2020 Y L R 1241
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
MOHIBULLAH---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 172 and Murder Reference No. 8 of 2019, decided on 18th December,
2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324 & 353--- Anti-Terrorism Act (XXVII of 1997), S. 7--- Qatl-i-amd, attempt to
commit qatl -i-amd, assault or criminal force to deter public servant from discharge of his
duty, act of terrorism ---Appreciation of evidence ---Sente nce, reduction in--- Prompt FIR ---
Mitigating circumstances --- Public servant, not in official uniform ---Single fireshot---Scope -
--Accused was alleged to have murdered one of the levies officials when he was trying to arrest the accused on account of engagem ent in an altercation with another group---
Complainant, in the promptly lodged FIR, had nominated the accused for making firing upon the deceased ---Empties had matched with the pistol which was recovered on the spot ---High
Court observed that the accused w as responsible for the murder and had rightly been
convicted, however, noticed that no evidence was available on record to prove that the incident of altercation was reported to the levies; that no member of the other group was produced; that the attack upon the deceased seemed to be without premeditation; that the deceased was not wearing his official uniform and that the accused had not repeated the fireshot ---Said circumstances fell within the ambit of mitigation therefore sentence of death
was altered t o imprisonment for life ---Appeal was dismissed.
Haroon Rasheed v. The State 2005 SCMR 1568; Sh. Muhammad Abid v. The State
2011 SCMR 1148; Nasir Iqbal v. The State 2016 SCMR 2152; Fayyaz alias Fiazi v. The State 2017 SCMR 204 and Rehmat Khan v. The State 2017 SCMR 2034 ref.
Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and
Muhammad Sharif v. The State PLD 2009 SC 709 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 353---Anti -Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl -i-amd,
attempt to commit qatl- i-amd, assault or criminal force to deter public servant from discharge
of his duty, act of terrorism ---Public servant not in official uniform ---Accused was alleged to
have murdered one of the levies officials when he was trying t o arrest the accused on account
of engagement in an altercation with another group ---Validity ---Act of accused was not
committed with design or purpose specified in clause (b) or (c) of subsection (1) of S.6, Anti -
Terrorism Act, 1997 ---Such act did not fal l within the ambit of "terrorism" because only the
deceased was targeted who was not wearing official uniform ---None of the other levies
officials had received any injury and the deceased had received only one fireshot injury on
his person--- Conviction of accused under S.7, Anti -Terrorism Act, 1997 recorded by Trial
Court was set aside and he was acquitted of the charge.
Criminal Appeals Nos. 95 and 96 of 2019 rel.
(c) Criminal trial ---
---Each criminal case has its own peculiar facts and circumstances an d seldom coincides with
other on salient features.
Shabbir Ahmed Rajput for Appellant.
Wali Muhammad Barrech for the Complainant.
Habibullah Gul, A.P.G. along with Abdul Mateen D.P.G. for the State.
Date of hearing: 14th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant having been involved in case FIR No.
3/2018 dated 27.01.2018 registered under sections 302, 324, 353 and 586, P.P.C. read with
section 7 of the Anti -Terrorism Act, 1997 (the "Act") at Levies Thana Nasai, Tehsil
Muslimb agh District Killa Saifullah was tried by learned Special Judge, Anti- Terrorism
Court Loralai ("trial court") and on completion thereof by means of judgment dated 16th May 2019 ("impugned judgment") was convicted and sentenced in the following terms: --
"15……. The accused Mohibullah son of Haji Abdul Hanan is convicted under
section 302(b), P.P.C. and is sentenced to death. The accused Mohibullah son of Haji Abdul Hanan is convicted under section 7(1)(a) and is sentenced to death and shall pay fine Rs.200,0 00/- (rupees two lac) to the State and in case of default shall
undergo four months in simple imprisonment. The accused Mohibullah son of Haji Abdul Hanan is convicted under section 7(1)(h) of Anti -Terrorism Act and is
sentenced to imprisonment for life and also shall pay fine Rs.100,000/ - (rupees one
lac) to the State and in case of default shall undergo two months' simple imprisonment . The convict Mohibullah son of Haji Abdul Hanan punishable under
section 302(b), P.P.C. shall pay compensation of Rs.600,000/ - (six lac rupees) to the
legal heirs of deceased Hayatullah Naib Risaldar Levies under section 544 -A, Cr.P.C.
in case of default the convict shall undergo six months in simple imprisonment. The convict Mohibullah son of Haji Abdul Hanan punishable unde r section 302(b), P.P.C.
and 7(1)(a) of Anti -Terrorism Act shall be hanged by neck till his death. The death
sentence shall not be executed unless it is confirmed by the honorable High Court
under section 374, Cr.P.C. All the sentences shall run concurrent ly. The convict is in
judicial custody and be sent to Central Jail Mach for execution of the sentences. The
benefit of section 382- B Cr.P.C. is extended in favour of convict. "
Aggrieved from the impugned judgment the appellant has assailed his conviction and
sentence through Criminal Appeal bearing No. 172 of 2019, while the trial court forwarded Murder Reference No. 08 of 2019 for confirmation or otherwise of death sentenced inflicted upon the convict/ appellant in terms of section 374, Cr.P.C. As both t he cases are arising out
of one and same judgment of the trial court, therefore same are being disposed of through this single judgment.
2. The prosecution story as disclosed in the complaint Ex.P/1- A recorded on the
statement of PW -1 Abdul Salam son of Da d Muhammad (complainant) is that on 27.01.2018
at 4:30 p.m. Naib Risaldar Levies Hayatullah along with other levies officials were present in Levies Thana Nasai. Meanwhile he received information through telephone that two parties were fighting with each o ther at Nasai Bazar. On this information Naib Risaldar Levies along
with levies officials Abdul Salam Dafadar, Ameer Muhammad, Mirza Khan and Muhammad Kaleem reached to Nasai Bazar in official pickup at 4:40 pm, where they saw that the accused/appellant Mo hibullah was quarrelling with Khudaidad, Rafiullah and Abdul Bari
whereas the accused/appellant Mohibullah was holding a pistol in his hand. When Naib Risaldar Hayatullah attempted to arrest the accused/appellant, he opened fire upon the levies officials d ue to which one bullet hit Naib Risaldar Hayatullah on his left chest who
succumbed to the injury on the spot. The accused/appellant Mohibullah was arrested and the pistol was recovered from his possession. Hence the crime report.
3. After completion of th e investigation the challan was prepared, and submitted before
the trial court. The trial court, after observing the codal formalities as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant to which he did not plead guil ty and claimed trial. At the trial the prosecution has produced seven witnesses.
Thereafter the appellant was examined under section 342, Cr.P.C; however the appellant neither recorded his statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defense. On conclusion of the trial and after hearing arguments,
the trial court convicted and sentenced the appellant as mentioned above in para No.1 whereafter the instant appeal has been filed and reference was sent by the trial court.
4. Learned counsel for appellant contended that the impugned judgment is result of
misreading and mis -appreciation of material available on record; that the prosecution has
failed to establish the presence of the eye- witnesses of the occurrence at the time and place
of occurrence; that the case of prosecution is lacking independent corroboration as only levies officials have been produced; that the prosecution has miserably failed to substantiate the charge against the appellant; that the prosecuti on has failed to produce any iota of
evidence connecting the appellant with commission of alleged crime; that the prosecution has miserably failed to substantiate the charge against the appellant; that the prosecution has failed to establish recovery of cr ime weapon from appellant's possession; that the trial court
assumed and exercised jurisdiction within the precincts of the Act by violating well settled law with regard to invocation of section 6 of the Act; that the prosecution has miserably
failed to es tablish the charge through concrete or solid evidence, thus the impugned judgment
is liable to be set aside.
5. Learned counsel for the complainant strongly opposed the arguments so advanced by
learned counsel for appellant and while supporting the impugne d judgment has contended
that sufficient incriminating evidence is available on record connecting the appellant with the
commission of offence; that prosecution's case is supported by the medical evidence coupled with recovery of crime weapon as well as ma tching of crime empties with the recovered
crime weapon; that the impugned judgment of the trial court is based upon proper appraisal of material available on record.
The learned APG appearing along with learned DPG endorsed the arguments put forth
by lea rned counsel for complainant.
6. Arguments advanced from both the sides have been heard. We have also minutely
gone through the record available on file with the able assistance of learned counsel for the parties. It is an established principle of law that each criminal case has its own peculiar facts
and circumstances and the same seldom coincide with each other on salient features. Admittedly it is an unfortunate incident in which Naib Risaldar Levies lost his life after sustaining firearm injuries, but t o put the facts and circumstances in equilibrium with the
touchstone of safe administration of justice, we have scrutinized the whole evidence available on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of ocular account, medical evidence, as
well as investigation besides other attending circumstances.
7. As far as merits of the case are concerned, we have observed that the prosecution
produced PW -1 Abdul Salam, PW -3 Muhamma d Kaleem and PW- 4 Bahadur Zaman, who
were eye- witnesses of the occurrence. The case was registered on the complaint of PW- 1
namely Abdul Salam son of Dad Muhammad on basis of Fard- e-Bayan (Ex.P/1 -A) wherein
he has specifically nominated the accused/appella nt Mohibullah for making firing upon the
deceased Naib Risaldar Hayatullah, while one bullet hit on the chest of the deceased and absolute role of firing was attributed to the accused/appellant. The FIR was promptly lodged without any delay. This witness narrated the whole story with regard to the occurrence and has correctly stated the date, time place and manner in which the occurrence has taken place. PW-1 has correctly identified the accused in trial court. Likewise PW -3 and PW -4 are also
eye-witnesses of the occurrence. The above witnesses attributed the role of firing to the
appellant. They gave consistent, natural and straightforward ocular account of the occurrence. The defense subjected them to lengthy searching cross -examination but their
testimoni es remained unshaken and unshattered. There was absolutely nothing in their cross -
examination to show that the appellant was falsely implicated in the case. The presence of the said witnesses on the spot was also proved in the present case. Names of the wi tnesses
are mentioned in the FIR which was promptly lodged without any delay, while the investigation officer has recorded statement of the above witnesses soon after the occurrence.
8. The case of the prosecution has further been strengthened by the recovery of crime
weapon i.e. pistol from appellant on the spot. Since the investigation officer has taken into
possession the empties of pistol from the place of occurrence, thereafter, the recovered pistol
along with empties were sent to FSL for analysis and after examination the FSL through examination report (Ex.P/7- F) confirmed that the empties were fired from the recovered
pistol. Thus, the prosecution has successfully established the recovery of pistol from possession of appellant.
9. Testimonies of the above witnesses have also been corroborated by the recovery of
blood of the deceased from the place of occurrence, his blood stained garments, recovery of crime empties and pistol from appellant and positive reports of FSL and Firearms E xpert.
The said recoveries have been duly proved through recovery witnesses and nothing adverse could be achieved despite cross -examination. The medical evidence produced by the
prosecution also supported and corroborated the testimony of the eye -witnesses and no
contradiction at all could be pointed out by the defense. Reliance is placed on case titled as Haroon Rasheed v. The State (2005 SCMR 1568), Sh. Muhammad Abid v. The State (2011 SCMR 1148) and Nasir Iqbal v. The State (2016 SCMR 2152).
10. After re appraisal of direct and circumstantial coupled with medical evidence after
minute consideration of all the circumstances, in the light of dictum laid down by the Hon'ble Supreme Court as well as the recoveries of crime empties, matching of the same with th e
crime weapon as well as the medical evidence, we are of the considered view that appellant Mohibullah is responsible for the murder of deceased and has rightly been convicted by the trial court. Having concluded so, it has been observed by us that a spec ific motive was set up
by the complainant in the FIR and in his statement recorded before the trial court inasmuch as prior to the incident they received information that two parties were quarrelling with each other at Nasai Bazar upon which they reached t o the place of occurrence and saw that two
parties were fighting with each other and the accused Mohibullah was armed with a pistol. When the deceased (Hayatullah) Naib Risaldar Levies tried to apprehend him he made a fire upon the deceased. It has also surfaced during cross -examination of the witnesses that at the
time of occurrence the Naib Risaldar was not in uniform and he was wearing a formal dress. There is nothing on record to prove that the incident of altercation between two parties i.e. accused/ap pellant and Khudaidad, Rafiullah and Abdul Bari was ever reported to levies.
Neither statements of Khudaidad, Rafiullah and Abdul Bari were recorded by levies, nor were they produced before the court. Even otherwise the deceased received one frearm injury and the accused/appellant did not repeat the same.
11. We have further observed that conviction and sentence of the appellant recorded by
the trial court under section 7 of the Act cannot be sustained. The act of the accused was not committed with design o r the purpose specified in clause (b) or (c) of subsection (1) of
section 6 of the Act. Reliance is placed in judgment passed by the Hon'ble Supreme Court, in Criminal Appeals Nos. 95 and 96 of 2019 wherein para 13 it was observed that:
"………A careful read ing of the Third Schedule shows that an Anti -Terrorism Court
has been conferred jurisdiction not only to try all those offence which attract the definition of terrorism provided by the Act but also some other specified cases involving heinous offences whic h do not fall in the said definition of terrorism. For
such latter category of cases it was provided that although those offences may not constitute terrorism yet such offences may be tried by an Anti -Terrorism Court for
speedy trial of such heinous offenc es. This distinction between cases of terrorism and
cases of specified heinous offences not amounting to terrorism but triable by an Anti -
Terrorism Court has already been recognized by this Court in the cases of Farooq
Ahmed v. State and another (2020 SCMR 78) Amjad Ali and others v. The State
(PLD 2017 SC 661) and Muhammad Bilal v. The State and others (2019 SCMR
1362). It has been clarified by this Court in those cases that such specified heinous
offences are only to be tried by an Anti -Terrorism Court an d that court can punish the
person committing such specified heinous offences only for commission of those
offences and not for committing terrorism because such offences do not constitute terrorism. For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No.4 of the Third Schedule to the Anti -Terrorism Act, 1997 are cases of those heinous offences
which do not per se constitute the offence of terrorism but such cas es are to be tried
by an Anti -Terrorism Court because of, their inclusion in the Third Schedule. It is
also clarified that in such cases of heinous offences mentioned in .entry No.4 of the said Schedule an Anti -Terrorism Court can pass a punishment for the said offence and
not for committing the offence of terrorism."
It was further held in paras 15 and 16 of the judgment supra that:
"15...........After this amendment in section 6 an action can now be termed as terrorism
if the use or threat of that action is designed to coerce and intimidate or overawe the
Government or the public or a section of the public or community or sect, etc, or if such action is designed to create a sense of fear or insecurity in the society or the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause, etc. Now creating fear or insecurity in the society is not by itself terr orism unless the
motive itself is to create fear or insecurity in the society and not when fear or
insecurity is just a byproduct, a fallout or an unintended consequence of a private crime. In the last definition the focus was on the action and its result whereas in the
present definition the emphasis appears to be on the motivation and objective and not on the result. Through this amendment the legislature seems to have finally appreciated that mere shock, horror, dread or disgust created or likely to be c reated in
the society does not transform a private crime into terrorism but terrorism as an "ism" is a totally different concept which denotes commission of a crime with the design or
purpose of destabilizing the government, disturbing the society or hurti ng a section of
the society with a view to achieve objectives which are essentially political,
ideological or religious. This approach also appears to be in harmony with the emerging international perspective and perception about terrorism. The international perception is also becoming clearer on the point that a violent activity against civilians that has no political, ideological or religious aims is just an act of criminal
delinquency, a felony, or simply an act of insanity unrelated to terrorism. This
metamorphosis in the anti -terrorism law in our country has brought about a sea
change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and tr ansformation in its true perspective.
16. For what has been discussed above it is concluded and declared that for an action
or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fa ll in subsection (2) of section 6 of the said
Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use
or threat of such action must be to achie ve any of the purposes mentioned in clause
(c) of subsection (1) of section 6 of the Act. It is clarified that any action constituting
an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it i s not committed with the design or purpose
specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said
Act. It is further clarified that the actions specified in subsection (2) of section 6 of
the Act do not qualify to be labeled or characterized as terrorism if such actions are
taken in furtherance of personal enmity or private vendetta."
Considering the overall circumstances of the case and the principle laid down by the
Hon'ble Supreme Court in the above cases, we are of the v iew that provisions of the Act are
not attracted in the case in particularly when only the deceased was targeted and no other
levies officials received any injury and there was a single firearm injury on the person of the deceased. Accordingly conviction of appellant under section 7 of the Act recorded by the trial court is set aside and he is acquitted of the charge under the aforesaid charge.
12. The trial court while adjudicating the matter has inflicted sentenced of death upon the
appellant, however whi le going through the record available in file we have noticed that in
the crime report and according to statements of witnesses the role of single shot fired upon the deceased has been ascribed to appellant. It is suffice to observe that the manner in whic h
the occurrence has taken place does not disclose premeditated circumstances, whereas arrival of the deceased at the place of occurrence was by chance and the attack upon the deceased by the appellant seems to be without premeditation. At the time of occu rrence the deceased was
not in official uniform and he was in formal dress. Both these facts when taken into consideration, we are of the considered view that the case of appellant falls within the ambit of mitigation. Guidance in this regard is sought fro m the ratio dicidendi laid down by the
Hon'ble Supreme Court in the case of Muhammad Riaz and another v. The State and another (2007 SCMR 1413) wherein it was held as under:
"No doubt normal penalty for an act of commission of Qatl -i-amd provided under la w
is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case."
Similar vi ew was affirmed in the case of Muhammad Sharif v. The State (PLD 2009
SC 709) wherein it was held as under:
"It has been seen and observed from the perusal of the various proceedings in relation to section 302 of P.P.C. in particular its clause (b) that t here is a choice and discretion
with the Court to inflict punishment "with death or imprisonment for life as tazir having regard to the facts and circumstances of the case."
Reliance is also placed in the case of Fayyaz alias Fiazi v. The State (2017 SCMR
204) and Rehmat Khan v. The State (2017 SCMR 2034).
In view of above while maintaining the conviction of the appellant under section
302(b), P.P.C. his sentenced of death is altered to imprisonment for life. The amount of
compensation and sentence in its default are maintained. Benefit of section 382 -B, Cr.P.C. is
extended to the appellant. The impugned judgment of the trial court is modified accordingly.
With the above modification in the sentence of appellant the Criminal Appeal No. 172 of 2019 is dismi ssed.
The Murder Reference No. 08 of 2018 is answered in NEGATIVE.
SA/2/Bal. Sentence reduced.This 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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