b), P.P.C. and was sentenced to death on each count and to pay a fine of Rs.1,00,000 on each count or in default of payment thereof to undergo rigorous imprisonment for ten years on each count. The appellant challenged his convictions and sentences before the Lahore High Court, Lahore through Criminal Appeal No.12-J of 2005 which was heard by a learned Division Bench of the said Court along with Murder Reference No. 7-T of 2005 seeking confirmation of the sentences of death passed by the learned trial court against the appellant. Finally, vide judgment dated 11-5-2006 the said appeal was dismissed, the Murder Reference was answered in the affirmative and the sentences of death passed against the appellant were confirmed. Hence, the present appeal by leave of this Court granted on 6-8-2007.

  1. We have heard the learned counsel for the parties at some length and have gone through the record of the case with their assistance. It has been argued by the learned counsel for the appellant that in his statement recorded under section 342, Cr.P.C. the appellant had advanced a plea of exercise of right of private defence and the circumstances of the case had gone a long way in confirming the said plea advanced by the appellant; five co-accused of the appellant had been acquitted by the learned trial court on the basis of the same evidence and the High Court had upheld their acquittal and, thus, the same witnesses produced by the prosecution against the said co-accused could not have safely been relied upon vis-a-vis the appellant; the appellant has remained behind the bars for a long time and, thus, by virtue of the law declared by this Court in various judgments the appellant is entitled to be extended the concession of reduction of his sentence from death to imprisonment for life on this score; in view of the age of the appellant mentioned in his statement recorded under section 342, Cr.P.C. the appellant was aged about sixteen years at the time of the alleged occurrence and, thus, the sentence of death could not have been passed against him on account of his juvenility; the prosecution itself wanted the learned trial court to believe that the appellant was acting under the influence of the elders of his religious sect and, thus, on this score too his sentence of death ought to be reduced to imprisonment for life; and the prosecution had not been able to prove its case against the appellant beyond reasonable doubt entitling him to be acquitted of the charge or, in the alternative, his sentences of death warrant reduction to those of imprisonment for life on each count. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has maintained that the plea of exercise of right of private defence advanced by the appellant through his statement recorded under section 342, Cr.P.C. was never established or substantiated by the appellant through any independent evidence and, thus, the said plea was rightly rejected by the learned courts below; the appellant had never taken a plea of juvenility before any court below and no independent evidence had ever been produced by the appellant regarding his tender age at the time of the occurrence; the appellant was the sole perpetrator of the murders in issue and, thus, the argument regarding his acting under the influence of his elders was not legally tenable; the five acquitted co-accused of the appellant had not caused any injury to any person and, thus, their acquittal by the learned courts below did not react against the appellant’s convictions; both the learned courts below had concurred in their conclusion that the prosecution had succeeded in establishing the appellant’s guilt to the hilt; in the peculiar circumstances of the case the appellant deserved nothing less than a sentence of death; and the concurrent findings of the learned courts below do not warrant any interference by this Court.
  1. After hearing the learned counsel for the parties and going through the record we have observed that the F.I.R. in this case had been lodged with great promptitude and in the F.I.R. the present appellant had been nominated as the sole perpetrator of both the murders. In the F.I.R. specific allegations had been levelled against the appellant vis-a-vis causing specific injuries to both the deceased and those allegations had subsequently been substantiated and established through consistent statements made by as many as three eye-witnesses who resided in the same house wherein the occurrence had taken place and who were nothing but natural witnesses. The motive in this case was sectarian hostility which had not been seriously doubted during the trial. The medical evidence had provided sufficient support to the ocular account furnished by the natural and consistent eye-witnesses. The most important and crucial factor going against the appellant was that he was apprehended at the spot and his physical custody as well as the weapons recovered from his custody were handed over by the complainant party to the local police within minutes of taking place of the occurrence. In his statement recorded under section 342, Cr.P.C. the appellant had not controverted his having been arrested at the spot and his having been handed over to the local police soon after the occurrence. In these circumstances the appellant’s involvement in the murders in issue had indeed been proved by the prosecution beyond reasonable doubt.
  1. As regards the plea of exercise of right of private defence advanced by the appellant we note that the said plea had been advanced by the appellant through his statement recorded under section 342, Cr.P.C. as well as through some suggestions put to the eye-witnesses during their cross-examination but the appellant had failed to make a statement on oath under section 340(2), Cr.P.C. and he had also failed to produce any witness in his defence who could enter the witness-box and confirm the plea being advanced by the appellant. The provisions of Article 121 of the Qanun-e-Shahadat Order, 1984 clearly provide that in such a case the Court was to presume the absence of circumstances supporting the plea of exercise of right of private defence being advanced by the appellant and it was incumbent upon the appellant to establish the said circumstances before the learned trial court through positive evidence which he had completely failed to do. The said plea had, thus, failed to travel beyond a mere verbal assertion. In this view of the matter it has not surprised us to learn that the plea of exercise of right of private defence advanced by the appellant was outrightly rejected by both the learned courts below. As regards the injuries sustained by the appellant and his clothes being smeared with blood at the time of his arrest by the police the same could be explained because after the incident the appellant had been apprehended by the complainant party at the spot and it is but natural that he would have been dished out some primitive justice by the complainant party there and then before arrival of the police.
  1. It may be true that five co-accused of the appellant had been acquitted by the learned trial Court and their acquittal had subsequently been upheld by the High Court but at the same time it is equally true that the said acquitted co-accused had not been attributed any injury to any of the deceased and their roles alleged by the prosecution were merely secondary in nature. The prosecution had not been able to produce sufficient or convincing evidence before the learned trial court regarding the roles attributed to those accused persons and, thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution’s case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in uno falsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant.
  1. The argument of the learned counsel for the appellant that the appellant had acted under the influence of his elders has also failed to impress us because it was the appellant alone who had caused all the injures to both the deceased at a time when none of his co-accused was physically accompanying him at the spot. It was alleged that some co-accused of the appellant were available in some other part of the building in question when this occurrence had taken place but admittedly no exhortation was made by them requiring the appellant to go ahead and kill the deceased. It is, therefore, not a case of the appellant acting under the immediate influence of others at the spot and the allegation regarding providing of behind-the-scene abetment by the co-accused had not been accepted by the learned courts below.
  1. On the strength of the statement of the appellant recorded under section 342, Cr.P.C., wherein the appellant’s age had been recorded as eighteen years, it has been maintained by the learned counsel for the appellant that the appellant was about sixteen years of age at the time of the occurrence and, thus, he could not have been awarded a sentence of death. In support of this argument the learned counsel for the appellant has referred to the cases of Umar Hayat v. Jahangir and another (2002 SCMR 629) and Muhammad Afzal v. The State (PLD 1976 SC 568). Recording of an accused person’s age at the time of recording his statement under section 342, Cr.P.C. is invariably based upon a cursory visual assessment which can substantially be off the mark as, proverbially, appearances can be deceptive. It is unfortunate that the later judgments rendered by this Court have escaped notice of the learned counsel for the appellant which judgments make it abundantly clear that a claim of juvenility is based upon an assertion of fact and the onus to prove such fact is upon the accused person and if he fails to establish such fact through positive evidence then no advantage can be taken by him on this score and no benefit of any doubt regarding his age can be extended to him. A reference in this respect may be made to the cases of Masood Sarwar v. Sadaqat Hussain and others (2007 SCMR 936), Tauqeer Ahmed Khan v. Zaheer Ahmad and others (2009 SCMR 420), Muhammad Akram v. The State (2003 SCMR 855), Muhammad Ajmal v. The State through Advocate-General, Punjab (PLD 2003 SC 1), Ziaullah v. Najeebullah and others (PLD 2003 SC 656) and Tauqeer Ahmed Khan v. Zaheer Ahmed Khan (2009 SCMR 420). Even the Supreme Court of India had clarified this issue on the same lines as was done in the above mentioned judgments rendered by this Court and in this respect a reference may be made to the case of Om Prakash v. State of Rajasthan and another (2012 SCMR 1400). The law is equally settled on the point that a delayed claim of juvenility advanced by an accused person is to be visited with an adverse inference against him and in this respect a reference may be made to the cases of Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others (PLD 2004 SC 758), Sarfraz alias Shaffa v. The State and 3 others (2007 SCMR 758), Muhammad Aslam and others v. The State and another (PLD 2009 SC 777) and Faisal Aleem v. The State (PLD 2010 SC 1080). In the case in hand the appellant had never claimed at any stage of the trial that he was a child, he had never agitated before the High Court that he was a juvenile and he had led no evidence before any court regarding his date of birth. Any belated attempt made by the appellant in that regard at this late stage may not be met with approval or acceptance. In these circumstances mere mentioning of the appellant’s age in his statement recorded under section 342, Cr.P.C. has not been found by us to be a conclusive determining factor regarding the actual age of the appellant for the purposes of declaring him a juvenile and, hence, immune from a sentence of death.
  1. The learned counsel for the appellant has also maintained that the appellant has already spent a long time in jail in connection with this case and, thus, on the basis of some judgments handed down by this Court, particularly in the cases of Hassan and others v. The State and others (PLD 2013 SC 793), Dilawar Hussain v. The State (2013 SCMR 1582), Ghulam Mohy-ud-­Din alias Haji Babu and others v. The State (2014 SCMR 1034) and Haji Muhammad alias Jhoora v. The State (PLD 2014 SC 322), the sentences of death passed against the appellant may be reduced to those of imprisonment for life. We note that a Larger Bench of this Court has already clarified in the case of Khalid Iqbal v. Mirza Khan and another (Criminal Review Petition No. 76 of 2008 decided on 26-11-2014) (PLD 2015 SC 50) that this ground is not sufficient all by itself to convert a sentence of death into that of imprisonment for life but it can only be considered as one of the circumstances which, in a given case, may persuade a court to reduce a convict’s sentence from death to imprisonment for life if there arc some other mitigating circumstances also available in the case. In the present case the appellant had acted cruelly and brutally and what he had done was in furtherance of sectarian hostility. He had repeatedly fired at and killed two persons belonging to the opposite religious sect and had demonstrated extreme desperation which factors detract from any sympathy to be evoked in favour of the appellant in the matter of his sentence and, thus, his mere spending a long time awaiting execution of the sentences of death has not been found by us to be a valid basis for reduction of his sentences from death to imprisonment for life on that score alone.
  1. We may observe in the end that the learned counsel for the appellant has also maintained before us that that the case in hand was not triable by a Special Court or an Anti-Terrorism Court but we note that this objection was never raised before the learned trial court or before the High Court and leave to appeal had also not been granted by this Court on that ground. Apart from that a hand-grenade had been recovered from the appellant’s custody which he was carrying for commission of the offences in issue and possession of such explosive substance surely attracted the jurisdiction of a Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 to try the case in hand. Sectarian killings are also included in the definition of `terrorism’ contained in section 6 of the Anti-Terrorism Act, 1997 and, thus, an Anti-Terrorism Court was also possessed of the requisite jurisdiction to try the present case. It may also be pertinent to mention here that no prejudice has been shown to have been caused to the appellant by his trial by a Special Court and this ground urged by the learned counsel for the appellant has, therefore, not been found by us to be worthy of any serious consideration.
  1. For what has been discussed above this appeal is dismissed with the modification that the sentences of fine passed against the appellant shall be treated as orders qua payment of compensation by the appellant to the heirs of each deceased under section 544-A, Cr.P.C, and in default of payment whereof the appellant shall undergo simple imprisonment for six months on each count.

MWA/M-3/SC                                                                                    Order accordingly.