Ali Nawaz Chowhan, J.--This judgment shall dispose of Cr1. Appeal- No 301-J/2002, CH.' Appeal No 1237/2002 as well as Murder Reference No 72-T/2002, as these arise out of the same judgment dated 6.7.2002 handed down by Mr. Gulshad Hassan Alvi, learned Special Judge Anti-Terrorism Court, Sargodha, whereby he convicted Iqbal Shah and Abdul Rehman under Section 302(b) PPC for the murder of Ashiq Ali and Shafqat Ali, Constables and sentenced each of them to death on each count and further asked them to pay Rs, 2,00,000/- each under 'Section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased as compensation and recoverable as arrears of land revenue or in default to undergo six months S.I.
3. Abdul Rehman & Iqbal Shah, appellants were convicted under Section 324 PPC read with Section 34 PPC for launching murderous assault on Alam Sher, Muhammad Ramzan and Atta Ullah, Constables and sentenced to 10 years' R.I. each with a fine of Rs, 50,000/-, which if recovered, was to be paid to aforementioned three injured Constables in equal share under Section 544-A Cr.P.C. or in default thereof they are to further undergo three years R.I. each.
4. Appellant, Abdul Rehman was additionally convicted under Section 392 PPC for snatching the rifle G-III from Bashir Constable and was sentenced to 10 years, R.I. with a fine of 10,000/-, or in lieu thereof to undergo one year R.I. He was acquitted under Section 411/412 PPC.
5. Iqbal Shah and Abdul Rehman, appellants were convicted under Section 224, PPC and were sentenced to two years' R.I.
6. Iqbal Shah and Abdul Rehman, appellants were further convicted under Section 353 PPC read with Section 34 PPC and were sentenced to two years' R.I.
7. Iqbal Shah and Abdul Rehman, appellants were additionally convicted under Section 7 clause
(a) of Anti-Terrorism Act, 1997. Abdul Rehman was sentenced to death, whereas Iqbal Shah was sentenced to life imprisonment. They both were also sentenced to pay a fine of Rs, 50,000/- separately and in default thereof to further undergo imprisonment of three years' R.I.
8. For causing grievous hurts to Alam Sher, Muhammad Ramzan and Atta Ullah, Constables Abdul Rehman and Iqbal Shah, appellants were convicted under Section 7 clause (c) of the Anti Terrorism Act, 1997 and each were sentenced to life imprisonment and to a fine of Rs, 25,000/-, in default thereof they were to undergo two years R.I. All the sentences given to them were to run concurrently and wherever possible, the benefit of Section 382-B, Cr.P.C. was to be given to them but not in case of sentence of fine and compensation.
9. Karam Shah was awarded sentence of imprisonment of life on two counts under Section 302(b), PPC read with Section 34, PPC for supplying fire-arms to his brother Mukhtar Shah, who was later killed in police encounter. He was also convicted under Section 324, PPC read with Section 34, PPC on three counts for committing murderous assaults on three P.Ws., Alam Sher, Ramzan and Atta Ullah and sentenced to 7 years' R.I. on each count and was asked to pay a fine of Rs, 10,000/- on each count and in lieu thereof to undergo one year R.I. on each count. He was further convicted under Section 353, PPC read with Section 34, PPC and was awarded sentence to one year imprisonment. Against another conviction under Section 225, PPC, he was sentenced to two years'
R.I. He was anyhow acquitted of the charge under Section 395, PPC.
10.The matter pertains to case FIR No, 66, dated 18.3.2004, registered under Section 302/324/395/353/224/109/412/148/149 PPC, registered at P.S. Khushab, District Khushab.
11.The occurrence relates to 18.3.2002 in a prisoner's van having about forty seats. In which fifty seven under trial prisoners and police constables were being commuted back to jail when the occurrence took place.
12.It is stated that the search of the under trial prisoners was not done by Raza Khan, ASI, at the time when they were boarding the van, although he was told to do so.
13.Muhammad Afzal, Constable (PW-21), who is complainant in this case narrated the incident of this return journey from the Court to Jail, wherein he mentioned about how the occurrence took place, which he was watching from the driver's mirror. He said: At about 3.00 p.m. we reached near New Fruit Market Khushab. I heard the hue and cries in the Bus.
I applied the brake and looked back and witnesses that accused Iqbal Shah was standing and throwing grinded chillies in the eyes of police guard. When police officials endeavoured to forbid him, then accused Mukhtar Shah, Nasrullah and Abdul Rahman Lohar stood up. Accused Nasrullah was armed with .30-bore pistol and he discharged fire shot which hit Shafqat Ali Constable on his left flank. The fire shot of accused Mukhtar Shah with .12-bore Carbine hit Muhammad Ramzan Constable on the back of right side. Accused Abdul Rahman Lohar fired with .12-bore Carbine hitting Ashiq Ali Constable in his abdomen. Accused in some other case namely Abdul Rahman Chadoo stood up and asked the accused persons that whey they were Bring at police and attempted to stop them, then he received fire-shot injuries at the hands of accused Mukhtar Shah and Nasrullah. When Atta Ullah Constable got up and exhorted the accused not to move towards door of police Van, then accused Mukhtar Shah fired hitting him under the left side rib and he fell down. When Alam Sher Constable got up and tired to obstruct the accused from moving towards the door of Bus then accused Abdul Rahman Lohar fired which hit him on his left flank. Accused Mukhtar Shah took the rifle G-III of Shafqat Ali injured Constable and accused Abdul Rahman snatched rifle G-III from Bashir Constable No,
178. Thereafter accused opened the door and seven of the accused namely Mukhtar Shah, Maqbool and Mahboob, Pervez, Nasrullah, Iqbal Shah and Abdul Rahman Lohar fled away towards north-east Some of the Police Constables went to chase the afore-mentioned seven, accused persons and the remaining police employees and myself took the Police Van to the police-station alongwith the injured and other under-trial prisoners, where I made my statement Ex.PZZ and FIR was chalked."
14. The following excerpts from his testimony being relevant are 'produced below:- "When the police guard. and the under trial prisoners boarded the police Bus, I was already in the Bus. There were 22-members of the police guard including me. Five members of the police guard were armed. It is incorrect to suggest that all the members of the police guard were equipped with fire-am. At the time of boarding the under-trial phsoners in Police Bus the Elite Force was inside the Bakhsi-Khana. On that day one of those under-trial prisoners boarded in Police Bus, was sentenced to death and on to 25 years. R.I. No special measure of security were adopted on that day in view of conviction of one of the under-trial prisoners sentenced to death."
"When the accused are boarded in Bus from Bakhshi-khans they are under hand-cuffs. The chain of the hand-cuffs is usually in the hands of a Police Constable. The chain of the hand-cuffs would be five feet, and Police Constable with the custody of that chain at a distance of five feet from that accused. The members of the police guard, were not sitting separate from the accused in that Bus.
That police Bus had forty seats. There were 5.7 persons in that Bus including the under trial prisoners and police Guard. Some of the under-trial prisoners were standing in the Bus, but I cannot tell the names of the standing persons. I do not remember who was-hand-cuffed with accused Abdur Rehman Lohar. Deceased Ashiq Ali Constable and Liaquat Hayat Constable were sitting near accused Abdul Rehman Lohar. They were not armed but had the keys. Bashir Constable No, 178 armed Guard was sitting near accused Abdul Rehman. Bashir Constable No, 178 was not injured in the occurrence. Accused Abdul Rehman and accused Mukhtar Shah had been hand-cuffed together. The chain of these accused was not in the hand of any Constable because when the under-trials prisoners are boarded in the Bus, the Chains of hand-cuffs are left.
"There is a mirror before the driver to see the inner side of the Bus. I do not rernernber the seat numbers on which accused Iqbal Shah, Mukhtar Shah and deceased Ashiq All Constable were sitting. Again said that accused Iqbal Shah was sitting on third seat from me and police constables were sitting after him."
15.His testimony was corroborated by eye-witnesses, who were police Constables and who suffered injuries during the episode. These were Muhammad Ramzan (PW-22) and Atta Ullah (PW- 23).
16.Some excerpts from the statement of Muhammad Ramzan further explains the factual position, which is reproduced as under: "Accused Mukhtar Shah fired with 12-bore Carbine which hit me on right side of my back. Accused Abdul Rahman Lohar fired at Ashiq Ali Constable deceased which hit him on the front of his abdomen. One of the under-trial prisoners namely Abdul Rehman Chadoo asked the accused persons not to fire, whereupon he sustained injuries from the firing of Mukhtar Shah and Nasrullah, and he fell down. Accused Abdul Rahman Lohar fired at Alam Sher Constable which hit on his left flank. Accused Mukhtar Shah again fired which hit Atta Ullah Constable under his left rib, on flank.
Accused Mukhtar Shah snatched the rifle G-III from deceased Constable Shafqat Ali and accused Abdul Rahman Lohar snatched the rifle G-III from Bashir 178-C. Whereafter accused Mahboob, Maqbool, Abdul Rahman Lohar, Iqbal Shah, Nasrullah, Mukhtar Shah And Pervez fled away opening the door of the Bus."
17. Jehan Khan Inspector/SHO, Police Station Khushabon upon receiving information about the occurrence, recorded the statement of Muhammad Afzal, PW and went after the accused, who after escaping from, the prisoners van were taking cover in a sugarcane crop on the Sandral road.
The following excerpt from his statement is relevant: "I received information that accused Mukhtar Shah (since dead), Nasrullah (since P.O.), Abdul Rahman, Iqbal Shah Pervez, Mahboob and Maqbool were in Sugar-cane crop at Sandral road. I took into possession the stolen Motorbike left by the accused from that link road. The Sugar-cane cror was encircled. Accused were warned to surrender but accused opened the fire at police party from Sugar-cane field. I also ordered the police officials to fire in self protection. After encounter for some time, accused Abdul Rahman, Iqbal Shah, Pervez, Mahboob and Maqbool came out of Sugar-cane field in an injured condition, whereas accused Nasrullah and Mukthar Shah managed to decamp."
18.The following excerpts from his testimony is also important and is reproduced below: "I collected five empties of 12-bore cartridges, P16/1-5, four empties of 30-bore P17/1-4, I sealed the empties of 12-bore and seized those vide recovery memo Ex.PSS, I also sealed the empties of 30- bore into a parcel and seized those vide Ex.P.TT. I had sealed the bloodstained cotton of Muhammad Ramzan, of Alam Sher, of Atta Ullah, of Abdul Rahman Chadoo, of Ashiq Ali and Shafqat Ali into different parcels and put those parcels into possession vide respective recovery memos Ex.P.JJ, Ex.P.KK, Ex.P.LL, Ex.P.MM, Ex.P.NN." "I had recovered the empties from inside the Sugarcane field but not the fire-arms. That Sugarcane field was of Gul Muhammad S/o Sher Muhammad Awan, and that Gul Muhammad is P.W. in this case. On 25.3.2002 I recovered the Carbines and G-III rifle at the instance of accused Abdul Rahman and Iqbal Shah from the same Sugarcane field where from the empties were recovered on 18.3.2002. The empties from Sugarcane field on 18.3.2002 were not recovered on the pointation of accused. Again said that I had recovered the empties from Sugarcane field on the pointation of accused. On that day the fire-arms could not discovered despite search. 20/25- police officials were with me at the time of besieging the Sugarcane crop. All the police officials had searched the Sugarcane field but the firearm could not be recovered."
19.On 19.3.002 when he had already arrested lqbal Shah, Abdul Rahman, Maqbool and Mehboob through Zameer ul Hassan, S.I., he obtained their physical remand. Shafaqat Ali, Constable died in the hospital on the same day. He then proceeded for the arrest of Nasrullah when he learnt' about the death of Mukhtar Shah in police encounter and obtained the record. Ashiq All Constable succumbed to injuries on 20.3.2002. He drew his inquest report, injury statement and sent his body for autopsy. Maqbool, accused got recovered the hand cuffs on 24.3.2002 from the land of one Sher Khan and taken into possession vide memo Ex. PQ. Abdul Rehman got recovered the hand cuffs, which were taken into possession vide memo Ex. PR. lqbal Shah also got recovered his land cuffs and these were taken into possession vide memo Ex. PS. The SHO drew site plan of the place of recoveries 20.Abdul Rehman on 25.3.2002 got recovered .12 bore Carbine and G-III rifle from fields from where the hand cuffs were recovered. These were taken into possession vide Ex.PU.
21.Iqbal Shah got recovered .12 bore Carbine from the Sugarcane crop and taken into possession vide memo Ex.PV.
22.On 25.3.2002 Karam Hussain Shah was arrested and warrants for arrest of Nasrullah were obtained.
24.When Muhammad Anwar, Inspector/SHO learnt about Mukhtar Hussain Shah hiding in a locality in Jauharabad on 19.3.2002. He at about 6:00 p.m. proceeded for his arrest. The accused started firing at the police. The SHO ordered the police officials to return the fire in self-defence. This killed Mukhtar Shah there and then.
25.Dr. Mazhar-ul-Islam conducted post-mortem examination of Ashiq Ali Constable on 20.3.2002 and found the following injuries:--
1. Nine entry wounds (fire-arms) (1/2)x (1/2) cm each on anterior abdominal wall, amongst those 7 were present in epigastric region and two in umblicus region.
2. A laceration skin deep was present on dorsal aspect of left hand size was 3 x 1 cm.
3 A stitched surgical wound in midline 15 cm length that was starting from epigastric region.
4. An ileostomy wound was present in right iliac fosa.
5. Two holes of surgical drain were present in both flanks of abdomen."
26. He gave the following opinions about these injuries while recording his post-mortem report Ex.P.A. "In our opinion all the injuries were ante-mortem. Injuries described under Injury No, 1 were caused by fire-arm weapon. Injury No, 2 was by blunt weapon. Injury Nos, 3 and 4 by Surgical wounds.
Injury No, 1 was fatal enough to cause haemorrhage, sepises and shock which lead to death in ordinary course of nature."
27. He had medically examined Shafqat Ali on 18.3.2002, who later expired. His autopsy was conducted by Dr. Ajmal Nadeem Niazi on 18.3.2002 (PW-8). The following injuries were found on his persons:--
1. "An oval shape entrance wound of fire-arm projectile 1 x 3/4 cm on front of left loin in anterior axiliary line 2 cm below right costal margin.
2. An exit wound (1/2) x (1/2) cm on back of right chest in 9th inter costal space, 13 cm right to midline.
3. A lacerated grooved wound 5 x 1 cm on top of vertex of skull, underline bone was exposed in central part of goof."
28. The following was the opinion of Doctor with respect to these injuries: "In our opinion all the injures were ante-mortem and by fire-arm projectile. Injury No, 1 was entrance and Injury No, 2 was the exit of Injury No,
1. Injury No, 1 was sufficient enough to cause the death by bleeding, shock and death in ordinary course of life. The probable time between injuries and death was about(1/2) hour and between death and P.M. examination was about six hours."
Exh. P.H. is post-mortem repot in elation to the deceased.
29. Dr. Mazhar-ul-Islam on 18.3.2002 had examined injured PW Ramzan, PW who had suffered the following injury: "Multiple entry wound (1/2)x (1/2) cm associated with blackening on the back of right chest. The injuries were six in number. Two injuries were lying just lateral to mid-line and four on the back of shoulder blade.
Ex.P.M. is MLR recorded by him.
He also examined Alam Sher on the same day and who was suffering from the following injury:--
1. A wound of entry (1/2) x (1/2) cm on the back of left chest, omentum was protruded out."
Ex.P.N. is MLR recorded by him.
Abdul Rehman, PWr in this case too was medically examined. He was having the following injuries on his person:--
1. "A fire-arm wound of entry (1/2) x(1/2) cm on the back and upper side of head:
2. A wound of entry (1/2)x (1/2) cm on the back of right ear.
3.An incised wound which was muscle deep was present above the Injury No, 2 and size was (1/3) x (1/2) CM.
Exh.P.M. is the MLR recorded by him in connection with the examination of Abdul Rehman PW.
30. The full details about the post-mortem examination and the Medico Legal repot is given in the testimony of the Doctor.
31. Amongst the formal witnesses, we have Naseer Hussain Moharrar, who had kept the parcel of the case property in the Malkhana in safe custody on 18.3.2002 and later delivered these for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory on 20.3.2002 to Aftab Bashir. He had also received on 25.3.2002 a parcel containing a Carbine and another containing G-III rifle, which he kept in the Malkhana and later handed over the same to Shah nawaz Constable for onward transmission to the office of Forensic Science Laboratory. PW-4 affirmed this fact. The same was the case of Aftab Bashir (PW-5). Shaukat Ali had identified the dead body of Ashiq, whereas, Muhanimad Iqbal identified the dead body of Shafqat. Mirza Muhammad Saeed was the draftsman, who prepared the site-plan Ex.PK with relation to the main occurrence.
32.On 24.3.2002 Muhammad Mukhtar ASI had effected recovery of hand cuff from Maqbool, which Maqbool had hidden in the fields of Sher Khan. The police party was headed by Malik Jehan Khan, Inspector. The recovery of hand cuffs P-1, P-2 and P-3 was effected that day from Abdul Rehman and Iqbal Shah. Noor Muhammad, ASI was the recipient of the last worn clothes of Shafqat and Ashiq which he took into possession vide memos PCC/PDD Zameer ul Hassan had taken the injured to the hospital. He also received the last worn clothes of the two deceased. He had written the inquest report with respect to Shafqat Ali and got his autopsy conducted. Ghulam Abbas Head Constable witnessed the recovery of securing bloodstained earth from six places and attested the six memos. Saif Ullah Constable is the recovery witness of a Carbine and G-III rifle from Abdul Rehman. .12 bore Carbine was got recovered by Iqbal Shah. He went with the police party for the arrest of Karam Shah, who was arrested that day. Muhammad Islam, SI recorded the statement under Section 161, Cr.P.C. of Muhammad Ramzan PW while he was in an injured condition.
33.Yar Muhammad (PW-17) had seen the activities of Karam Shah, who had supplied the fire- arms and chillies to the under trial prisoners. The relevant excerpts from his statement are as under: On 18.3.2002 I and P.W Muhammad Ramzan s/o Rab Nawaz were in Court premises as I had gone to consult my counsel and at about 2.30 p.m., we were taking tea at a Tea-Stall near Bakhshi khana. Meanwhile accused Karam Shah now present in the Court arrived and sat near us. We knew him previously as he and we used to visit the Courts. He placed the bag on a Chair and himself turned towards north. He took out the clothes from that bag and placed two Carbines, one .30-bore pistol and 7 rounds in the clothes. He put those clothes and a Chadar of Naswari colour in shopper alongwith a packet of grinded chillies. Meanwhile the under-trial prisoners came out from Bakhshi- Khana and when they started boarding the Bus of police, accused Karam Shah delivered that bag to accused Mukhtar Shah (since dead). We thought to disclose this fact to police but in the meantime that police Bus started and moved away. On that evening we came to know about this occurrence."
34. In their statements under Section 342, Cr.P.C., the case of the accused was one of denial but they gave no alternate story and merely explained that the occurrence had taken place due to police negligence.
35. There were seven persons involved in the occurrence, out of which five persons were charged.
Nasrullah remained a proclaimed offender while Mukhtar Shah met his death during investigation as explained above.
36. Learned counsel appearing on behalf of the appellants had made the following submissions:--
(a) That there is nothing stated in the medical examination with respect to injured Constable having suffered any injury due to the throwing of chillies by Iqbal Shah accused and that this contradicts the story prosecution with respect to the occurrence.
(b) Learned counsel for Abdul Rehman appellant stated that the hand cuffs and fire-arm were recovered from him on different occasions from the same place which gives rise to inference of padding by the police with respect to the recoveries.
(c) The next argument was that the bus was admittedly over crowded and the standing passengers blocked the view making it difficult for eye-witnesses to observe the episode as was stated by them.
37.On the basis of these arguments, learned counsel for Abdul Rehman pleaded that as there was a melee and confusion in the over crowded van the role attributed to Abdul Rehman was ridden with some doubts, therefore, he deserved concession of mitigation in the sentence in view of safe administration of justice.
38.Except for accused Karam Shah who is said to have passed on chillies and the weapons to the accused, the rest were within the van at the time of occurrence as they were under trial prisoners.
There is no denial about the occurrence. We also find that there is no enmity between the injured PWs, who were police officials and the accused, under trial prisoners. The possibility of substitution, therefore, which is even otherwise, a rare phenomenon is excluded.
39.It is possible that throwing of chillies had its over all effect of creating a panic without injury the eyes of the passengers and, therefore, the Doctor did not notice any such injuries.
40.Many episodes do speak for themselves and give rise to a presumption until these are effectively rebutted. The Supreme Court of India in the case reported as Gobald Motor Service Ltd. and another v. R.M.K. Veluswa mi and others (AIR 1962 SC 1) while following the principle of Res ipsa Loquitur referred to in the case 2 All. ER 460 observed as follows: "Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off-side uprooting the stone at the drain and attacking a tamarind-tree 25 feet away from the said stone with such a velocity that its back was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to a presumption that the accident was caused by the negligence of the driver."
41.Some doubts are inherent in a case. Some arise because of presumption and the third category of doubt is one which is created. But doubts are not created merely through a callous and bald denial as has happened in the present case.
42. The principle that benefits of doubts must be given to the accused is not applicable to the case where after considering the entire evidence the Court is convinced beyond all reasonable doubt that the prosecution case is acceptable. Reference in this connection may be made to the case of Prabho'o AIR 1965, Allahbad 417 and Bharosa and others v. The State (AIR 1941 Allahbad 402 (FB)).
43.It is the business of the prosecution to establish guilt of the accused; but the doubt the benefit of which an accused is entitled to must be, such as rational thinking; sensible men may fairly and reasonably entertain. It does not bring within its ambit doubts of a vacillating mind and based on ideal skepticism. Therefore, a doubt should be a doubt which may be honestly and conscientiously entertainable.
44.The accused in the bus were also witnesses of the occurrence and were in a position to place on record facts advancing their case of different probabilities. When a person is in possession of stolen goods, he has the knowledge of its background and has to explain how it came to his possession. [Wall Muhammad v. The State (PLD 1957 Lahore 261)]. Likewise, people having a special knowledge of any event do owe a burden of offering an explanation and, when we speak of explanation, it means a plausible explanation not a mere denial simplicitor. Of-course, such explanation is not meant to shift the burden of proof which always rests with the prosecution. It is only meant to create an impact for giving rise to an inference suggestive of other probabilities and doubts regarding the prosecution story.
45.This burden of explanation is discharged through the process of cross-examination and statements to be made under Section 342 or 340(2), Cr.P.C.
46. The manner in which recoveries were effected from the accused should not be a matter of surprise in view of the peculiar circumstances of this case involving desperate criminals. Whereby, the police was put to difficulty in effecting the recoveries at one go from the same Sugarcane field.
The prosecution story, therefore, appears natural, truthful and plausible.
47.The ocular account makes it a plausible story and we believe it while we are sorry to observe that there was a scant check at the time when the under trial prisoners were boarding the van. It is stated that this was not through inadvertence but due to a deliberate act and design and the person responsible for facilitating the delivery of weapons and chillies to the accused was one ASI Raza Khan. What has happened to him is not known.
48.After hearing both the sides and giving our anxious considerations to the erudite arguments of Mr. Muhammad Asghar Khan Rokhari, learned counsel for the appellant and after going through the record, we are of the view that the prosecution has established its case fully. We, therefore, dismiss the appeal, uphold the judgment of the learned trial Court and return the reference in the positive.