' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellant along with his co-accused namely Allah Ditta alias Kala was tried by Judge, Anti-Terrorism Court-I, Gujranwala in case F.I.R. No.4 of 2004, dated 3-1-2004 for the offence under sections 458/302(b)/324/337-F (i), P.P.C. Read with section 7(a) of Anti-Terrorism Act, 1997 registered at Police Station Kotli Saad Ameer, District Sialkot. The trial Court vide judgment dated 22-10-2004 while acquitting his co-accused convicted the appellant under section 302(b)134, P.P.C. Read with section 7 (a) of the Anti-Terrorism Act, 1997 and sentenced him of death. He was also directed to pay Rs.1,00,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. The trial Court further convicted the appellant under section 324/34, P.P.C. And sentenced him to seven years' R.I. And to pay a fine of Rs.5,000 or in default whereof to further undergo six months' S.I. Trial Court also convicted the appellant under section 337-A(i)/34, P.P.C. And sentenced him to two years' R.I. And to pay Rs.5,000 as Daman.
Appellant was also convicted under section 337-F(i)/34, P.P.C. And sentenced to undergo one year's R.I. And to pay Rs.2,500 as Daman. He was also convicted under section 337-F(iii)/34, P.P.C.
And sentenced to undergo three years' R.I. And to pay Rs.5,000 as Daman. The amount of Daman was order to be paid to Muhammad Aslam injured in case of non-payment of Daman, it was ordered to be recovered from the appellant and until the Daman is paid, the appellant was ordered to be kept in jail to undergo simple imprisonment. Appellant was also convicted under section 337-A(i)/34, P.P.C. For causing injuries on the person of Mst. Hanifan Bibi and sentenced to undergo R.I. For two years and to pay Rs.5,000 as Daman. Appellant was also convicted under sections 337-F(i)/34, P.P.C. And sentenced to undergo R.I. For one year and to pay Rs.2,500 as Daman. The amount of Daman was ordered to be paid to Mst. Hanifan Bibi injured, in case of non- payment of Daman, it was ordered to be recovered from the appellant and until the Daman is paid, the appellant was order to be kept in jail undergoing S.I. Trial Court also convicted the appellant under section 460, P.P.C. And sentenced him to undergo for seven years' R.I.
2. Feeling aggrieved by the impugned judgment the appellant has filed the appeal through jail i.e. Crl. A. No.357-J of 2004, whereas the trial Court has made a reference i.e. M.R. No.24-T of 2004 seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this single judgment.
3. Succinctly the prosecution case as contained in F.I.R. Exh.PB lodged by Mst. Hanifan Bibi, real mother of Babar Hussain deceased is that on the night falling in between 2/3-1-2004 she along with her husband Muhammad Aslam (injured P.W.13) and her son Sabir Hussain (given up P.W.) and his wife were present in their rooms whereas her son. Babar Hussain (deceased) and her daughters were watching T.V. In another residential room. On hearing noise her son Babar Hussain came outside the room and on seeing four persons armed with fire arms raised alarm by saying "thief, thief". The daughters of the complainant also joined their brother and on hearing the hue and cry complainant, her husband and her son Sabir Hussain along with his wife also came in the compound and saw Ijrar Hassan (appellant), Allah Ditta alias Kala, Shehzad and Javed alias Jaida all armed with, .30 bore pistols, who on seeing the witnesses started firing. The fire made by Ijrar Hassan hit Babar Hussain on the chest whereas the fire of Allah Ditta alias Kala hit him on the right thigh. Shehzad Rajput (since P.0) fired which hit on the left cheek of Muhammad Aslam P.W.13, Javed alias Jaida (since P.0) gave butt blows with his .30 bore pistol to the complainant on her mouth.. On hearing fire reports, P.W. Allah Ditta son of Saeed Ahmed also came at the spot.
Accused Ijrar Hussain appellant was apprehended at the spot and during the scuffle he (appellant) also received some. Injuries. Statedly witnesses had seen the occurrence in the electricity bulb light and that Babar Hussain succumbed to the injuries at the spot.
' The motive for the instant occurrence was that the accused had trespassed into the house of the complainant with the intention to commit robbery at night time and on resistance, Babar Hussain was murdered.
4. The Investigating Agency after complying with legal formalities submitted challan before the trial Court where prosecution produced nineteen witnesses including Mst. Hanifan Bibi complainant P.W.12 and Muhammad Aslam P.W.13 the eye-witnesses of the occurrence, to prove the charge against the appellant.
5. Learned trial Court also examined appellant under section 342, Cr.P.C. In response to the question "why this case against you?", the reply of appellant in verbatim reads as under:-- "I have been falsely implicated in this case. The occurrence had not taken place in the manner reported to the police and stated by the P.Ws. On 2-1-2004 at 9-00 p.m. I along with my friend on motorcycle was going just to cross the village Pindi Panjooran. We were on Paka Road which is in front of complainant's house the complainant was on the road, due to darkness, our motorcycle hit the complainant, she fell down and sustained injury. Due to her cry, members of her family came there and started beating me with Dandas and fist blows. My friend ran away with motorcycle.
They caught me and took me in their house and due to further physical torture there, I became unconscious. Meanwhile, some class fellows of Babar who had developed hostility with him few days back, trespassed in the house of the deceased while following the deceased and there, they fired on Babar with pistols resulting in his death. Subsequently, his class fellows decamped. As I was already in custody of complainant party, so I was made an scapegoat in this case. On the distorted facts, with due deliberations and consultation, giving a simple murder occurrence, colour of dacoity with murder."
' Neither the appellant made any statement under section 340(2), Cr.P.C. Nor produced any evidence iii his defence.
6. Learned trial Court after appraisal of evidence vide judgment dated 22-12-2004 convicted and sentenced the appellant as narrated earlier, hence this appeal.
7.After hearing the learned counsel for the parties and perusing the record, we have observed that it is a case of two versions, time, place of occurrence and the weapon used during the occurrence are the admitted facts. The only question to be resolved is whether the evidence of the prosecution witnesses is to be relied upon or the defence plea is to be accepted as gospel truth.
8.According to the defence the complainant of this case had sustained injury by falling down when she was hit by the motorcycle of the appellant and thereafter the appellant was given beating by the family members of the complainant- and in the meantime some class fellows of Babar Hussain deceased who had developed hostility, against him while trespassing into the house of the deceased committed his murder and while distorting the facts with due deliberation and consultation appellant has been involved in this case. This plea is not only repellent to common- sense, but it is also not understandable as to why the kith and kin of the deceased while leaving the real culprits would implicate the appellant in this case. The defence plea is also silent with regard to the injury received by Muhammad Aslam P.W.13 during this occurrence. The dimension and location of injuries on the person of Muhammad Aslam P.W.13 as observed by Dr. Munawar Hayat P.W.5 reveal that the same could not be caused with friendly hands and the duration of these injuries also tallies with the time of occurrence. The appellant also never opted to make any statement under section 340(2), Cr.P.C'. Nor produced his friend in his defence who statedly was accompanying him when this occurrence took place. Similarly, the appellant never took this plea before the Investigating Officer when he was arrested. In our view the said defence plea is nothing but an afterthought which seems to have been taken before the trial Court under some legal advise.
9. This occurrence took place on the night between. 2/3-1-2004 when the appellant and.'his co- accused in order to commit the robbery trespassed into the house of the complainant and upon the resistance by the inmates, they started firing and the fire made by the appellant hit Babar Hussain on the chest as a result of which he died at the spot. The co-accused of the appellant also caused injuries to Muhammad Aslam P.W.13 as well as the complainant of this case (Mst. Hanifan P.W.12). The appellant was apprehended at the spot by Sabir Hussain son of the complainant' (not produced) and crime weapon (pistol) was recovered from him. During the spot inspection, Investigating Agency'also recovered some empties which were sent to the office of Forensic Science Laboratory and report Exh.PEE from the said office reveals that weapon recovered at the instance of the appellant had matched with the said empties. Before the trial Court Mst. Hanifan P.W.12 and Muhammad Aslam P.W.13 while supporting the prosecution case had narrated the circumstances under which the appellant and his co-accused while trespassing into the house had committed the offence. The presence of both the said witnesses being the inmates of the house at the relevant time was very natural. The stamp of injuries on their persons as observed by the doctor is yet another fact to establish their presence at the relevant time. We have also observed that there is not an iota of evidence on the record to show that these witnesses had any malice or grouse against the appellant to falsely implicate him. The evidence of these eye- witnesses inspire confidence, rings true and finds ample support and corroboration from the medical evidence as well as the recovery of crime weapon at the instance of the appellant coupled with the report from the office of Forensic Science Laboratory. Thus in the circumstances, we have no hesitation to hold that the prosecution has succeeded in proving its case to the hilt Accordingly, finding no force in the instant application, the same stands dismissed. Death sentence is confirmed and the murder reference is, answered in the affirmative.