Tahir vs State

HCJD/C-21

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Murder Reference No. 228 of 2008 Criminal Appeal No. 181-J of 2008 Tahir alias Tahri Versus State

JUDGMENT

Date of Hearing: 18.09.2014 Appellant by: Mr. Muhammad Iqbal Bhatti, Advocate.

Complainant by: Mian Muhammad Sikandar Hayat, Advocate. State by: Ch. Muhammad Mustafa, Deputy Prosecutor General.

Syed Shahbaz Ali Rizvi, J:- The appellant namely Tahir alias Tahri was tried in a case F.I.R. No.165 dated 06.7.1991, for offences under Sections 302/148/149/109/404/379/411 P.P.C. registered at Police Station Rabwa (Chenab Nagar), Tehsil Chiniot, Distt. Jhang and convicted by the learned Addl. Sessions Judge, Jhang, under Section 302(b) P.P.C., vide impugned judgment dated 03.09.2008 and sentenced as under: -

i)Death u/s 302-b/149 PPC on FIVE COUNTS for the murder of five persons namely Muhammad Sarfraz, Musarrat Abbas, Khizar Hayat, Ahmad Ali and Zahoor Ahmad (deceased) with compensation to the tune of Rs.100,000/-each u/s 544-A, Cr.P.C to be paid to the legal heirs of the deceased and in default thereof, to further undergo two years SI.

The appellant was ordered to be hanged by his neck till his death.

ii)Two years RI u/s 148 PPC.

2.Through this single judgment, we incline to decide Murder Reference No.228 of 2008 forwarded by the learned trial Court under Section 374 Cr.P.C. for confirmation or otherwise of the

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sentence of the convict Tahir alias Tahri along with Criminal Appeal No.181-J of 2008 filed by the appellant.

3.The facts in brief, as unfolded in the FIR Ex.PQ, lodged by Liaqat Ali (PW.2) are that he was resident of village Wallay, P.S Barrana, having blood-feud with Muhammad Yar. On the fateful day, he along with Sher Muhammad (PW.3), Khizar Hayat and Haji Usman, in Car No.897/LEO while Haji Muhammad Sarfraz (deceased) with Musarrat Abbas (deceased), Khizar Hayat (deceased), Ahmad Ali (deceased) in Car No.4141/SLC, being driven by Zahoor Ahmad (deceased), were returning after attending the Court hearing at Chiniot. The car of his father was ahead and the moment, they reached at about 9:30 a.m. near Nalka Adda Rabwa opposite Alf Mohallah, a Car, white coloured Toyota Corrola, rashly crossed their vehicle and while crossing the Car No.4141/SLC, inflicted a burst at Zahoor Ahmad driver, resulting in destroying his right eye who could not keep control over the vehicle, which stopped alongside the road on left side. From the car without number, Muhammad Yar (co accused), Tahir alias Tahri (present appellant), Barkhurdar (since P.O), Zafar, (both co accused), all armed with Kalashnikovs and co accused Yaara armed with mouser, alighted and came at the rear side of his father’s car. Muhammad Yar, fired at his father hitting him on the back side of his head due to which his father got severely injured; second burst was fired by the appellant Tahir at his brother Musarrat Abbas, sitting on the left side of rear seat, hitting him on the back side of his head; Zafar made a burst hitting Khizar Hayat on his belly; Barkhurdar fired with his Kalashnikov hitting Zahoor Ahmad on the left side of his head; Yaara fired with his mouser, hitting Ahmad Ali Maachhi on his neck; thereafter the accused persons, while encircling the vehicle, made indiscriminate firing, severely hitting the persons of Haji Muhammad Sarfraz, Musarrat Abbas, Khizar Hayat, Zahoor Ahmad and Ahmad Ali and the car was also damaged. Hearing the report of firing, many male

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persons attracted to the spot; the complainant and his other companions did not dare to step forward out of fear. Tahir picked up licensed gun of his (complainant) father and all the accused persons, while firing, went in their vehicle towards Sargodha Road. Besides the complainant, the occurrence was witnessed by Sher Muhammad (PW.3), Muhammad Khalid and Khizar Hayat. It was further alleged by the complainant that the occurrence was committed at the abetment of Zahoor Ahmad Advocate, Ahmad Bashir alias Shera son of Ahmad Hayat, Ahmad son of Ameer and Manzoor Hussain. The motive behind the occurrence, as mentioned in the FIR, was previous blood enmity between the parties.

4.After the occurrence, the investigation of the case was conducted by Younis Ali, Sub-Inspector (Retd.) (PW.12) who deposed that on 6.7.1991, Liaqat Ali complainant came in the Police Station at about 10 a.m. and made statement and he chalked out FIR Ex.PQ; thereafter he visited the place of occurrence; inspected the spot, prepared injury statement of Haji Muhammad Sarfraz Ex.PB, inquest report Ex.PC; injury statement of Musarrat Abbas Ex.PE and inquest report Ex.PF; injury statement of Khizar Hayat Ex.PH, inquest report Ex.PJ; injury statement of Zahoor Ahmad Ex.PL and inquest report Ex.PM; injury statement of Ahmad Ali Ex.PO and inquest report Ex.PP; prepared un-scaled site plan Ex.PY; collected 98 crime empties P.1/1-98, two crime empties of mouser P.2/1-2 and took into possession vide memo Ex.PR; also recovered five pieces of mat vide memo Ex.PS/1-5; took into possession Car No.4141/SLC vide memo Ex.PT; prepared 13 photographs P.21/1-13 of the place of occurrence and took into possession vide memo Ex.PZ; recorded statements of the PWs; after post mortem examination on the dead bodies, took into possession the last worn clothes of the deceased persons vide memo Ex.PX; handed over the whole case property to the Moharrar of Police Station for safe custody in the Malkhana and for onward transmission to the office of Forensic Science

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Laboratory; thereafter on 9.7.1991 got prepared scaled site plan of the place of occurrence Ex.PAA and Ex.PAA/1 through draftsman Abid Sherazi (PW.13). On 02.09.1991, he arrested the appellant Tahir Ahmad; recovered and took into possession Kalashnikov P.3 along with 15 live bullets P.4/1-15 from the appellant vide memo Ex.PU; arrested Ahmed Sher co accused and recovered Puppish gun P.22 along with 18 live bullets P.23/1-18; also recovered rifle 7mm P.5 from the possession of the appellant, belonging to the deceased Sarfraz with three live bullets P.6/1-3, took the same into possession vide memo Ex.PW; recorded statements of the PWs u/s 161 Cr.P.C; he also arrested co accused Muhammad Yar, Zafar, Allah Yar alias Yara, Muhammad Yaqoob on 7.10.1991 and on 28.8.91 arrested Mian Ahmad, Manzoor Ahmad and Ahmad Sher; on 29.11.1991 arrested Muhammad Hayat, Khizar Hayat and Ahmad alias Ahmad Yar.

5.On completion of the investigation, the challan was submitted in the Special Court, constituted under The Suppression of Terrorist Activities(Special Courts), Act 1975, Rawalpindi Division against the appellant and his co accused persons namely Muhammad Yar, Barkhurdar, Zafar and Yaara. The present appellant along with Barkhurdar (since P.O) were proceeded against under section 512 Cr.P.C and tried by the same learned court in absentia along with co accused, which resulted into the conviction and sentence of death on five counts to all the above mentioned accused vide judgment dated 13.09.1993. Muhammad Yar, Zafar and Yaara, Co accused of the appellant, challenged the judgment before the High Court but the conviction and sentence was maintained and same became the fate before the Hon'ble Supreme Court of Pakistan and as mentioned by the learned counsel for the appellant, the sentence has been executed. The appellant was firstly arrested on 02.09.1991 but he escaped from the judicial custody on 16.06.1992 and then again was arrested on 03.08.2000 and he challenged his conviction and sentence, passed in

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his absence by the learned trial court vide judgment dated 13.09.1993, through writ petition No.3531/2001 before the High Court, Rawalpindi Bench, Rawalpindi, which was set aside vide judgment dated 04.07.2002 and resultantly the appellant was tried by the learned Addl. Sessions Judge, Jhang.

6.The prosecution in order to prove its case, produced as many as fourteen (14) witnesses. Dr. Muhammad Sharif, (PW-1) conducted the postmortem examination of all the five deceased persons on 06.07.1991 and observed the following injuries:-

MUHAMMAD SARFRAZ (DECEASED):

i. A lacerated wound 23 x 17 cm on back and top of the skull. Skull was broken into pieces. Brain matter was coming out.

ii. A grazing wound of 17 x 06 cm into muscle deep on front of right side of chest.

iii. A grazing wound 3 x 1 cm into skin deep on front of left chest near left nipple.

iv. Six entrance wounds of 1⁄2 cm x 0.75 cm each an area of 14 cm x 7 cm on outer side of left chest. v. An entrance wound 3 cm x 1.5 cm on front of lower part of left abdomen.

vi. An entrance wound 2 x 1 cm on outer side of left flank.

vii. Four lacerated wounds of 1.5 cm x 1 cm each on an area of 7 x 5 cm on outer side of left chest. These were entry wounds.

viii. A lacerated wound 1 x 1 1⁄2 cm on front aspect of right axilla.

ix. Six rounded wounds each of 1/5 cm x 1 cm in an area of 13 cm x 11.5 cm on medial side of right upper arm and mid axillary line. These were entry wounds.

x. A lacerated wound of 3 cm x 2 cm on back of right upper arm (entry wound). There was a corresponding of 4 cm x 2.5 cm on inner side of right upper arm. There was fracture of right humerous.

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xi. A lacerated wound 14 x 12 cm on back of right elbow. The muscles were shattered. The joint was broken into pieces.

xii. A grazing wound 3 cm x 1.5 cm muscle deep on later part of right forearm.

xiii. An entry wound 2.5 cm x 2 cm on outer side of forearm 4 cm below injury No.12. There was an exit wound 3 cm x 3 cm on inner side of forearm. xiv. An entry wound 8 cm x 7.5 cm on medial side of left knee joint. Bone was broken. There was corresponding exit wound 6 cm x 5.5 cm outer part of left knee.

xv. A grazing wound 4 cm x 2 cm muscle deep on front of lower part of right thigh.

xvi. An entry wound 1 1⁄2 cm x 1 cm on back of left chest below lower angle of left scapula. There was a corresponding exit wound 3 cm x 2 cm on back of left chest 6 cm outer to entrance wound. xvii. A grazing wound 7 cm x 3 cm on the back of left flank.

OPINION

The doctor was of the opinion that the cause of the death was injury to brain and internal haemorrhage in chest and abdominal cavity leading to shock and death. Injury No.1,4 and 5 and 5 to 9 were sufficient to cause death individually and collectively in ordinary course of nature. These injuries were dangerous while injuries No.10, 11 and 14 were grievous in nature. Remaining injuries were declared as simple in ordinary course of nature, all the injuries were by firearm and ante mortem.

The probable time that elapsed between injury and death was immediate and between death and post mortem was within 2 to 6 hours. Ex.PA was the correct carbon copy of post mortem report and its diagram was Ex.PA/1.

MUSARRAT ABBAS (DECEASED):

i. A lacerated wound 10 x 4 cm on left side of skull. Skull was broken into pieces. Brain matter came out. ii. A lacerated wound 1 1⁄2 cm x 1 cm on front of left chest. It was an entry wound.

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iii. An exit wound of 2 cm x 1 1⁄2 cm in left axilla. iv. 13 lacerated wounds of 1 1⁄2 cm x 1 cm each in an area of 22 cm x 17 cm on front and outer part of left chest and upper abdomen (an entry wound).

v. A lacerated wound 5 cm x 4 cm on front of abdomen on left side surrounded by 7 wound 1 cm x 0.75 cm each in an area of 12 cm x 10 cm. It was an entry wound. vi. Five lacerated wounds 1 cm x 1⁄2 cm each in an area of 11 cm x 5 1⁄2 cm on front of right side of abdomen. (an entry wound).

vii. A lacerated wound of entry 4 cm x 2 cm on outer side of right shoulder. (entry wound). There was a corresponding exit wound 7 cm x 3 1⁄2 cm on entro medial side of right shoulder.

viii. A lacerated wound 2 cm x 1 1⁄2 cm on an area of 08 cm x 6 cm on right axila. It was an entry wound.

ix. A lacerated wound 4 cm x 3 1⁄2 cm on right side of chest on front side (an entry wound).

x. A lacerated wound of entrance 1 1⁄2 cm x 1 cm on back of right upper arm. There was an exit wound of 3 1⁄2 cm x 3 cm on inner side of right upper arm.

xi. An entrance of 8 cm x 6 cm on back of right forearm with exit 9 x 6 1⁄2 cm on front of right forearm. xii. Seven grazing wounds 3 cm x 2 cm in each in an area of 11 cm x 7 cm on back of right wrist joint.

xiii. A lacerated wound of entry 4 cm x 2 cm on back of right hand.

xiv. There was a corresponding wound 5 cm x 2 1⁄2 cm on right palm. (exit wound).

xv. A lacerated wound 6 cm x 5 cm outer side of left upper arm (entry wound). There was a corresponding exit wound 12 cm x 9 cm on medial side of left upper arm. Left humerous was broken.

xvi. A grazing wound 2 cm x 1 cm muscle deep on left iliac crest.

xvii. A lacerated wound 2 cm x 1 cm on upper side of right knee (an entry wound). This communicated with a lacerated wound of 3 cm x 1 1⁄2 cm on the medial side of right knee. The bone of the joint was broken.

OPINION

The doctor was of the opinion that the cause of the death was injury to brain and internal haemorrhage in chest and abdominal cavity leading to shock and death. Injury No.1,2 ,4, 5,6 were

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sufficient to cause death individually and collectively in ordinary course of nature. All the injuries were by firearm and ante mortem. The probable time that elapsed between injury and death was immediate and between death and post mortem was within 4 to 7 hours. Ex.PD was the correct carbon copy of post mortem report and its diagram was Ex.PD/1.

KHIZAR HAYAT (DECEASED):

i. A lacerated wound 2 1⁄2 cm x 2 cm on front of center of abdomen. It was an entry wound.

ii. Two lacerated wounds of 2 cm x 1 cm, 3 x 1 cm outer side of left chest (an entry wound).

iii. Two exit wounds 3 cm x 2 cm; 3 cm x 1 1⁄2 cm close to each other on outer side of right chest.

iv. Four lacerated wounds of 2 cm x 1 cm each in an area of 20 cm x 11 cm on front of left side of abdomen. It was an entry wound.

v. Six lacerated wounds of entry of 3 cm x 1 1⁄2 cm, 1 1⁄2 cm x 1 cm each of rest an area of 12 cm x 10 cm front side of abdomen, which was an entry wound.

vi. A grazing wound 11 cm x 4 cm muscle deep on back of right forearm.

vii. A lacerated wound of entry 8 cm x 7 cm on outer side of right thigh with an exit wound of 7cm x 6 1⁄2 cm on medial side of right thigh.

viii. Four grazing wound 6 cm x 3 cm, 5 cm x 3 cm, 2 cm x 7 cm, 1 cm x 4 cm in an area of 24 cm x 13 cm on front of left thigh.

ix. A grazing wound 14 cm x 8 cm on medial side of left leg. x. A lacerated wound 6 cm x 4 cm on medial side of left leg rear ankle joint, (an entrance wound with an exit wound of 8 cm x 5 cm on outer side of left leg. Both left tibia and fibula were fractured.

xi. A grazing wound of 4 cm x 2 cm muscle deep on back of left chest.

OPINION

The doctor was of the opinion that the cause of the death was internal haemorrhage of chest and abdominal cavity leading to shock and death. Injuries No.2, 4 and 5 were sufficient to cause death individually and collectively in ordinary course of nature. All the injuries were by firearm and ante mortem.

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The probable time that elapsed between injury and death was immediate and between death and post mortem was within 5 to 9 hours. Ex.PG was the correct carbon copy of post mortem report and its diagram was Ex.PG/1.

ZAHOOR (DECEASED):

i. Invagination of right eye ball with lacerated wound 4 cm x 3 cm around the eye ball. This fracture of surrounding bone.

ii. A lacerated wound 4 cm x 3 cm on left side of head 5 cm above left ear with fracture of skull. Brain matter was visible.

iii. A lacerated wound 2 cm x 1 1⁄2 cm on the left side of neck with destruction of the thyroid cartilage.

iv. A grazing wound of 1 1⁄2 cm x 1 cm on the right side of neck.

v. An entrance 1 cm x 1 cm on the right side of neck below injury No.4. There was a corresponding wound 2 cm x 1 cm on the back of right shoulder. (Exit wound). vi. An entry wound of 2 1⁄2 cm x 1 1⁄2 cm just below nipple of front of left chest. This communicated with an exit wound 2 1⁄2 cm x 2 cm at a distance of 3 cm on medial side of entrance wound.

vii. An entrance wound of 1 cm x 1 cm on the back of left chest. viii. A lacerated wound 4 cm x 2 1⁄2 cm in left axila (exit wound). ix. 4 lacerated wound 1 cm x 1 cm each on front side of right side of chest, entrance wound.

x. An entry wound of 1 1⁄4 cm x 1 cm on front of left shoulder. There was an exit wound of 2 cm x 1 cm on outer side of left shoulder. There was a fracture of left humerus. xi. A lacerated wound 2 cm x 1 1⁄2 cm on the outer part of left upper arm, which was an entry wound. There was an exit wound 3 cm x 2 cm on the inner side of left upper arm. xii. A lacerated wound 2 1⁄2 cm x 2 cm on back of right shoulder. (entry wound). There was a corresponding wound 3 cm x 2 cm on the medial side of right upper arm. xiii. A lacerated wound of 3 cm into 2 cm on the back of right elbow (entry wound) with exit wound 5 cm x 4 cm on front of left elbow.

xiv. An entrance wound 4 cm x 3 cm in front of right forearm with an exit wound of 3 1⁄2 cm x 3 cm on the back forearm. xv. An entry wound 4 cm x 2 cm on the back of right hand. xvi. A lacerated wound 4/5 cm x 2 cm on right palm. It was an exit wound.

xvii. An entry wound 6 cm x 4 cm on the medial side of right leg.

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xviii. An exit wound 20 cm x 4 1⁄2 cm on outer side of right leg, with fracture of right tibia.

xix. A grazing wound 7 cm x 5 cm on front part of hole of right foot with loss of tips of second and third toes.

OPINION

The doctor was of the opinion that the cause of the death in this case was due to injuries No.1,2,7 and 9. These injuries were sufficient to cause death individually and collectively in ordinary course of nature. Injuries No.1 and 2 injured the brain, whereas injuries No.7 and 9 had injured lung and heart leading to internal haemorrhage in chest cavity, shock and death. All the injuries were by firearm and ante mortem.

The probable time that elapsed between injury and death was immediate and between death and post mortem was within 6 to 12 hours. Ex.PK was the correct carbon copy of post mortem report and its diagram was Ex.PK/1 & PK/2.

AHMAD ALI (DECEASED):

i. A lacerated wound 1/5 cm x 1 cm on the left side of neck. The fourth cervical vertebrae were fractured (entry wound).

ii. An entry wound 5 cm x 4 cm on outer side of left lower part of left thigh. There was a corresponding wound of 10 cm x 8 cm on inner side of left thigh.

iii. A grazing wound of 3 cm x 2 cm x skin deep on the front of left ankle.

iv. A grazing wound 6 cm x 3 cm on front of right thigh upper part.

v. An entrance wound of 1 1⁄2 cm x 1 cm on medial side of right thigh. There was a corresponding wound with lacerated edge 3 1⁄2 cm x 2 cm on outer side of right thigh. vi. A grazing wound 4 cm x 3 cm muscle deep on medial side of right knee.

vii. An entry wound of 3 cm x 1 1⁄2 cm on back of right leg. There was a corresponding exit wound of 4 cm x 2 cm on front of right leg. The right fibula was fractured. viii. A grazing wound 2/5 cm x 1/5 cm skin deep below the left side of chin.

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OPINION

The doctor was of the opinion that the cause of the death in this case was stoppage of respiration due to crushing of phranic nerve with fracture of fourth cervical vertebrae caused by injury No.1, which was sufficient to cause death in ordinary course of nature. Injury No.7 was grievous, rest of the injuries were simple in nature. All the injuries were by firearm and ante mortem. The probable time that elapsed between injury and death was immediate and between death and post mortem was within 7 to 12 hours. Ex.PM was the correct carbon copy of post mortem report and its diagram was Ex.PM/1.

7.The prosecution through learned public prosecutor, gave up the PWs Muhammad Khalid, Khizar Hayat, Ghulam Shabir SI, Ahmad Riaz 611/C, Abdul Aziz, Muhammad Khan, Ameer, Lal, Khan Muhammad, Abdul Ghani, Mohsin, Rehman, Tanveer Ahmad, Dewan Ali Shah, Malik Muzaffar Abbas Sher, Umar Hayat, Feda Hussain, Shamman, Khizar Hayat, Muhammad Ali, Manzoor Ali and Wazir Ahmad, being unnecessary, PWs Riaz Hussain and Ahmad Yar being dead and by tendering into evidence the reports of Chemical Examiner Ex.PBB, Serologist Ex.PCC and that of Forensic Science Laboratory Ex.PDD, closed the prosecution evidence.

8.The statement of the appellant was recorded under Section 342 Cr.P.C., wherein he negated the allegations levelled against him and professed his innocence. In reply to the question “why the case against you and why the PWs deposed against you?”, the appellant replied as under:- “My father was employed as a Manager in a Bank. I am Graduate by myself. The deceased Sarfraz and his son were involved in murder cases of P.S Lalian. They asked me and my father to effect a compromise in the said murder cases. On his refusal, I had been falsely implicated in this false case so as to pressurize

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me to compel my relatives to effect a compromise with Sarfraz deceased and others.”

9.The appellant did not appear as his own witness to make statement on oath under Section 340 (2) Cr.P.C. to discard the allegations levelled against him, however, he produced in his defence some documents Ex.DH, Ex.DI, Ex.DJ and Mark “A” and closed his defence evidence.

10.After conclusion of trial the appellant was convicted and sentenced as mentioned above by the learned trial Court.

11.Learned counsel for the appellant, at the very outset, keeping in view the judgment passed by this Court and Hon'ble Supreme Court of Pakistan qua the co accused Muhammad Yar, Zafar and Yaara (since executed) without touching the merits of the case, contends that the sentence awarded to the appellant is harsh one and he deserves for mitigation on the ground that the appellant was of the age of about 21 years accompanying his father, maternal uncle of his father and cousin at the time of occurrence and was under their influence being the youngest member of the alleged unlawful assembly that is a valid ground for mitigation in his sentence; that the appellant was earlier awarded death sentence in absentia and the same was set aside by the order of this Court on 04.07.2002 passed in Writ Petition No.3531 of 2001; that the appellant is behind the bars since 03.08.2000 i.e. for a period of almost 14 calendar years and prayed for the commuting of sentence of the appellant from death to imprisonment for life following the principle of expectancy of life. Learned counsel for the appellant has relied upon the judgment titled “Liaqat Shah and others v. The State” (1985 SCMR 1415); Ballia and others v. The State (1985 SCMR 854); 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).

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12.On the other hand, the learned Law Officer assisted by the learned counsel for the complainant, contends that the person who killed five innocent persons in a brutal manner does not deserve for any mitigation especially when he had absconded from the custody; that 98 crime empties were recovered from the place of occurrence; that there were 72 entry wounds; that three co-accused of the appellant have already been hanged after confirmation of their death sentence by this Court and after dismissal of their petitions for leave to appeals by the Hon’ble Supreme Court of Pakistan vide judgment dated 12.10.1999; that so far as the law referred by the learned counsel for the appellant is concerned, every case has to be dealt with in view of its own facts and circumstances and that the appeal merits dismissal.

13.We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General as well as the learned counsel for the complainant and perused the record with their able assistance.

14.We have observed that the fateful occurrence took place on 6.7.1991 at 9:30 a.m. while the incident was reported to the police at 10:15 a.m. i.e within forty five minutes of the occurrence and similarly, autopsy on all the five dead bodies was conducted during 1:00 p.m to 6:15 p.m on the same day and this promptitude in reporting the matter and conducting of post mortem examination of the deceased persons rules out the possibility of consultation and deliberation for false implication of the appellant rather confirms the presence of Liaqat Ali PW.2 and Sher Muhammad PW.3 at the scene of occurrence. It is a daylight incident reported by the complainant with specific role to the appellant and his co accused persons. Both the PWs Liaqat Ali and Sher Muhammad remained consistent regarding their stance extended by them on the first day of the occurrence when their statements were recorded by the police u/s 154 and 161 Cr.P.C. Both the witnesses were examined after a lapse of fourteen years and were cross examined at a considerable length

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by the defence but nothing beneficial to the appellant could be derived from their statements. Liaqat Ali, admittedly, is closely related to the deceased persons being son of deceased Muhammad Sarfraz and brother of Musarrat Abbas having the inimical background against the appellant and his co accused person, being so, his testimony required independent corroboration for the safer administration of justice, which is provided by the evidence of Sher Muhammad PW.3 produced by the prosecution, who is not related to any of the deceased persons. Even otherwise, by now, it is also established proposition of law that the crucial test for accepting or rejecting a piece of evidence is its intrinsic worth and not really the source from which the same emanates. Reference is respectfully made to the case titled “Muhammad Ahmad (Mehmood Ahmed) and another v. The State” (2010 SCMR 660). Both the witnesses have also explained their reason for being available at the place of occurrence at the relevant time. The defence has produced Ex.D.O i.e. an order dated 27.6.1991, passed by the learned Addl. Sessions Judge, Chiniot, in absence of the deceased party, regarding the transfer of the case in connection with which, the deceased Muhammad Sarfraz etc had allegedly gone to Chiniot on the fateful day, according to which the case was sent back to the court of learned Sessions Judge, Jhang but at the same time, paragraph 3 of the same order clearly reflects that prior to passing of said order, the date of hearing was fixed before the learned Addl. Sessions Judge, Jhang as 6.7.1991, which is the date of incident of this case, in connection with which, the deceased persons were to appear before the court. In this view of the matter, we are of the confirm opinion that the statements of both the witnesses are confidence inspiring and trustworthy, which is fully corroborated by the medical evidence, furnished by PW.1 Dr. Muhammad Sharif, who conducted the post mortem examination of all the five deceased persons on the same day. According to his opinion, all the injuries available on the

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person of the deceased, were ante-mortem, caused by the firearm, resulting into their unnatural death.

15.So far as the evidence of recovery of rifle P.3 at the time of the arrest of the present appellant is concerned; we have noticed that at the time of first site inspection by the investigating officer of this case, 98 crime empties P.1/1-98 of rifle 7.62 mm bore i.e. Kalashnikov and 2 crime empties P.2/1-2 of pistol 30 bore were taken into possession vide memo Ex.PR, which were received by the office of Technical Service Punjab, Lahore on 03.08.1991 while after the arrest of the appellant on 02.09.1991, the crime weapon rifle P.3 was recovered from his possession along with 15 live bullets P.4/1- 15, which was taken into possession by the I.O vide memo Ex.PU, which was also received by the same office on 08.09.1991. The comparison of the said rifle P.3with 98 crime empties reflects that 69 crime empties matched with the rifle P.3, recovered from the appellant, so it reflects that at least 69 bullets were fired by the appellant at the time of occurrence. This piece of evidence provides strong corroboration to the ocular account against the present appellant.

16.As regards the motive part of the occurrence, we find that the blood feud between the parties is not only the case of the prosecution but during cross examination it has not been denied by the defence as well. Hence, the motive for commission of the occurrence is established.

17.The appellant after his arrest on 02.09.1991 escaped from the judicial custody on 19.6.1992 and remained absconder till 03.08.2000 which clearly reflects the guilty mind of the appellant and it also extends corroboration to the other pieces of evidence, as is held by the Apex Court in case titled “Haroon Rasheed and 6 others v. State and another” (PLJ 2006 Supreme Court 137). Keeping in view all above, we maintain the conviction of the

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appellant awarded to him by the learned trial court that is based upon proper appreciation of the evidence available on the record.

18.As far as argument of learned counsel for the appellant, raised for altering his sentence from death to imprisonment for life, is concerned; we have given our anxious consideration to the averments made by learned counsel for the appellant, learned law officer as well as learned counsel for the complainant and found that, by now, it is established proposition of law that each case is to be decided on the basis of its own facts and circumstances. We have gone through the complete evidence, available on the file as discussed above and also gone through the referred esteemed judgments one by one and observed that the August Court, in case titled “Liaqat Shah and others v. The State” (1985 SCMR 1415) has considered the young age and influence of elders for the mitigation in quantum of sentence but while coming to the same conclusion, the Hon’ble Court in paragraph 17 of the judgment has also considered the background of the incident and it was maintained that the appellants were provoked on the highhanded manner in which their sister was beaten and insulted but in the case in hand the circumstances are different as there was no such immediate provocation by any act of the deceased persons rather they were intercepted and assaulted by the appellant and his co accused on the highway and similarly the act of the appellant at the time of occurrence reflects that he played the vital role on his own as the report of comparison of the crime empties with the gun P.3, recovered from the possession of the appellant, clearly reflects that 69 out of 98 empties of rifle matched with the said gun, which shows that the appellant had performed in a brutal and reckless manner at the scene of occurrence as he at least made 69 fire shots with his rifle obviously by changing the magazines of the rifle repeatedly and there is nothing in the evidence, which could reflect that this reckless manner was being adopted by the appellant under the influence or

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direction of his elders at the place of occurrence, conversely, we are of the considered opinion that the manner in which he acted, reflects his desperate mentality and this act of the appellant portrays him as a leader of the team, not the follower despite his young age. Similarly, the circumstances, which persuaded the mind of the Hon’ble Judges in Ballia and others v. The State (1985 SCMR 854) were that the appellant did not play any leading role during the incident even being under the influence of his elders. So, in our view, in the circumstances of the case, brutal and reckless behaviour of the appellant does not entitle him for any mitigation in quantum of sentence as it is evident that he did not act under the influence of his elders rather played the role of captain. Even otherwise, the record reveals that the Hon’ble Apex Court has already refused any such relief to the co accused Zafar (since executed) who was also accompanying his elders i.e co accused Muhammad Yar, his paternal uncle and Barkhurdar, maternal uncle of his father while refusing CPLA No.153/1997 on 12.10.1999.

19.Now, coming to the other extenuating circumstance, argued by the learned counsel for the appellant, we have observed that the undergone period of the appellant was not the only consideration for mitigation with regard to the quantum of sentence of the appellant in the referred esteemed case law. The circumstances of the referred case titled Dilawar Hussain v. The State (2013 SCMR 1582), are also distinguishable from the case in hand as in paragraph 11 of the said judgment, the Hon’ble Court has given weight to the circumstances as under: - “...In the instant case the petitioner is being incarcerated in the death cell for the last 17 years, one month and five days and by efflux of time he has also earned remissions for 18 years, eight months and ten days. Keeping in view the aforesaid extenuating circumstances to the effect that the petitioner did not

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repeat the fire, chose lower part of the body, petitioner and deceased being closely related to each other, incident took place on some abrupt altercation between them ...” (Underlining is ours).

Similar observation by the Hon'ble Supreme Court of Pakistan is expressed in the referred case titled “Hassan and others v. The State and others” (PLD 2013 Supreme Court 793) wherein the Court has held as under: - “...Upon the analogy of sections 497, 426 and 382-B, Cr.P.C noted above the legislative intent may lean in favour of extending some relief to the appellants placed in such a predicament which is not of their own making and the least that this Court can do for them in such an unfortunate situation is to exercise its discretion in the matter of their sentences by reducing their sentences of death to imprisonment for life on the basis of the facts and circumstances of the case detailed above and also on the basis of the principle of expectancy of life...”.(Underlining is ours). The Honorable Court had discussed the referred facts and circumstances of the case in paragraph No.12 and 13 of the same judgment wherein the perusal of the same makes it clear that the Honorable Court has narrated the following mitigating circumstances: -

i)the complainant party came to the scene of occurrence where the accused party was already present;

ii)it was not the premeditated occurrence on the part of the accused i.e. appellants;

iii)it was a case of cross firing;

iv)two of the appellants had not caused any injury to one of the deceased; and

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v)only single fire was attributed to two of the appellants.

Similarly, the period of detention, which really influenced the mind of the Honourable Court was the twenty two years’ detention of the appellant in death cell.

The above view reflects that the duration of the undergone period of the accused was not the only consideration before the August Court rather the circumstances of the case were also considered while following the principle of expectancy of life.

20.It is also held by the Hon’ble Apex Court in case titled Ghulam Mohy-ud-Din alias Haji Babu and others v. the State (2014 SCMR 1034) in its paragraph 26 has held as under: - “...Majority view is in favour of reduction of sentence while in some rare cases contrary view has been taken by this Court and that too where cruelty or brutality was the attending element in committing the murder or where element of terrorism was visible or proved in perpetrating the crime. Thus, the view held in Dilawar Hussain’s case (ibid) being very close and nearer to judicial reasons, must prevail and shall hold the field, particularly in the circumstances of the present case.” (underlining is ours).

The underlined part of the paragraph clearly reflects that the circumstances of the case also weighed with the Hon’ble Court while appreciating the principle of expectancy of life.

21.We are also fortified in our view by the esteemed judgment passed by the Hon’ble Apex Court in case titled “Haji Muhammad alias Jhoora v. The State” (PLD 2014 Supreme Court 322) wherein the Hon’ble Court refused the reduction of the sentence from death to imprisonment for life of the appellant after discussing Dilawar Hussain’s case ibid and has observed in paragraph 12 of the judgment as under: -

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“12. Viewed from what has been held in the aforesaid judgment, the appellant in the instant case has not undergone the sentence of imprisonment for life. The appellant in the case in hand has only served out twelve years in jail, as such, his case does not at all fall in the category of cases wherein this Court help him out in reduction of death sentence to imprisonment for life. Even otherwise, simpliciter factum of reduction in the sentence is not serving out the sentence by the appellant alone rather other factors are also to be kept in view while converting normal penalty of death into imprisonment for life in such like cases. This case is distinguishable from the facts and circumstances of the above referred cases and the principles laid down therein. In the referred cases, the appellants not only remained incarcerated in jail for a quite sufficient long time equal to imprisonment for life but there were extenuating circumstances which also weighed with this Court for reduction of their sentences from death to imprisonment for life. In the instant case there are no such mitigating circumstances which could help out the appellant for reducing his sentence. In the case in hand the appellant had caused death of an innocent person in a reckless manner while firing at the vital parts of his body leaving no chance for his survival...In the facts and circumstances of the instant case, it is established that the appellant committed heinous offence after making preparation, as such, the argument of the learned counsel for the appellant has no force at all in the absence of any mitigating circumstance for reduction of his sentence from death to imprisonment for life.” (The underlining is ours).

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22.Likewise, in case titled “Hamid Mahmood and another v. the State” (2013 SCMR 1314) the Hon’ble Court has held as under: - “The irresistible conclusion that is drawn from the above discussion is that the period of time already served by a convict under a sentence of death is certainly one of the numerous factors to be taken into account, while confirming the death sentence but it is neither the only or the decisive consideration.” While in paragraph 25 of the same judgment, it has been held as under: - “In the facts and circumstances of the case, the considerations pertaining to quantum of sentence, have been examined. The reasons for the award of the death penalty far out weight the considerations for the award of lesser sentence. The tender age of the minor, the brutal and heinous nature of the crime and pre- meditation persuades us to agree with the sentence awarded by the learned trial Court as well as the learned High Court. The deterrent aspect of the sentence cannot be lost sight of either as it was a crime of kidnapping for ransom of minor, followed by murder. In such an eventuality, the normal sentence of death should be awarded and the Court should neither hesitate nor search for laboured pretexts to award a lesser sentence, as has been held by this Court, in the case, reported as Muhammad Sharif (Supra).”

Even otherwise, it is a case of conviction of the appellant under five counts.

So, seeking light from the supra referred judgments, we are of the firm view that in the instant case no mitigating or

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extenuating circumstances in favour of the appellant to help him out are available as his period of incarceration in death cell is only about six years while his total period of detention is about fourteen years, he did not act under the influence of his elders, though he was accompanied by them, as is evident from the role of firing sixty nine bullets during the occurrence causing injuries to the five deceased on the vital parts of their body reflecting brutality and recklessness on his part after making preparation without any immediate provocation and besides all that, after his arrest, he escaped from the judicial custody and remained absconder for a period of more than eight long years, which further disentitles him for the craved relief. In this regard, reference is respectfully made to the case titled “Mandoos Khan v. The State” (2003 SCMR 884) wherein the Honourable Court was pleased to hold as under: - “...It is pertinent to mention here that after commission of the incident appellant made his escape good and declared proclaimed offender. On this score as well he is not entitled to any leniency in the quantum of sentence.”

23.For what has been discussed above, we have come to an irresistible and unavoidable conclusion that the prosecution remained successful to prove that the appellant has proceeded in the commission of awful occurrence of murder of five persons in a reckless and brutal manner, which disentitles him for the grant of any mitigation in his sentence awarded by the learned trial court, which only can meet the ends of justice in the circumstances of the case. This appeal No.181-J of 2008 stands dismissed.

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The Murder Reference No.228 of 2008 is answered in the AFFIRMATIVE and the death sentence awarded to the appellant Tahir alias Tahri is confirmed.

(Muhammad Anwaarul Haq) (Syed Shahbaz Ali Rizvi) Judge Judge

Approved for reporting.

Judge Judge

Rafaqat Ali