Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Malik MUHAMMAD MUMTAZ QADRI VS Respondent: The STATE
Court Name: Islamabad High Court Judge(s): Noor-Ul-Haq N. Qureshi, Shaukat Aziz Siddiqui Title: Malik MUHAMMAD MUMTAZ QADRI vs The STATE Case No.: Criminal Appeal No,90 and capital sentence Reference No,1 of 2011 Date of Judgment:2015-03-09 Reported As: PLD 2015 Islamabad 85 Result: Order accordingly
JUDGMENT
JUDGMENT ' SHAUKAT AZIZ SIDDIQUI, J.---This appeal under section 25 of Anti-Terrorism Act, 1997, read with section 410, Cr.P.C. Is directed against the impugned judgment dated 1-10-2011 passed by the learned Special Judge (Court No, II) Anti-Terrorism Court Rawalpindi Division and Islamabad Capital Territory, whereof the appellant awarded death sentence under section 302(b), P.P.C. And ordered to pay. Rs,1,00,000 (On Lac) as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C, in default whereof to undergo 6 months' S.I. Appellant was further awarded death sentence under section 7 of Anti-Terrorism Act- (A.T.A.) and to pay fine Rs,1,00,000 (one lac) and in default whereof to undergo 6 months' S.I in case FIR No,6/2011 dated 4-1-2011 registered at Police Station Kohsar Islamabad. 2. In terms of section 374, Cr.P.C., the Capital Sentence Reference No,1 of 2011 has also been sent to this court which is to be answered through instant judgment. 3. Brief Facts of the case are that law was set into motion through complaint Exh.PB of complainant Shaheryar Ali Taseer (P.W.-10) who narrated the murder ordeal of the then Governor of Punjab, Salman Taseer on 4-1-2011 at about 3-50 p.m., when deceased was on his way back home from the restaurant at Kohsar Market; that appellant Malik Mumtaz Ahmed Qadri who along with others was deputed with the deceased as Security Guard, resorted to firing with his official weapon, resultantly Salman Taseer who received serious injuries, was shifted to Poly Clinic Hospital by the police officials, where doctors confirmed his death. According to complainant his father had a particular view point on national issues, due to which different Religious and Political groups were propagating against him, and threats to murder him were being issued. His father has been killed by accused on the instigation, connivance and conspiracy hatched up by these religious and
---
## Page 2
political groups. Appellant was overpowered by other personnel deputed with the deceased and arrested from the place of occurrence along with his official weapon. On the basis of this complaint formal FIR Exh.PB/1 was chalked out. 4. After formal investigation, the prosecution submitted final report under section 173, Cr.P,C. And accused was put to charge under sections 302, 109, P.P.C. Read with section 7(a), Anti-Terrorism Act 1997, on 14-2-2011 by the learned trial court. In order to prove the charge against the appellant prosecution produced the following witnesses namely;-- "P.W.1 Dr. Muhammad Arshad (Surgeon Emergency/MO Federal Government Poly Clinic Hospital Islamabad who deposed that he along with Dr. Aslam Shah, Dr. Ashok Kumar and Dr. Muhammad Farrukh Kamal conducted post mortem examination of the dead body of deceased and found following injuries:- (1) Multiple bruises on the face/nose/forehead/upper lip. These bruises were irregular and of different sizes and shape. (2) A large irregular wound on the left lower mandibular region, the underlining fractured. Bone can been seen through the wound. The wound measuring of 7 cm x 6 cm. (3) A wound of entry on the right shoulder front measuring 1 cm x 1.5 cm there was no burning, blackening and tattooing. (4) Wound of entry on the upper chest front measuring 3 cm x 1 cm. There was no B/B/T. (5) Wound of entry on the left lower chest front measuring 3 cm x 1 cm. No B/B/T. (6) Wound of entry on the right lower chest, infrolateral to the right nipple measuring 1 cm x 3 cm. No B/B/T (7) Wound of entry on the right Hypochondrium measuring 3 cm x 1.5 cm at the coastal margin. No B/B/T. (8) Wound of entry on the medial surface of left, upper arm. No B/B/T (9) Wound of exit measuring 7 cm x 2 cm on the front of left axila. (10) An irregular wound measuring 3 cm x 5 cm on the interior aspect of the right axila. (11) Re-entry wound in the lower part of left axila measuring 1 cm x 1.2 cm (12) Two wounds of entries on the lateral surface of upper thigh (clutal region) measuring 5 cm x .5 cm. No B/B/T. (13) A wound of entry in the right lateral lumber region 5 cm above the illiac crest measuring 3 cm x 1cm. No B/B/T. (14) Wound of exit on the lateral surface of right buttock measuring 3 cm x 1.5 cm. Underlining tissues protruding out through the wound. (15) A gutter wound on the right forearm 9 cm x 4 cm underline. Bone can be seen to the wound. (16) Wound of entry on the medial surface of right forearm measuring 1 cm. No B/B/T. (17) A bullet fragment can be palpated on the medial side of the right elbow. The incision was made and the bullet fragment was recovered. (18) A small abrasion on the front of left knee. (19) A wound of entry on the back over to dorsal spine 16 cm below the nape on the back. No B/B/T. (20) Wound of entry on the left lower chest on the back measuring 0.5 cm in diameter. (21) Wound of entry just below the scapular region on the back measuring 5 cm x 0.8 cm. No B/B/T. (22) A group of wounds of entries, (six in numbers) on the left buttock each measuring .5 cm in diameter. No B/B/T. (23) Two wounds of exit on the right lateral side of chest at the back close to scapular region measuring 1.5 cm in diameter. (24) A wound of exit on the lateral surface of upper lumber region on the back 1 cm in diameter. (25) Two wounds of exit on the right buttock on the back measuring 3 cm x 1.5 cm, underlying tissue protruding out.
---
## Page 3
(26) Four wounds of exit on the right buttock at the back, irregular in shape and sizes 4 cm x 1.5 cm on average. (27) A large wound exit at the sacro-cocygal region measuring 7 cm x 7 cm. (28) A graze wound of 11 cm in length and 1 cm in width at the secoral region on the back. ' This P.W. Further deposed that in the opinion of medical team, the cause of the death was extensive injuries to both lungs, liver, stomach, small and large gut and pelvic structures. That all the injuries were due to the firearms and ante mortem and such injuries were sufficient to cause death in ordinary course of nature. That X-Ray skull, chest, abdomen pelvic and limbs taken at FGPC before dissection started, the bullet fragments recovered were handed over to the police under seal and labeling. That the bullet fragment lodged at the chest could not be recovered after an extensive effort. He further deposed that the probable time between the injuries and death was immediate and probable time between death and post mortem examination was within 6 hours (Defence did not opt to cross-examine this witness). ' P.W.2 Iftikhar Ali ASI/Muharrar P.S. Kohsar Islamabad stated that on 4-1-2011 he received complaint Exh.PB from the SHO through constable Abdul Raheem (P.W.3) and he chalked out the FIR No,6 Exh.PB/1. He further deposed that on the same day he received three parcels containing blood stained cotton, empties and SMG Rifle respectively and he kept the parcels in Mall-Khana and on 7-1-2011 after obtaining road certificate he handed over the same to Safdar Ali ASI for its onwards transmission to the, office of Chemical Examiner and Forensic Science Laboratory Lahore. ' P.W.3 Abdul Raheem Constable/6147 stated that on 4-1-2011 the SHO P.S. Kohsar handed over to him complaint Exh.PB at the spot and he took the same to the police station and handed it over to the Moharrar for registration of the formal FIR and Moharrar handed over copy of the FIR to him after registration and he handed over the same to SHO at the spot. ' P.W.4 Safdar Hussain ASI, P.S. Kohsar stated that in the night between 6/7-1-2011 the Moharrar of P.S. Kohsar handed over to him one sealed parcel said to contain blood stained cotton, second parcel said to contain 28 empties and third parcel said to contain SMG Riffle. He deposited the first parcel in the office of Chemical Examiner and rest of two parcels in the office of Forensic Science Laboratory, Lahore. ' P.W.5 Muhammad Gulfraz SI P.S. Kohsar deposed that on 5-1-2011 he collected post mortem report of the deceased on the direction of SHO P.S. Kohsar. Also collected 7 X-Rays, one sealed parcel said to contain led bullet, last worn clothes of the deceased from CMO PIMS Hospital and handed over the same to SHO who prepared recovery memo Exh.PC. ' P.W.6 Khurram Shahzad draftsman, stated that on 5-1-2011 he along with I0 and P.Ws. Went to the place of occurrence. On the direction of I0 and pointation of witnesses he obtained rough notes of the place of occurrence and thereafter prepared a scaled site plan Exh.PD. On 9-1-2011 he handed over the same to the 10. ' P.W.7 Timer Farooq Constable/4382 deposed that he was performing duties as Naib Moharrar at Elite Force, Rawalpindi. That on 3-1-2011 the visiting programme of deceased Governor Salman Taseer came to the security branch. That Governor arrived from Lahore at 12.00 noon through motorway. On 4-1-2011 he sent two police escorts to the residence of Governor at F-6/3 Islamabad. Appellant was on another duty and he deputed him with the Governor, as appellant had desired that he intended to visit Islamabad. ' P.W.8 Salman Ghani stated that on 4-1-2011 he identified dead body of the deceased Salman Taseer in PIMS Hospital and also signed the receipt Exh.PE. ' P.W.9 Ch. Muhammad Ali Assistant Commissioner Islamabad stated that he recorded the confessional statement of appellant under section 164, Cr.P.C. On 10-1-2011 on the directions of the District Magistrate.
---
## Page 4
' P.W.10 Shaheryar Taseer is complainant of the case who stated that on 4-1-2011 he moved written application Exh.PB for registration of the case. ' P.W.11 Nadeem Asif ASI gunman to the Governor Punjab Pindi Region and P.W.12 Muhammad Ameer Khan Inspector, presently posted as SHO at P.S. Makhdoom Rasheed Multan have provided the eyewitness account by deposing that on 4-1-2011 at about 3-00/3-15 p.m. Deceased left his house for Kohsar Market to have lunch. That after taking lunch deceased came out of the hotel for his house along with covering party/security guards. Appellant was one of the member of covering party and all of sudden he resorted to firing with his official weapon at deceased. They further deposed that this episode continued for seconds whereafter appellant was overpowered, arrested and handed over to the local police. They further deposed that they had shifted deceased in injured condition in police vehicle to the Poly Clinic Hospital Islamabad. P.W.12 also witnessed the recovery of the riffle, Exh.P4, magazine Exh.P5/1-2 and 28 live bullets, Exhs.P6/1 to 28 vide recovery memo Exh.Ph. He further witnessed the personal search of the appellant. ' P.W.13 Tanveer Ahmed ASI P.S. Secretariat Islamabad deposed that on 4-1-2011 he remained associated with the investigation of the case. Station House Officer Hakem Khan collected the blood stained earth from the place of occurrence vide recovery memo Exh.PK, I.O. Further collected 20 empties of SMG from the place of occurrence vide memo of recovery Exh.PL, he also witnessed the recovery of gun, 28 live bullets and two magazine vide recovery memo Exh.PH. ' P.W.14 Hakem Khan Inspector/Investigating Officer presently posted at P.S. Secretariat Islamabad stated that on 4-1-2011 received information of occurrence and proceeded to the place of occurrence, he prepared visual site plan Exh.PP, received the written application Exh.PB from complainant and dispatched it to P.S. Kohsar for the registration of the FIR, collected 28 crime empties from the place of occurrence besides collecting blood stained earth. That he took the custody of appellant from P.W.12 Muhammad Ameer Khan along with crime weapon, obtained his physical remand and that on the request of appellant he produced him before the Magistrate to record his statement under section 164 of Cr.P.C. He dispatched the crime weapon, cartridges and crime empties to the. Concerned laboratories. '5. The learned trial Court recorded the statement of appellant under section 342, Cr.P.C., appellant opted not to make any statement under section 340(2), Cr.P.C. And to adduce any evidence in his defense, however, written statement under section 265(F) 5, Cr.P.C. Was submitted, press clippings Mark "A to A" with Book "Stranger to History" attached thereto. 6. After conclusion of the trial appellant was found guilty of commission of the offence of Qatl-i- amd of deceased and awarded death sentence under section 302(b), P.P.C. And was also: ordered to pay Rs,1,00,000 (one Lac) as compensation to the legal heirs of the deceased under section 544- A, Cr.P.C., in default whereof to undergo 6 months' S.I. The learned trial Court also found appellant guilty of the commission of offence under section 7(a), (A.T.A.) and after convicting him awarded death sentence and was ordered to pay fine Rs,1,00,000 (one Lac) and in default whereof to undergo 6 months' S.I. The appellant filed the instant criminal appeal. The trial Court also sent Capital Punishment Reference for confirmation of the death sentence. 7. Learned counsel Messrs Khawaja Muhammad Sharif and Mian Nazir Akhtar, Senior Advocate Supreme Court representing appellant argued that section 6 of Anti-Terrorism Act, 1997, does not attract to the facts and circumstances of this case; that findings of the learned trial court, that act committed by the appellant falls in the category of terrorism is completely arbitrary and baseless; that the learned trial , Court wrongly held that act of the appellant had terrified masses as there was not an iota of evidence on record to show that any panic or sense of insecurity was created in the general public and in-fact general public was relieved on the death of the deceased in view of the notoriety of his character and his messy utterance about the blasphemy laws. The act of appellant was highly appreciated by the lovers of Prophet (PBUH). They further argued that in the
---
## Page 5
absence of evidence about elements of terrorism, panic or sense of insecurity' amongst the general public the case ought to have been tried in the Sessions Court under the normal law and the proceedings of trial before the learned trial court was coram non judice. They further added that the ingredients to constitute the commission of offence under section 6 of the Anti-Terrorism Act, 1997, are not established from the prosecution evidence, therefore, conviction of the appellant under section 7(a) of the supra Act is not sustainable. Learned counsel maintained that even otherwise no incriminating material was put to accused under section 342, Cr.P.C., therefore, conviction on this count is not sustainable. 8. Learned counsel for appellant further contended that deceased had himself committed the serious offence by condemning the blasphemy laws and became {{URDU TEXT}} and {{URDU TEXT}} i,e, one who could legitimately be killed with impunity; that the learned trial Court failed to appreciate this aspect of the case as the utterance of the deceased caused grave and sudden provocation to the appellant in particular and public at large in general. Further argued that learned trial Court held that individual cannot be allowed to execute punishment upon persons guilty of commission of offence of blasphemy, ignoring the Islamic Law and the judgments pronounced by the Holy Prophet (P.B.U.H.) in a number of cases; that the Hon'ble Supreme Court has held in the case of "Zaheer ud Din v. Federation of Pakistan" (1993 SCMR 1718) that the real and effective law in Pakistan is Islamic Law, therefore, the learned trial court was bound to follow this dictum of apex Court of country and should have acquitted appellant. Learned counsel added that learned trial court failed to appreciate and follow the provisions of sections 79 and 338 of P.P.C. ' It has also been argued that prosecution withheld independent evidence and produced less number of witnesses, who were present at the scene of occurrence. Learned counsel further argued that impugned judgment of the learned trial Court is result of surmises and conjectures, that no offence of Qatl-i-amd under section 302(b) of P.P.C. Was made out from the facts and circumstances of the case; that at the most the case fell within ambit of section 302(c) of P.P.C. And quantum of sentence awarded to the appellant is extremely harsh, uncalled for in the peculiar circumstances of this case; that learned trial Court had fixed the case for arguments of the parties on 1-10-2011 but had illegally announced the judgment, without hearing arguments on behalf of the appellant and as such acted in unreasonable and unjustified haste to convict the appellant and pass the sentence. The learned counsel submitted that appellant is entitled to be acquitted keeping in view the principles of Islamic Law and the judgments rendered by the Holy Prophet (P.B.U.H) in a number of cases. 9. Learned counsel of appellant further submitted that act of appellant, taking life of deceased can be ascribed as "extra judicial" but not beside the law. While defining law learned counsel described the Holy Quran and Sunnah of Prophet (P.B.U.H.). 10. Learned counsel representing the appellant while stressing upon the plea of appellant made reference to the reported cases of "Hag Nawaz and others v. Province of Punjab" "1997 MLD 299", Yar Muhammad v. The State" "PLD 1997 Quetta 31", "Zaheer ud Din and others v. The State" "1993 SCMR 1718" and "Fida Hussain v. Mst. Najma" "PLD 2000 Quetta 46" and contended that act of the appellant committing the murder of deceased was/is absolutely no offence as under the Islamic Law which is supreme and fundamental law of the State of Islamic Republic of Pakistan and various judgments rendered by the Holy Prophet Muhammad (P.B.U.H) in the cases of the murders of the contemnors of the Holy Prophet Muhammad (P.B.U.H.). Learned counsel for the appellant have further argued that deceased had committed contempt of the Holy Prophet Muhammad (P.B.U.H) as he had criticized the blasphemy law and declared it as black law; that the State and its functionaries failed to convict him for the offence under section 295-C of P.P.C.; that after failure of the State it had become responsibility of all Muslims of the State to enforce Hadd for the crime committed by the deceased; that it was bestowed on the appellant from Allah Almighty to enforce
---
## Page 6
Hadd by committing murder of the deceased who was Mubah-ud-Dum, therefore, the appellant having found the chance by chance discharged his lawful obligations caste upon him by the Islamic law and judgments of the Holy Prophet Muhammad (P.B.U.H) therefore, act of appellant is totally protected and his conviction is not sustainable as such he is entitled to be acquitted. ' Learned counsel for the appellant argued that impugned judgment of the learned trial Court is result of surmise and conjectures, and is liable to be set aside. They have further argued that it is a case of two versions, one introduced by the prosecution and the second taken by the appellant and it is settled law that if both versions in the case being equally possible, the version favorable to the appellant is to be accepted. They further argued that there are number of instances that the individual Muslims had killed the contemnors in the lifetime of Holy Prophet Muhammad (P.B.U.H) without seeking his prior permission and subsequently their acts were ratified and that appellant is also placed in a similar situation. Reliance has been placed on the case-law "Babar Ali v. The State" "PLD 2007 Lahore 650", "Muhammad Jhumman v. The State" "2001 PCr.LJ 1312" "Hakam Din v.. The State" "PLD 2006 SC(AJ&K) 43", "Javed v. The State" "PLD 1994 SC 679" and "Israr Ahmed v. The State" "2008 PCr.LJ 1000". 11. Conversely learned Advocate-General and Standing Counsel for the State have rebutted the arguments of the learned counsel for the appellant by contending that judgment of the learned trial court did not warrant any interference as appellant had admitted the charge with the specific plea to the effect that; "I have not committed the murder of an apostate like Salman Taseer (the then Governor of Punjab) contrary to dictums of Holy Quran and Sunnah" ' Therefore, as per provision of Article 121 of Qanun-e--Shahadat Order, 1984 he was required to prove that he was justified in committing murder of the deceased and that his act did not attract any penal provision as it was not an offence but appellant miserably failed to prove his plea, the eye-witness count furnished by the P.W.11, P.W.12 is' confidence inspiring which is duly supported by the corroborative piece of evidence in shape of medical evidence furnished by the P.W.1, recovery of crime weapon from the appellant, the blood stained earth from the place of occurrence and matching of the crime empties with the crime weapon. It is further argued that appellant was deputed to protect the deceased who was Governor of Punjab at that time but instead of discharging his duties, appellant committed murder of the deceased in a preplanned and brutal manner which is evident from the medical evidence furnished by P. W.1 as the deceased had received 28 injuries due to the firing of appellant with his official weapon. It is further argued that the plea of appellant, that he was justified in committing murder of the deceased and that it was not an offence, is absolutely ridiculous and against the settled principle of Islamic Law and it is also against the fundamental rights of every citizen of the Islamic Republic of Pakistan and that murder Reference should be answered in affirmative and appeal of appellant is liable to dismissed. 12. We are fully conscious of the fact that matter in hand is delicate in nature, sensitive in terms and serious in consequence. We are totally convinced that best guidance comes from Allah Almighty, WHO through commands enshrined in The Holy Quran, leads everyone to just decision, as directed in Surah Nisa (Verse 135). {{ARABIC TEXT}} "O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be rich or poor; Allah is a better Protector to both (than you). So follow not the lusts (of your hearts), 'lest you avoid justice; and if you distort your witness or refuse to give it, verily, Allah is. Ever Well - Acquainted with what you do" 13. The grace and honour of the Holy Prophet Muhammad (P.B.U.H) is not only well entrenched in various verses of Holy Quran but in other divinely testaments. It would be appropriate to quote a few examples about the greatness of the Holy Prophet (P.B.U.H) from Holy Quran;--
---
## Page 7
' In Surah "Al-Najm" verse Nos. 1 to 4 it is ordained that {{ARABIC TEXT}} "By the Star. When it set, your companion is neither gone astray nor deluded. He does not speak of his own desire; it is but a Revelation which is sent down to him" ' In Surah "Al-Inshirah" it is ordained that {{ARABIC TEXT}} (O Prophet!) have We not opened up your breast for you? And removed from you the heavy burden that was weighing down your back, and exalted your renown for you. So, the fact is that along with every hardship there is also ease. Indeed, with every hardship there is also ease! Hence, when you are free, devote yourself to the labor of worship, and turn all your attention to your Lord" ' In-Surah Al-Ahzab in Verse Nos. 56 to 58 it is ordained that {{ARABIC TEXT}} ' IlIndeed, Allah confers blessing upon the Prophet, and His angels [ask him to do so] 0 you who have believed, as [Allah to confer] blessing upon Him and ask [Allah to grant him] peace. ' Allah has cursed in this world and in the Hereafter those who cause trouble to Allah and His Messenger, and has prepared for them a disgraceful punishment. ' And those who cause trouble to the believing men and women for no fault of theirs, have indeed borne on their head the burden of a grave slander and a manifest sin" ' In Surah "Al-Hujrat Verse Nos. 1 to 3" it is ordained that {{ARABIC TEXT}} "O you who have believed, do not go in advance of Allah and His Messenger,' and fear Allah: Allah is All-Hearing, All-Knowing" "O you who have believed, do not raise your voices above the Prophet's voice, nor speak to him loud as you speak loud to one another lest all your works be rendered void, while you do not know. Those who lower their voices in the presence of the Messenger of God, are; in fact, those whose hearts Allah has disposed to piety. For them in forgiveness and a great reward" ' In Verses Nos. 12 and 13 of Surah-e-Anfal it is ordained that;- {{ARABIC TEXT}} ' And remember when your Lord was inspiring the angels with this: "I am with you: so keep the Believers steadfast. I am now going to fill the hearts of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.