P L D 2012 Balochistan 22
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
GUL MUHAMMAD ---Appellant
Versus
THE STATE ---Respondent
A.T.A. Criminal Appeal No.6 of 2007 and A.T.A. Murder Reference No.1 of 2007,
decided on 29th September, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Anti-Terrorism Act (XXVII of 1997), S.7(a) ---Qatl-e-amd and act of
terro rism---Appreciation of evidence ---Both the witnesses though were closely related to
each other as well as to the deceased persons, but relationship by itself was not sufficient
to brush aside their evidence when they had fully supported the prosecution ver sion and
the defence had failed to create any dent in their veracity ---Said witnesses were residents
of the same village and their presence at the time and place of occurrence, could not be
doubted by any degree of seriousness ---Accused and the p rosecution witnesses being
related and known to each other and it being a case of sole accused, neither any question
of mistaken identification nor substitution, would arise ---Evidence of prosecution
witnesses did not suffer from any material contradiction or discrepancy and was
consistent with the probabilities, materially fitting in with other evidence; more
particularly the medical evidence and supported by the recovery of crime weapon from
possession of accused and positive report of Firearm Expert ---Complainant was declared
hostile by the prosecution to the extent of not identifying of accused before the court, but
it was of no significance, as parties had entered into compromise, which was also
admitted before the Trial Court ---Positive report of Firea rm Expert had corroborated the
ocular evidence furnished by prosecution witnesses ---Prosecution, in circumstances had
succeeded to prove its case against accused beyond the shadow of doubt.
(b) Anti -Terrorism Act (XXVII of 1997) ---
----Preamble & S.6( 2)(g) ---Penal Code (XLV of 1860), S.302(b) ---Qatl-e-Amd ---
"Terrorism" ---Allegation of "Siyahkari" ---Jurisdiction of Anti -Terrorism Court ---Any
offence, where the offender would take the law in his own hands and awards punishment,
that offence would fall wi thin the purview of Anti -Terrorism Act, 1997 ---Venue of the
commission of a crime, the time of occurrence, the motive and the fact that whether or not
said crime had been witnessed by public at large, were not the only determining factors
for deciding the issue, whether a case did or did not fall within the parameters of Anti -
Terrorism Act, 1997 ---Crucial question would be whether said crime had or had not the
effect of striking terror or creating a sense of fear and insecurity in the people or any
section of the people ---Accused, in the present case, had committed the murder of three
innocent people on the false allegation of 'Siyahkari', while taking the law in his own
hands, such act certainly would have created a sense of fear, panic and terror amongst t he
villagers ---No licence could be granted to anyone to take the law of the land in his own
hands and start executing the culprits himself, instead of taking them to the court of law --
-Murder based on "Ghairat" did not furnish a valid mitigating circumstan ce for awarding
a lesser sentence ---Killing of innocent people, specially the women on to pretext of
'Siyahkari' was un -Islamic, illegal and unconstitutional ---Under S.6(2)(g) of Anti -
Terrorism Act, 1997, in case of unjustified murder by a person, who on account of his
immorality or to satisfy his brutal instinct, would take the law in his own hands, was
responsible for creating sensation and panic in the society ---Offences committed on the
pretext of 'Siyahkari' would fall within the domain of Anti -Terror ism Act, 1997, and all
the cases pending before the ordinary courts would stand transferred to the Anti -
Terrorism Courts.
Holy Quran Sura XXIV (NUUR) Verses 4; Hadith 837 Book 48 (Sahih Bukhari)
and PLD 2001 SC 96 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 311 ---Anti-Terrorism Act (XXVII of 1997), Preamble & Ss.6(2)(g), 7(a) -
--Criminal Procedure Code (V of 1898), S.345 ---Qatl-e-amd---Tazir after waiver or
compounding of right of qisas in qatl -e-amd---Anti-Terrorism Act, 1997 was e nacted for
prevention of terrorism, sectarian violence and speedy trial of heinous offences -Said Act
being a special law, private complainant or the legal heirs of the deceased, had no right to
compound the "scheduled offence" as those offences were mainly against the State and
not against individuals ---Offences could not be compounded automatically by legal heirs,
but were always through the court; and the court could decline the permission to
compromise the offence by the legal heirs of victim ---Even the ordinary courts under
S.311, P.P.C., could punish accused, if the offence had been compounded, by the
legal heirs, on the basis of "Fasad -Fil-Arz" ---Not providing the right to compromise the
offence by the legal heirs of deceased, was ne ither violation of Islamic Injunctions;
nor of any fundamental rights.
Farzand Ali Mengal for Appellant (in A.T.A. Crl. Appeal No.6 of 2007).
Nasir Marri for the Complainant (in A.T.A. Crl. Appeal No.6 of 2007).
Anwar -ul-Haq Ch. for the State (in A.T.A . Crl. Appeal No.6 of 2007).
Anwar -ul-Haq Ch. for the State (in A.T.A. Murder Reference No.1 of 2007).
Nasir Marri for the Complainant (in A.T.A. Murder Reference No.1 of 2007).
Farzand Ali Mengal for the Respondent (in A.T.A. Murder Reference No.1 of
2007).
Date of hearing: 22nd September, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Special Judge, Anti
Terrorism Court, Sibi Naseerabad Division Sibi at Dera Murad Jamali, vide judgement
dated 22 -1-2007 has convicted and sentenced appellant G ul Muhammad under section
302(b) of the P.P.C. read with section 7(a) of the Anti Terrorism Act, 1997 to death (three
count) as ta'zir with direction to pay compensation of Rs.100,000/ - to the legal heirs of
each deceased as provided under section 544 -A of the Cr.P.C., in default whereof to
further undergo R.I. for six months. The appellant preferred Criminal Appeal No.(S)06 of
2007 for his acquittal, while the Special Judge has sent Murder Reference No.(S)01 of
2007 for confirmation of the sentence of deat h or otherwise. Since common question of
law and facts is involved, therefore, both the matters are being disposed of by means of
this common judgment.
2. Complainant Alan son of Ghulam Muhammad, in his report dated 11 -3-2004, alleged
that about 4/5 months back, Gul Muhammad, who happens to be the husband of his daughter,
namely, Momil, made allegation of siyahkari upon his wife and intended to commit her
murder, therefore, he did not hand over the custody of his daughter to him. Last night at about
3-00 a. m., his son Imdad Ali was sleeping along with him (complainant), when Gul
Muhammad called him, at which his son Imdad Ali accompanied him to his house. After
about 2/3 minutes, on hearing fire reports, when the complainant came out of the house, he
saw tha t accused Gul Muhammad made firing upon his son Imdad Ali and murdered him.
The complainant further alleged that, thereafter, the accused, hurriedly, went to the house of
his aunt, where he committed the murder of Mst. Manzooran daughter of Muhammad Hassan
and his brothbr Bashir Ahmed, aged about 6/7 years, by means of firing. The complainant
also alleged that since he, along with Amanullah and Muhammad Ramzan, was empty
handed, therefore, the accused ran away from the crime scene. The motive behind the
incident was alleged to be the refusal of complainant to hand over the custody of Mst. Momil
to the accused. Consequently, a case vide. Crime No.34 of 2004, under section 302 of the
P.P.C., was registered at Police Station, Usta Muhammad.
3. After registrat ion of the F.I.R., the investigation of the case was entrusted to P.W.8 Sher
Nawaz, S i , who visited the place of occurrence situated at Goth Rasool Bakhsh, prepared
site sketch Exh.P/8 -A on the pointation of the complainant and also prepared site inspectio n
memo Exh.P/2 -A, collected six empties of TT pistol vide memo Exh.P/2 -F, secured blood -
stained earth etc. of the deceased persons vide memos Exh.P/2 -B, Exh.P/2 -C and Exh.P/2 -D,
sent the dead bodies of the deceased to Civil Hospital .for postmortem examina tion and
report, prepared inquest reports Exh.P/8 -B, Exh. P/8 -C and Exh.P/8 - D. Thereafter, he went
to Civil Hospital, where after postmortem examination, the dead bodies were released to the
heirs. On 12 -3-2004, he went to Goth Rasool Bakhsh, where the bl ood-stained clothes of the
deceased persons were handed over to him, which were taken into possession vide memos
Exh.P/2 -F to Exh.P/2 -H and he recorded the statements of P.Ws. On 13 -3-2004, he arrested
accused Gul Muhammad,. from whose possession a TT pist ol, along with two live cartridges,
was recovered, which was seized vide memo Exh.P/4 -B. The accused also made disclosure,
at which disclosure memo Exh.P/4 -A was prepared. On receiving FSL report Exh.P/8 -E, he
prepared incomplete challan Exh. P/8 -F He also received report of firearm expert Exh. P/8 -K
and prepared ehallans Exh.P/8 -G, Exh. P/8 -H and Exh.P/8 -I
4. On the stated allegation, a formal charge was framed and read over to the appellant, to
which he pleaded not guilty and claimed trial. The prosecut ion, in order to substantiate the
accusation, produced eight witnesses. P. W.1 Dr. Shah Bakhsh, Medical Officer, conducted
postmortem examination of deceased Imdad Ali and Shabir Ahmed and issued postmortem
examination reports Exh.P/1 -A and Exh.P/1 -B. PW -2 Deedar Hussain, constable, is witness
to the site inspection memo Exh.P/2 -A, securing of blood -stained ariicles vide memos
Exh.P/2 -B, Exh.P/2 -C, Exh.P/2 -D, collection of 7 empties vide memo Exh.P/2 -E and
recovery witness of blood -stained clothes of deceas ed persons vide memos Exh.P/2 -F,
Exh.P/2 -G and Exh.P/2 -H. P.W.3 Alan is complainant of the case, who produced F.I.R.
Exh.P/3 -A and receipt Exh.P/3 -B regarding receiving of the dead body of deceased Imdad
Ali. P.W.4 Muhammad Hanif, constable, is witness to the alleged disclosure of the accused
and recovery of a TT pistol 30 bore on his pointation from his house. He produced disclosure
memo Exh.P/4 -A and recovery memo Exh.P/4 -B of the recovered TT pistol. P.W.5 Amanullah
is an eyewitness of the occurrence, ho wever, he resiled from his statement and was declared
hostile. P.W.6 Muhammad Ramzan is also an eyewitness of the occurrence. P.W.7 Dr.
Kaneez Sakina, Medical Officer, examined the dead body of deceased Manzooran and issued
postmortem examination report Ex h.P/7 -A and P.W.8 Sher Nawaz; S.I., is the investigating
officer , of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted
each and every allegation of fact levelled against him by the prosecution and professed his
innocence . However, he neither made any statement on oath under section 340(2) of the
Cr.P.C, nor produced any witness in his defence.
6. At the conclusion of the trial, the trial Court found the prosecuti on's case against the
appellant to have been proved beyond reasonable doubt and, thus, the appellant was
convicted and sentenced, as mentioned and detailed above.
7. Mr. Farzand Ali Mengl, learned counsel for the appellant, contended that the conviction
of, the appellant is coram non judi rce, as the Anti Terrorism Act, 1997 would be attracted
only when act or threat to commit an act had nexus to Sections 6, 7 and 8 of the Anti
Terrorism Act, 1997 and consequences of the act or threat to commit an act, fal ling within the
ambit of section 6 of the Anti Terrorism Act, 1997, were striking a terror and creating a sense
of fear and insecurity among the people, ordinary crimes and physical harm to the victim
would not fall within the ambit of Anti Terrorism Act, 1997, for taking cognizance of an
offence, the court had to see psychological impact of violence, which was always considered
decisive factor. Thus, he prayed for setting aside the impugned judgment and remanding the
case to the ordinary Court for retrial.
He next contended that rival parties have compounded the offence and have forgiven each
other in the name of Almighty Allah. He further stated that in this behalf compromise had
been effected, which was submitted before the trial Court. It has been furt her argued that
according, to the provision of section 345 of the Cr.P.C. and of Schedule attached therewith,
offence under section 302 of the P.P.C. is compoundable by the legal heirs of. the deceased
and under sections 324 to 340 of the P.P.C. by the vic tim. Likewise, in section 338 -F of the
P.P.C. and procedure laid down in Chapter XVI of the Cr.P.C., Sections 299 to 338 -H of the
PPC introduced by Second Amendment Act (II of 1997), wherein the pardon to the accused
by way of "Uffuf" (/ ) to waive the righ t of "Qisas" and "Diyat", are the Islamic provisions
of law and to compound the offence under sections 309 and 310 of the P.P.C. is only the right
of the complainant or the legal heirs of the deceased by waiving the right of "Qisas" and
"Diyat", as such, t he conviction of the appellant, in spite of effecting compromise between the
parties, is unwarranted and illegal. In the alternative, the learned counsel for the appellant has
contended that the appellant does not deserve capital sentence, as according to the
prosecution's own showing, the occurrence is the result of siyahkari.
8. Conversely, the appeal has been opposed by Mr. Anwar -ul-Haq Chaudhry, Advocate,
appearing on behalf of the Prosecutor General, Balochistan, by arguing that the offence
committed by the appellant is not compoundable, being Schedule offence, and the same
clearly falls within the ambit of Anti Terrorism Act, 1997. Thus, the appellant has rightly
been convicted and sentenced by the trial Court by means of impugned judgment, which doe s
not warrant interference of this Court.
9. We have given due consideration to the contentions raised at the bar and have examined
the record with the valuable assistance of the learned counsel for the parties.
Dr. Shah Bakhsh and Dr. Kaneez, who had co nducted the autopsy on the dead bodies of
deceased Mst. Manzooran, Imdad Ali and Bashir Ahmed came forward as P.W.1 and P.W.7
respectively and furnished the detail of injuries observed by them on the corpses of deceased
persons. In their opinion, all the i njuries were ante -mortem in nature and homicidal in
character caused by firearm.
11. After hearing the learned counsel for the parties, we have arrived at a confident
conclusion that the prosecution had proved its case against the appellant beyond the sh adow
of doubt. The connection of the appellant is sought to be established with the crime , in
question by the evidence of P.W.3, complainant, Allan and P.W.6 Muhammad Ramzan.
Admittedly, both the witnesses are closely related to each other as well as to th e deceased
persons, but relationship by itself is not sufficient tc brush aside their evidence. They have
fully supported the prosecutior version. The defence failed to create any dent in their veracity.
They arc resident of the same village and their pres ence at the time and place ol occurrence
cannot be doubted by any degree of seriousness. The appellant and said prosecution witnesses
are related and known to eacF other and it is a case of sole accused, as such, neither any
question ol mistaken identifica tion, nor substitution arise at all. Their evidence is not
suffering from any material contradiction or discrepancy and consisten with the probabilities
materially fitting in with other evidence, more particularly the medical evidence and
supported by the recovery of crime weapon from possession of the appellant and positive
report of firearm expert. We are conscious of the fact that P.W.3, complainant, Allan was
declared hostile by the prosecution up to the extent of not identifying the accused before the
Court, but it is of no significance in the peculiar circumstances of the case, as the parties
entered in compromise, which was also submitted before the trial Court. The incident took
place on 11 -3-2004 at about 3 -00,a.m. and F.I.R. was lodged at 9 -00 a.m. on the same date,
while the distance of police station from the place of incident is about 12/13 kilometers. It is a
case of sole accused, viz, appellant Gul Muhammad, who has been nominated in the
promptly lodged F.I.R. It is not believable that complain ant would involve the appellant
falsely and would allow the real culprits to go scot -free.
12. The positive report of firearm's expert further corroborates the ocular evidence, furnished
by P.W.3 and P.W.6. The learned counsel objected on the admissibili ty of the said report on
the ground that it was without any reasoning. It may be seen that the report was brought on
record without any objection and if the appellant was not satisfied, he could have called the
expert to stand the test of cross -examination as envisaged under the proviso to section 510 of
the Cr.P.C. Thus, we are of the considered view that the prosecution has succeeded to prove
its case against appellant Gul Muhammad beyond the shadow of doubt.
13. Now in order to determine the question o f jurisdiction, for facility of reference, it would
be advantageous to reproduce sub -section (g) of subsection (ii) of section 6 of the Anti
Terrorism Act, 1997, which speaks as under:
"Involves taking the law in own hand, award of any punishment by an o rganization,
individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate
or terrorize public, individuals, groups, communities, Government officials and institutions,
including Law Enforcement Agencies beyond the purview of the law of the land. "
A plain reading of above provision of law leaves no room for any doubt that any offence,
where the offender takes the law in his own hands and awards punishment, the offence falls
within the purview of Anti Terrorism Act, 1997. We are of the view that venue of
commission of a crime, the time of occurrence, the motive and the fact whether or not the
said crime had been witnesses by public at large are not the only determining factors for
deciding the issue whether a case did or did not fall within the parameters of the Anti
Terrorism Act, 1997. The crucial question would be whether the said crime had or had not the
effect of striking terror or creating a sense of fear and insecurity in the people or any section
of the people. The app ellant has committed the murder of three innocent people on the fake
allegation of siyahkari, while taking the law in his own hands, which certainly would have
created a sense of fear, panic and terror amongst the villagers.
14. We have noticed in a numb er of cases, specially committed in Naseerabad Division, that
the killing of innocent wife, sister and other female relatives, on the allegation of siyahkari,
has become a routine practice, rather a fashion, and it is high time we discouraged such
unwarran ted and shocking practice resulting in double murder in the name of so -called
'honour killing'. We are not impressed by the contention of the learned counsel for the
appellant that according to the prosecution's own showing, the occurrence is the result of
'siyahkari, as such; the appellant is liable to be awarded lesser punishment under Section
302(c) of the PPC. It is true that, in the rural areas of Balochistan and especially in
Naseerabad division, the people do not swallow such kind of insult, touching the honour of
their womenfolk and usually commit murder of alleged siyahkar in order to vindicate and
rehabilitate the family honour, but it is equally true that no license can be granted to anyone
to take the law of the land in his hands and start execut ing the culprits himself instead of
taking them to the Courts of law. The murder based on Ghairat does not furnish a valid
mitigating circumstance for awarding a lesser sentence. The killing of innocent people,
specially the women on the pretext of siyahka ri is absolutely un -Islamic, illegal and
unconstitutional. It is worth mentioning that the believers of Islam are not even allowed to
divorce them, without establishing their accusation. We profess our love for Islam, but ignore
clear Qur'anic injunctions regarding the rights of women. The Holy Qur'an in Sura XXIV
(NUUR) Verses 4 says:
"And those who launch A charge against chaste women And produce not four witnesses, (To
support their allegation), ---Flog them with eight stripes; And reject their evidenc e Ever after:
for such men Are wicked transgressors; ---"
In this regard, it would also be advantageous to reproduce Hadith 837 Book 48 (Sahih
Bukhari), which speaks as under: --
"Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of committing
illegal sexual intercourse with Sharik bin Sahma. ' The Prophet 'said, "Produce a proof, or
else you would get the legal punishment (by being lashed) on your back. " Hilal said, "0
Allah's Apostle! If anyone of us saw another man over his wife , would he go to search fora
proof. " The Prophet went on saying, "Produce a proof or else you would get the legal
punishment (by being lashed) on your back." The Prophet then mentioned the narration of
Lian (as in the Holy Book). (Surat -al-Nur: 24)
The crime of siyahkari is increasing in this part of the Province and innocent girls are being
killed under the worst tradition of siyahkari or karokari. False and frivolous allegations are
levelled against the innocent girls and they are never heard. They are being treated as cattle,
which is also violation of the fundamental rights, enshrined in the Constitution. In order to
prevent such crimes, Courts of law should take judicial notice, while trying such heinous
crimes. Our view got support from the judgment of Hon'ble Supreme Court of Pakistan -
reported in PLD 2001 SC.96, which is as under:
"Legally and morally speaking, no body has any right nor can anybody be allowed to take
law in his own hands to take the life of anybody in the name of "Ghairat ". Neith er the law of
the land nor religion permits so -called. honour killing which amounts to murder (Qatl -I-Amd)
simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in
Article 9 of the Constitution of Islamic Republic of Paki stan which provides that no person
would be deprived of life or liberty except in accordance with law and any custom or usage in
that respect is void under Article 8(1) of the Constitution."
In view of section 6(2)(g) substitution by Ordinance XXI of 200 9, re-enacted Ordinance 1 of
2010 dated 1 -2-2010 as well as above discussion, we are of the view that in case of an
unjustified murder by a person, , who, on account of his immorality or to satisfy his brutal
instinct, takes the law in his own hands, is res ponsible for creating sensation and panic in the
Society, thus, the offences committed on the pretext of siyahkari after 1 -2-2010 squarely fall
within the domain of Anti Terrorism Act, 1997 and all the cases pending before the ordinary
Courts stand transfe r to the Anti Terrorism Courts.
15. Similarly, the contention of the learned counsel for the appellant regarding compromise
of offence between the parties is also devoid of force, for the reason that the Anti Terrorism
Act, 1997 was enacted for preventio n of terrorism, sectarian violence and for speedy trial of
heinous offences. As it is special law, we find that the private complainant or the legal heirs
have no right to compound the 'Scheduled Offence', as those offences are mainly against the
State and not only against individuals. Moreover, the offences cannot be compounded
automatically by the legal heirs, but it is always through the Court and the Court can decline
the permission to compromise the offence by the legal heirs of victim. Needless to men tion
here that even the ordinary Courts, under Section 311 of the P.P.C., can punish the accused if
the offence has been compounded by the legal heirs, on the basis of 'Fasad -Fil-Arz'.
For what has been discussed above, we are of the considered view that not providing the right
to compromise the offence by the legal heirs of deceased is neither violation of Islamic
injunctions nor any fundamental rights. Thus, the appeal, being devoid of any force, is
dismissed and murder reference is answered in affirmat ive.
H.B.T.1138/Q Appeal dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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