2006 P Cr (PLP)

MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.

Appellant Rasheed Ahmad along with Muhammad Aslam was tried in case F.I.R. No.290, dated 12-8-2001 registered under sections 302/324/353/34, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 at Police Station Khudian District Kasur by the Special Judge Anti-Terrorism Court No.1, Lahore who vide judgment, dated 20-6-2002 while acquitting his co-accused convicted the appellant under section 302(b), P.P.C. read with section 7 of Anti-Terrorism Act, 1997 and sentenced him to death as well as to pay compensation amounting to Rupees one lac to the legal heirs of the deceased as required under section 544-A, Cr.P.C.

2. Calling in question the impugned judgment the appellant filed Criminal Appeal No.237/J of 2002 while the trial Court has made a reference (Murder Reference No.62/T of 2002) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.

3. Succinctly the prosecution case as narrated in complaint Exh.P.W.6/A lodged by Saad Ullah Khan, S.-I. is that on 12-8-2001 he along with his officials namely Habib Ullah and Muhammad Anwar, constables armed with klashnikov, Muhammad Tufail constable armed with semi-automatic rifle on official vehicle proceeded from police station in connection with investigation of case F.I.R. No.289 of 2001, dated 12-8-2001 for the offence under sections 7/21 of Surrender of Illicit Arms Act, 1991 registered at Police Station Khudian and arrest of the appellant and his co-accused Muhammad Aslam. When they reached near Motor Pani of Nasim Khan, within the revenue limit of village Dhillim the appellant and his co-accused who were sleeping on the cots on seeing the police party woke up. The appellant who was armed with .12 bore gun, directly fired at police party as a result of which Muhammad Tufail constable received fire-arm injuries on front of his left shoulder who fell on the ground. Muhammad Anwar constable in self-defence fired on the accused who after resorting to firing fled away. Muhammad Tufail injured was removed to the hospital who succumbed to the injuries on his way to hospital.

4. During the investigation from the spot one rifle .7 mm along with two bags containing 12 bullets of .7 mm and six cartridges were taken into possession vide recovery memo. Exh.P.W.9/B. The Investigating Officer also recovered one' empty cartridges from the spot which was taken into the possession vide recovery memo. Exh.P.W.9/B. The appellant was arrested on 16-9-2001, who on 24-9-2001 led to the recovery of gun. Both the articles i.e. empty cartridge and gun were sent to the Forensic Science Laboratory and the report in this regard is positive.

5. After completion of investigation, the Investigating Officer submitted challan before the trial Court where prosecution produced twelve witnesses including Muhammad Anwar P.W.9 and Saad Ullah (S.-I) P.W.10, the eye-witnesses of the occurrence, to prove the charge against the appellant.

6. Trial Court also examined the appellant under section 342, Cr.P.C. who while answering to the question, have you to say anything else? Replied as under:-- "I am innocent and has been falsely involved in this case due to suspicion, on the bald allegation. In fact I am labourer and in the days of occurrence was serving Naseem Khan alias Waseem Khan only for day time. Said Naseem Khan alias Waseem Khan and Nasir Khan had a dispute regarding piece of land which is place of occurrence. The Investigating Officer of this case and his subordinates were favouring Nasir Khan to grab this land. On the fateful dark night firing was started by Nasir Khan party, on witnessing the arrival of police employees there and dis-identifying them, members of party of Naseem Khan alias Waseem Khan and at the hands of unknown persons of Nasir Khan party. Muhammad Tufail deceased sustained the injuries. I had not participated in this occurrence. I resided at walking distance from the place of occurrence, in village Dhillim and as such there was no reason to stay of myself at the place of occurrence at night time, particularly when my job was for day time with my master Naseem Khan alias Waseem Khan. It is un-witnessed occurrence which took place at night time and there was no source of light to identify the assailants." The appellant did not make any statement under section 340(2), Cr.P.C. However, he produced in his defence copies of F.I.R. No.6 of 2002 Exh.D.C., F.I.R. No.178 of 2001 Exh.D.D. and F.I.R. No.210 of 2002 Exh. D. E. , all registered at Police Station Khudian.

7. Trial Court after appraisal of evidence available on record, vide judgment, dated 20-6-2002 convicted and sentenced the appellant as narrated earlier.

8. Learned counsel for the appellant submitted that it was a night occurrence and there was no source of light at the relevant time, thus the possibility that witnesses had not identified the real culprits could not be ruled out. Further submitted that according to the prosecution's own case at the relevant time indiscriminate firing was made and if the witnesses were present at the spot, then they should have also received injuries. It is submitted that the appellant had been falsely involved in this case and after his arrest the evidence of recovery was concocted just to strengthen the prosecution case. Thus, in the circumstances conviction and sentence of the appellant is liable to be set aside. Conversely, learned counsel for the State vehemently opposed the contentions raised by the learned counsel for the appellant.

9. After hearing the learned counsel for the parties and perusing the record, we have observed that this occurrence took place at 2-00 a.m. on 12-8-2001 in which Muhammad Tufail F.C. deceased who was a member of the raiding party, had received fire-arm injuries at the hands of the appellant and died at the spot. His post-mortem examination was conducted by District Standing Board and Dr. Safdar Ali, Surgeon D.H.Q., Kasur while appearing as P.W.1 has proved the post-mortem report prepared by the Board. We have observed that the formal F.I.R. was lodged within one hour of the occurrence containing all minor details. The promptness in lodging the F.I.R. is sufficient to rule out the possibility of false involvement and concoction.

10. Before the trial Court Muhammad Anwar P.W.9 F.C. and Saad Ullah P.W.10, S.-I. (complainant) while narrating the circumstances had unanimously stated that it was the appellant who had fired with his gun hitting Muhammad Tufail deceased on the right shoulder as a result of which he died at the spot. According to the site plan appellant had fired from a distance of one Karam which means both the parties were close to each other and there was no difficulty in identifying the assailants and thus, the arguments of the learned counsel about the non-availablity of the light at the relevant time for the identification of the assailant have become irrelevant. During the spot inspection one empty cartridge was taken into possession vide memo. Exh.P.W.9/B and the same was sent to the office of Forensic Science Laboratory on 8-9-2001. During the investigation appellant was arrested on 16-9-2001 who led to the recovery of crime weapon (gun) on 24-9-2001 which was taken into possession vide memo. Exh. P. W.9/D. Thereafter parcel of gun was also sent to the office of Forensic Science Laboratory on 20-2-2001. The report of Forensic Science Laboratory Exh.P.C. reveals that empty recovered from the spot was fired from the gun which was recovered at the instance of the appellant and renders ample corroboration to the ocular account. . Similarly the medical evidence supports the ocular account. The location, duration and nature and nature of injuries as narrated by the eye-witnesses stand affirmed by the medico-legal report prepared by the District Standing Board and this is yet another factor to strengthen the prosecution case.

11. The crux of the above discussion is that the prosecution has succeeded in proving its case against the appellant beyond any shadow of doubt. Accordingly, the instant appeal having no force stands dismissed. Death sentence is confirmed and the murder reference is answered in affirmative. H.B.T./R-38/L Appeal dismissed.