' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.---Appellant Shabbir Ahmad along with Shahbaz alias Kudda was tried in case F.I.R. No,264 of 2001, dated 13-9-2001 registered under sections 186/216/ 302/324/332/353, P.P.C. Read with section 7, Anti-Terrorism Act, 1997 at Police Station Narang District Sheikhupura by the Special Judge, Anti-Terrorism Court No, IV, Lahore who vide judgment, dated 5-5-2004 while acquitting his co-accused convicted the appellant under section 302(b), P.P.C. Read with section 7-A, Anti-Terrorism Act, on two counts i.e, for the murder of Liaquat Ali H.C.
And Rana Farooq, S.I. And sentenced to death as well as to pay compensation amount of Rupees one lac to the legal heirs of each deceased or in default whereof to further undergo R.I. For six months on each count. He was also convicted under section 324, P.P.C. Read with section 7(c) of the ATA and sentenced to undergo seven years' R.I. As well as to pay a fine of Rs,20,000 or in default whereof to further suffer R.I. For six months. He was further convicted under section 7(h) of ATA, 1997 and sentenced to three years' R.I. And to pay a fine of Rs,10,000 or in default whereof to further undergo, six months' R.I. Benefit of section 382-B, Cr.P.C. Was also extended in his favour.
2. Challenging his conviction and sentence the appellant filedCriminal Appeal No,282-J/2003 while the Trial Court has made a reference (M.R. 22-T/2003) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.
3. Precisely the prosecution story as narrated in F.I.R. Exh. PL lodged on the written complaint Exh.PV of Muhammad Razzaq, S.I. P.W.18 is that on 13-9-2001 at about 4.00 p.m. He along with other police officials armed with fire-arms were present at Mehta oja in connection with petrol duty, when a 'secret information was received that some proclaimed offenders namely Azhar alias Dana, Mushtaq alias Malung and Shabbir Ahmad (appellant) were present at the dera Kakhran wala within the area, of Bhool Chak. On receiving information the raiding party along with informer reached the said dera and on seeing the police party accused while firing entered into the peddy fields. Accused Azhar alias Dana, Mushtaq alias Malung were armed with Kalashnikovs whereas Shabbir Ahmad appellant was armed with rifle and they started indiscriminate firing at the police party. Allegedly the fire made by Azhar accused hit Liaqat Ali H.C. Who succumbed to the injuries at the spot. The police party also continued firing in their defence. In the meantime on receiving information regarding the police encounter, Riaz Ali Shah Inspector along with other police officials and Ch. Masood Ahmad DSP also reached at the place of occurrence and when the police party stepped forward to lift the dead-body of Liaquat, the accused once again started firing at the police party. 'This time, the fire made by Mushtaq alias Malung hit Muhammad Farooq, S.I. Whereas the fire made by Shabbir (appellant) hit on the left flank of Riaz Ali Shah Inspector. Both the injured were removed to the hospital but Muhammad Farooq succumbed to the injuries on his way to hospital. On hearing the fire shots several peoples of the locality also gathered at the spot, out of them Muhammad Afzal and Mst. Yasmeen also sustained injuries by the firing made by accused persons. Thereafter all the accused fled away from the place of occurrence. The allegations against Shahbaz accused was that he harboured the accused and also provided them with food and arms.
' Co-accused Azhar died before the Trial Court whereas Mushtaq is a fugitive from law and has been declared as a proclaimed offender.
4. After registration of case and complying with legal formalitiesthe Investigating agency submitted challan before the Trial Court where prosecution produced twenty witnesses including Muhammad Riaz, S.I (P.W.16), Riaz Ali Shah, Inspector (Injured) P.W.17. Muhammad Razzaq, S.I. P.W.18, Mehmood Ahmad, Inspector P.W.19 andMuhammad Afzal P.W.14 as eye-witnesses of the occurrence, to prove the charge against the appellant and his co-accused.
5. Trial Court also examined the appellant and his co-accused under section 342, Cr.P.C. While answering to the question why this case against you and why the P.Ws. Have deposed against you? The appellant replied as under:- "The P.Ws. Are enemies of God being police officials having no respect for human body and human life. The P.Ws. Made their depositions falsely and that too under instructions and being members of police force they have to act upon the orders. It was an unseen occurrence and the arrest of mine was made on 14-9-2001 from the village Jatrikey when I was going to see my maternal uncle Muhammad Arif resident of village Jatrikey for getting some money and I was going on the bank of canal and while in the way was apprehended at the Naka of police and was searched by them and I also showed them my identification card. It was general search and everybody was going to and was being a subject to personal search. I was also enquired regarding my destination. I told them that I am resident of District Sialkot and employee of Sui Gas Department at Gujranwala. My father asked me in presence of Riaz Khan Lumberdar in the morning of 14-9-2001 to go to village Jatrikey and bring money from Muhammad Aslam (maternal uncle). My other maternal uncle Muhammad Rasheed and Muhammad Sharif are also residing in the said village. While I was being interrogated by the police Ibrar, Quraban Elahi and one another resident of Jatrikey came there and heard my conversation. The aforesaid told the police that I was a P.O. And from that place I was taken to Police Station, Narang. I told to the police then and there that the said persons are our enemy and we have an enmity of murder. But no heed was paid to me. I was put under illegal confinement for about fourteen days and was subjected to a lot of physical violence. I got my medical report i.e, a certified copy Exh. DA which shows the physical violence and I was medically examined under the Court's order. I was threatened to be killed in the police encounter and Riaz Abbas, S.H.O.
Demanded a sum of Rs,5,00,000 as illegal gratification to accept my innocence. I could not manage such heavy amount, therefore, Riaz Abbas, S.H.O. Made collusion with our enemies Ibrar and Qurban Elahi and showed my arrest in the instant case against the facts on 29-9-2001. The recovery was also effected at the instance of our opponents and weapons were provided to Riaz Abbas byQurban Elahi who is now-a-days in Rawalpindi Jail and was arrested at Naka during last national election because Rocket Launcher, Kalashnikovs and thousand of bullets and - hand- grenades were recovered from the said Qurban Elahi. I do not know who is Mushtaq alias Malung and Azhar alias Dana. I am actually innocent. I may mention that on 31-12-2000 three persons were killed and a criminal case was registered at Police Station, Narang i.e, F.I.R. No,486 of 2000 under sections 302/148/149. The deceased in that the case was Muhammad Boota and Muhammad Asif, Slohabib Elahi. There was 18 persons nominated in the F.I.R. With specific roles and three were left as unknown, however, during investigation only three persons were found guilty namely Asad alias Asdu. Shakeel son of Malik and Naseer son of Malik and all the other were found innocent being not present in this case, therefore, the complainant of the said F.I.R. Qurban Elahi filed a private complaint while being disappointed from the police and the name of mine was also mentioned in the private complaint as one of the accused at serial No,21 of the private complaint. The aforementioned Shakeel and Naseer are my cousins (maternal). I am innocent and on account of enmity was involved by the above-said persons who succeeded to manage collusion with Riaz Abbas, S.H.O."
' Appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any defence witness but placed on record copy of F.I.R. No,486 of 2000 registered at Police Station Narang (Exh.
DB) and certified copy of complaint titled Qurban Elahi v. Asdu i.e, Exit. DC.
6. Trial Court after appraisal of evidence available on record vide judgment, dated 5-5-2001 convicted and sentenced the appellant as narrated earlier.
7. Learned counsel for the appellant while challenging the legalityof the impugned judgment submitted that the appellant had been falsely involved in this case; all the eye-witnesses who had deposed before the Trial Court were police officials and no independent witness from the locality .Was produced before the Trial Court and that the only witness from the public namely Muhammad Afzal P.W.14 who had also received injuries during the occurrence had not nominated the appellant, submitted that evidence of the said police officials in the absence of any corroborative piece of evidence could not be relied upon but the Trial Court while passing the impugned judgment had erroneously relied uponthe said witnesses. Submitted that according to the prosecution case at the relevant time appellant was armed with rifle but allegedly during the investigation he led to the recovery of Kalashnikov and that there is no evidence on record to show that the said weapon was ever used during the occurrence, thus this piece of evidence could not be relied upon. It was submitted that there is no evidence on record to show that the appellant and his co-accused were proclaimed offender and thus there was no occasion to conduct the raid and that the F.I.R. Is based on cooked up story. It was finally submitted that in the circumstances appellant is entitled to get the benefit of doubt. On the contrary, learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the arguments raised by the learned counsel for the appellant.
8. After hearing the learned counsel for the parties and perusing the record, we have observed that it is a case of promptly lodged F.I.R.; the police party on 13-9-2001 at about 4.00 p.m. Upon receiving the A information about the availability of the appellant and his co-accused who were proclaimed offender, conducted raid and on seeing the police party in order to manage their escape the appellant and his co-accused made indiscriminate firing as a result of which Liaquat H.C.
Muhammad Farooq, S.I. And Riaz Ali Shah, Inspector P.W.17 received injuries. Liaquat and Muhammad Farooq died at the spot whereas Riaz Ali Shah was removed to the hospital for medical treatment. During the occurrence Muhammad Afzal P.W.14 along with his wife Mst. Yaseem also received injuries. This encounter started at about 4.00 p.m. And remained continue till 9.45 p.m. When the accused persons on finding the opportunity fled away from the spot and the present case was registered at Police Station at 10.45 p.m.
' Muhammad Riaz, S.I. P.W.16, Riaz Ali Shah, Inspector P.W.17 and Muhammad Razzaq, S.I. P.W.18 along with Mehmood Ahmad, Inspector P.W.19 were the members of the raiding party when the appellant and his co-accused launched attack and made indiscriminate firing. During this occurrence Riaz Ali Shah, Inspector P.W.17 received injuries at the hands of appellant. He was medically examined by Dr. Muhammad Nawaz P.W.1 Medical Officer Mayo Hospital, Lahore who prepared this Medico-legal Report i.e, Exh.P.A. This report reveals that the witness had lacerated wound (grazed wound) measuring 7x2 c.m. On the left side of back of abdomen, 3 c.m. Above the leg iliac crease. This Medico-legal Report affirms the presence of this witness at the spot. The injured witness along with other police officials while supporting the B prosecution case have specifically stated qua the role of Shabbir Ahmae appellant and his other co-accused. Statedly, Liaqat had died by the firing made by Azhar accused whereas Muhammad Farooq died by the firing made by Muhammad Mushtaq, Proclaimed Offender and that the fire made by the appellant had hit Riaz Ali Shah P.W.17 on the left flank. We have also observed that the Medical Board was constituted to conduct post- mortem, examination of both the deceased persons and according to the report of the Board deceased Muhammad Farooq had one fire-arm entry wounds on the front of his chest whereas there were 15 fire-arm wounds on the person of Liaqat H.C. Deceased. The ocular account finds much supports from the Medico-legal Report and the statements of the doctor who had deposed before the Trial Court. We have also observed that all the said eye-witnesses have successfully stood the test of lengthy and searching cross-examination and there is not an iota of evidence on the record to show any malice of these witness for the false implication of the appellant in this case. Learned counsel for appellant has laid much stress on the statement of Muhammad Anwar, Inspector who was examined as a Court Witness (C.W.1). The statement of this witness is to the extent that during his investigation he opined that appellant did not make firing at the relevant time. Learned counsel also pointed out certain discrepancies in the statements of eye-witnesses and argued that the said contradictions in the statement of the eye-witnesses are sufficient to doubt their credibility, we are afraid the contentions raised by the learned counsel (Mr. Muhammad Khalid Sajjad, Advocate) have got no force. Muhammad Anwar C.W.1 being the Investigating Officer had given opinion qua the participation of the appellant, his opinion is not binding on the Court especially when the evidence available on record is strong enough to support the prosecution case. Similarly, the discrepancies in the statements of P. Ws. Highlighted by the learned counsel are ignorable being minor in nature. We have no reason to doubt the credibility of the evidence of the eye-witnesses who have deposed in a very natural manner before the Trial Court while supporting the prosecution case. The statements of these witnesses are persuasive in nature and in our view the ocular account can safely be relied upon to upheld the conviction of the appellant even in the absence of any corroborative piece of evidence.
As far the quantum of sentence of the appellant is concerned, we have observed that the appellant never caused any injury to any of the deceased and the precise allegation against him is that of causing fire-arm injuries to one of the prosecution witness. Though the participation of the appellant in this occurrence stands established from the data available on record but we are of the view that the trial Court while awarding sentence to the appellant on the charge under section 302(b), P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 for the murder of Liaqat and Muhammad Farooq had taken a harsh view and to this extent theimpugned judgment is not sustainable. Accordingly, while dismissing the appeal sentence of the appellant for the charge under section 302(b), P.P.C. Read with section 7, Anti-Terrorism Act on both the counts is reduced to imprisonment for life. The said sentences of imprisonment of the appellant along with his other sentences of imprisonment on other charges shall run concurrently. Benefit of section 382-B, Cr.P.C.
Is also extended in favour of the appellant. The appellant shall also pay the compensation to the legal heirs of the deceased as well as the injured witness on the same terms and conditions as fixed by the Trial Court.
' Death sentence is not confirmed and the murder reference is answered in the negative.