2007 PLP 317 (YLR)

SH. JAVAID SARFRAZ, J.

Muhammad Iqbal son of Pannu Khan was tried in case F.I.R. No.235-04, dated 6-6-2004 under sections 302, 353, 324, 186 and 224, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 (later on added vide Zimni No.2) registered at Police Station Sadar Kamonki District, Gujranwala by the learned Judge, Anti-Terrorism Court-I, Gujranwala, who vide judgment, dated 25-11-2004 convicted the appellant under section 302(b), P.P.C. read with section 7(a) of Anti-Terrorism Act, 1997 and sentenced to death with the further direction to pay Rs.1,00,000 as compensation to the legal heirs of deceased as required under section 544-A, Cr.P.C. The appellant was further convicted under section 353, P:P.C. and sentenced to undergo two years' R.I. In case of non-payment of fine, he was directed to further undergo six months' S.-I.

2. Feeling aggrieved the above-said conviction and sentence, the appellant has filed Criminal Appeal No.349-J-2004, through jail whereas the learned Trial Court has sent a Murder Reference under section 25 of the Anti-Terrorism Act, 1997 for confirmation or otherwise of the death sentence. Both these matters are being disposed of by this single judgment.

3. Briefly, the facts according to the complaint Exh.PH made by Muhammad, Ismail, A.S.-I. Police Statiion Tatlay Aali, Gujranwala to Aamir Hussain, S.-I./ S.H.O. Police Station Sadar Kamonke are that he along with Muhammad Arif, Muhammad Amin, Constables went to Police Station, Sadar, Kamonki for execution of non-bailable warrants of arrest issued against Muhammad Iqbal son of Pannu Khan appellant from the Court of Mr. Wamiq Javed, learned Additional Sessions Judge, Gujranwala in case F.I.R. No.147 of 2003 under sections 11 and 16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Tatlay Aali wherefrom Muhammad Arshad 419/C accompanied them and they all reached Dera Jammuwala Mauza Harpoki and deputed Muhammad Amin Constable for getting the information about said Iqbal, who on return informed that Muhammad Iqbal was standing on the grocery shop situated nearby his house. On his information, complainant with all police personnel visited grocery shop and Muhammad Amin signaled towards the present accused, who immediately took out his pistol and made a burst at Muhammad Amin, out of which two fire hit on his right cheek and he fell down on the ground in precarious condition. Efforts were made to arrest Muhammad Iqbal accused, but he after resorting to aerial firing decamped from the scene of occurrence. Muhammad Amin, Constable in injured condition was shifted to Civil Hospital, Kamokey but he succumbed to the injuries. The motive for the occurrence is that Muhammad Iqbal accused to avoid his arrest in the above-referred case made firing on the police party and fled away.

4. Amir Hussain, S.-I./S.H.O. P.W.11 is Investigating Officer of the case. He on 6-6-2004 receiving information about the occurrence reached in the Civil Hospital, Kamonkey at about 2-00 p.m. He recorded the statement of Muhammad Ismali, A.S.-I., Exh.PH and sent the same through Muhammad Iqbal, Constable to the Police Station upon which F.I.R. Exh.PA was recorded. He inspected the dead-body, prepared injury statement Exh.PJ, inquest report Exh.PK and application for post-mortem examination Exh.PL. He handed over the dead-body to Bahadar Shah and Ashiq Hussain, Constables for escorting the same for post-mortem examination and himself left for the place of occurrence. He secured 2 crime empties of pistol .30 bore P-6/1-2, blood-stained earth which were taken into possession vide memo. Exh. PF and Exh. PG respectively which were attested by Tahir Mehmood, S.-I. and Muhammad Younus, Constable. At the place of occurrence he recorded the statement of the witnesses. He prepared rough site-plan of place of occurrence Exh.PM and returned to police station where Bahadar Shah and Ashiq Hussain, Constable handed over to him the last-worn clothes of deceased Shalwar P-1, Qameez P-2, vest P-3, parana (handkerchief), one sealed phial said to contain two metallic pieces P-7 which were taken into possession vide memo. Exh.PD. On 10-6-2004, he got prepared site-plan in triplicate Exh.PC, Exh.PC/1 by Masood Ahmad Bhatti, Draftsman. On 23-6-2004, he arrested Muhammad Iqbal accused who while in police custody led to the recovery of .30 bore pistol P-5 which was taken into possession vide memo. Exh.PE and made rough site-plan of place of recovery Exh.PE/1. He also prepared complaint Exh.PN and dispatched the same to police station through Moharrir for recording formal F.I.R., which is Exh. PN/

1. He completed the investigation, formalities etc. and submitted challan in the Court under section 173, Cr.P.C.

5. Irshad Hussain, A.S.-I. P.W.1 on 6-6-2004 while acting as Deputy Officer got recorded F.I.R. Exh.PA. Dr. Captain Muhammad Munir Hussain, Additional principal Medical Officer, THQ, Kamonke while appearing as P.W.2 stated that on 6-6-2004 he conducted post-mortem examination on the dead-body of Muhammad Amin and found following injuries on his person:-- (1) A lacerated wound 3 x 1 c.m., bones exposed on the top of front of forehead. (2) A fire-arm lacerated wound of entry 1-1/2 x 1-1/2 cm on the right side of face going deep, about 1-1/2 cm away from right nostril. (3) A fire-arm lacerated wound of entry 1-1/2 x 1-1/2 cm going deep on right side of face, about 3/4 cm distance on outer side of Injury No.2. In the opinion of the doctor death in this case was due to brain damage, in consequence of Inquiries Nos. 2 and

3. Brain is a vital organ and its damage is sufficient to cause death in ordinary course of nature. Injuries Nos. 2 and 3 both were fatal while Injury No.1 was not fatal (Shujja Maddiah). Injury No.1 was due to some blunt weapon. Injuries Nos.2 and 3 were due to fire-arms. All the injuries were ante-mortem in nature. Probably, death occurred within 15 minutes, after injuries. He produced Exh.PB correct carbon copy of the post-mortem examination.

6. Masood Ahmad Bhatti, Draftsman P.W.3, on 10-6-2004 inspected the place of occurrence and prepared Exh.PC and Exh.PC/1 and thereafter handed over the same to the Investigating Officer Muhammad Mushtaq, P.W.4 identified the dead-body of Muhammad Amin. Muhammad Irshad P.W.5 on 27-6-2004 got recorded his statement with the police and also signed as a witness of recovery which is Exh.PE. Muhammad Younis P.W.6 is the signatory of Exh.PF and Exh. PG. Khalil Ullah Moharrir P.W.7 kept the articles in the Malkhana intact and handed over to the concerned person for onward transmission of Forensic Science Laboratory, Lahore. Ashiq Hussain, Constable P.W.8 on 6-6-2004 went to the Hospital with the investigating team wherein Shalwar P-1, Qameez P-2, Bunnian P-3 and Parna P-4 were handed over to the Investigating Officer which were taken into possession vide memo. Exh. PD. He received a parcel from the doctor containing two led bullets, crime empties, blood-stained earth and handed over to the Moharrar, and thereafter the Forensic Science Laboratory, Lahore, Muhammad Ismail, A.S.-I. P.W.9 is the complainant of the case and narrated the F.I.R. story in verbatim. He is the signatory of Exh.PH. Muhammad Arshad, Constable P.W.10. On 6-6-2004 accompanied Muhammad Ismail, A.S.-I. and supported the prosecution story as set in the complain.

7. The prosecution closed the evidence by tendering in evidence report of Chemical Examiner, Serologist and FSL Exh.PO, Exh.PP and Exh. PQ.

8. Statement of accused under section 342, Cr.P.C. was recorded, in which in reply to question why this case against you? And why the P.Ws. have deposed against you? he replied as under:-- "I have moved application against Qutab, Din, A.S.-I. of Police Station Tatlay Aali before Anti-Corruption Establishment and he was summoned to face inquiry on my application. The employees of police were pressurizing me to withdraw- my application otherwise, I would be done to death in police encounter. On 6-6-2004, I was coming to house after irrigating my land, I saw that my young daughter was being dragged outside my house by a person who was in civil dress after trespassing into my house. I lodged protest and grappled with the deceased to release my daughter. At that time, one companion of deceased who was also in civil dress whose name later on, was known as Muhammad Ismail, A.S.-I. pulled out pistol underneath his shirt and fired upon which hit the deceased and he sustained fir arm injuries. Muhammad Ismail, A.S.-I. to avoid the legal liability attributed the role of firing and murder to me. At that time, all the shops which were adjacent to the place of occurrence were opened but as they were not supporting the prosecution story and for that very reason; none of them had been cited as witness of occurrence and they were also not allowed to join the investigation."

9. In order to prove his defence plea the appellant produced Abdul Hameed, D.W.1, Muhammad Akram, D.W.2 and also appeared as D.W.3, under section 340(2), Cr.P.C. D.W.1 and D.W.2 supported the defence plea put forth by the appellant.

10. After conclusion of the trial, above-mentioned conviction and sentence was passed. Hence this appeal.

11. Learned counsel for the appellant submitted that P.W.10 was not present at the place of occurrence; that the alleged occurrence took place in front of grocery shop and its owner has not been produced as a witness; that glaring contradictions are visible in the statements of P.W.9 and P.W.10; that non-bailable warrants of arrest issued against the appellant were not shown to him; that the case against the present appellant is false, frivolous and prosecution has miserably failed to prove the case against him.

12. Learned Special Prosecutor rebutted the arguments of the learned counsel for the appellant and supported the judgment of the learned trial Court and prayed for the dismissal of appeal and confirmation death sentence.

13. Arguments heard and record perused.

14. The prosecution has relied upon two eye-witnesses namely Muhammad Ismail P.W.9 and Muhammad Arshad P.W.10.

15. The appellant Muhammad Iqbal was accused in case F.I.R. No.147-03 registered at Police Station Tatlay Aali under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and against him non-bailable warrants of arrest had been issued by a learned Additional Sessions Judge, Gujranwala. On 6-6-2004 the police party comprising of Muhammad Ismail, A.S.-I. P.W.9, Arif and Muhammad Amin (deceased) both constables of Police Station Tatlay Aali went to the Police Station Saddar, Kamonki for this purpose. After making necessary entries in the Roznamcha by the complainant in this case, Muhammad Arshad P.W.10 went along with the said police party to Dera Jammuwala Village Harpoki at about 12-30 noon. Muhammad Ismail P.W.9 deputed Muhammad Amin, Constable (deceased) to trace Muhammad Iqbal appellant. On his report, Muhammad Amin informed the complainant that Muhammad Iqbal appellant was standing in front of a grocery shop near his house. On this information, all the members of the police party visited the grocery shop and Muhammad Amin deceased pointed towards Muhammad Iqbal appellant, on which fearing his arrest the appellant fired two shots from his pistol hitting Muhammad Amin on his right cheek. The police party made an attempt to arrest the appellant but he managed to escape. F.I.R. was registered on the same day i.e. 6-6-2004 within minutes of the alleged occurrence at 12-30 p.m. This would show that F.I.R. was promptly registered, thus there exists no chance of any false involvement of the appellant. He was arrested on the next day. The presence of P.W.9 and, P.W.10 is natural because P.W.9 was there for the service for non-bailable warrants of arrest against the accused and he had gone to the Police Station, Kamonki, from where he had taken Muhammad Arshad Constable for his purpose. Both the witnesses were on official duty. These witnesses have no ill-will against the appellant and there did not exist any reason to involve the appellant falsely. Both these witnesses are trustworthy, reliable and during lengthy cross-examination which they had faced while recording evidence, their statements have remained unchanged/unshaken. Their evidence inspire confidence. Both these witnesses have narrated the exact occurrence giving minutest details. The Investigating Officer, inspected the place of occurrence and on the same day i.e. 6-6-2004 he secured two empties of pistol .30 bore P-6/1/2, which were secured vide memo. Exh.PF, which was duly signed by Muhammad Yonous P.W.6 and Tahir Mahmood S.-I. similarly, the Investigating Officer collected the blood-stained earth which was taken into possession vide Exh.PG which was also witnessed by Muhammad Younus P.W.6 and Tahir Mahmood, S.-I. after arrest of the appellant, he led to the recovery of .30 bore pistol P-1 from iron chest and produced the same before him. This was secured vide recovery memo. Exh.PE, which was duly witnessed by Muhammad Irshad P.W.10 and Qamar Shahzad. The Investigating Officer sent the crime empties to the Forensic Science Laboratory and parcel of blood-stained earth was sent to the Chemical Examiner. According to the report of Chemical Examiner, Exh.PO, the earth was stained with blood and Serologist report vide Exh.PP that the earth was stained with human blood. The Forensic Science Laboratory Exh.PQ compared the crime empties of .30 bore with the pistol and both the crime empties were marked as C-1 and C-2 and according to their report C-1 had been fired from the pistol .30 bore No.D-536. However, second empty of .30 bore marked as C-2 was without percussion cap, therefore, the identification was difficult. Dr. Capt. Munir Hussain, who performed the post-mortem examination on the dead-body of deceased have stated that Injuries Nos. 2 and 3 caused by fire?arm/entered into the brain which was damaged and two foreign bodies remnants of pallets/fire arms were found in the brain. According to the opinion of the doctor, the death was due to brain damage. This medical report corroborates with the ocular account.

16. The motive has been clearly established by the prosecution, the appellant was an accused in case F.I.R. No.147 of 2003 under section 11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, therefore, apprehending his arrest and to avoid the same he fired two bullet shots towards the deceased which damaged his brain resulting into his death. Learned counsel for the appellant has raised an 'objection that the alleged occurrence has taken place in front of the grocery shop while the owner of the said shop was not produced as a prosecution witness. Suffice to say that a person who is not directly involved in a case; does not wish to get himself involved in it by appearing as a witness. There may be some minor contradictions in the statements of P.W.9 and P.W.10 but these contradictions are not of serious nature and minor contradictions do appear in such like cases. Another argument of the learned counsel for the appellant that non-bailable warrants of arrest were not shown to the appellant is also not of any help to him. The appellant very much knew that he was required in the case registered against him under Hudood Ordinance, therefore, he knew that these persons had gone there on this account.

17. The appellant has produced two witnesses D.W.1 and D.W.2 and he himself appeared ad D.W.3. In his statement under section 342, Cr.P.C. in the Court, he stated that he had moved an application against Qatub-ud-Din, A.S.-I., Police Station, Tatlay Aali to the Anti-Corruption Establishment and he was to face inquiry on his application. The employees of the police were trying to pressurize him for the withdrawal of that applicant and he was being threatened that he would be murdered if he did not withdraw the application. It is also his case that on 6-6-2004, he saw that his young daughter was being dragged out of house by a person in civil dress and he grappled and one, Muhammad Ismail, A.S.-I. fired at him but he missed hit and the bullet hit the deceased Muhammad Amin who died because of fire-arm injury. In support of this defence, the appellant has produced D.W.1 Abdul Hameed and Muhammad Akram D.W.2. However strangely enough, the real daughter who was alleged to have been dragged by the police has not appeared as defence witness, neither her name has been mentioned throughout the proceedings. This plea was never taken earlier and appears to be an afterthought. After having examining this plea of defence, we are not impressed with this plea advanced by him.

18. We find that motive, medical, recovery of empties supported by the ocular account, proves that the appellant is guilty of the offence of which he is so charged and the prosecution has successfully proved the case.

19. For what has been discussed above, we feel that the appellant has been rightly convicted by the learned Trial Court and we do not find any mitigating circumstances, under the facts and circumstances of the case to reduce the sentence. Accordingly, the appeal is dismissed, while maintaining the conviction and sentence we confirm the death sentence awarded to him by the learned Trial Court. Murder reference is accordingly replied in affirmative. H. B.T./M-551/L???????????????????????????????????????????????????????????????????????????????? Appeal dismisse