' HASNAT AHMAD KHAN, J.- Zahid Hussain and Manzoor appellants were tried by the learned Judge, Anti- Terrorism Court No.II, Multan in case F.I.R. No. 117 dated 8-7-2001 registered at Police Station Fateh Sher, District Sahiwal in respect of offences under sections 302/324/353/186/34, P.P.C. Read with section 7(b) of the Anti-Terrorism Act, 1997. The learned trial Court convicted both the appellants under section 302(b)/34, P.P.C. For committing the murder of Fida Hussain Constable and sentenced them to death. Both of the appellants were also ordered to pay Rs.50,000 each to the legal heirs of Fida Hussain deceased-constable as compensation or in default thereof to undergo imprisonment for six months each. Both the appellants were further sentenced to undergo R.I. For two years each for using criminal force against police party. They were also sentenced to undergo R.I. For two years each and to pay fine ot Rs. 10,000 each for committing act of terrorism against police party. In default of payment of fine they were also directed to undergo R.I. For two years each. The appellants were also convicted under section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to death and also to pay fine of Rs.40,000 each or in default of payment of the said fine to undergo four years R.I. Each. The sentences of imprisonment were directed to run consecutively and benefit of the provisions of seetion 382-B, Cr.P.C. Was also granted to them. It would be relevant to point out here that third accused, namely, Shahid Sheikh being absconder at the relevant time was not challaned to face the trial.
2. Feeling aggrieved of the above said conviction and sentences awarded by the learned.Trial Court, Zahid Hussain appellant has filed Criminal Appeal No.51 of 2002 whereas Manzoor appellant has filed Criminal Appeal No;58 of 2002. The State has approached this Court through Murder Reference No. 11 of 2002 seeking confirmation of the sentences of death awarded to Zahid Hussain and Manzoor appellants. All these matters arc being disposed of together through this single judgment.
3. . The prosecution story as narrated in the F.I.R. (Exh.PH/l) lodged at the instance of Abdul Sattar A.S.-I. (P.W.8) was that at about 8-30 p.m. On 8-7-2001 he was present on patrol duty along with Fida Hussain Constable when he received telephonic tip off that three suspects armed with fire- arms, having motor cycle Yamaha were sitting near "Mazdoor Pully" with intention to commit some crime on which he along with Fida Hussain Constable rode on motor cycle and reached "Mazdoor Pully". The informer of the police being present there made signal towards the above three suspects. Fida Hussain Constable alighted from the motor cycle and started walking towards them.
The complainant A.S.-I. Was parking the motor cycle when the above three suspects made straight firing with their .30 bore pistols hitting Fida Hussain on his belly under umbilicus and right shin who fell on the ground. The F.I.R. Went on to narrate that Abdus Sattar A.S.-I./complainant (P.W.8) laid on the ground and took position. In the meanwhile Subah Sadiq Constable No. 1195 and Muhammad Arshad Constable No. 1078 (P.W.9) of Police Station Fateh Sher also reached at the spot. All the three of the police officials returned the fire and over powered Zahid Hussain and Manzoor appellants after injuring them whereas their third companion, namely, Shahid Sheikh made good his escape by riding on the motor cycle. Fida Hussain Constable, who was seriously injured was' attended to and then transported to the hospital but he succumbed to the injuries.
4. Ghulam Mohtada, Inspector (P.W.10) was the S.H.O. Of Police Station, Fateh Sher, on 8-7-2001. On receiving information about the incident he reached the Civil Hospital, Sahiwal where Abdul Sattar, A.S.-I. Met him and made statement (Exh.PH) which was sent by the said Inspector to the police station on the basis of which formal F.I.R. (Exh.PH/l) was recorded by Rehmat Ali A.S.-t. (P.W.2) at the police station at 9-55 p.m. Same day. The Inspector/S.H.O. Prepared the inquest report (Exh.PC) of Fida Hussain deceased, injury statement of Zahid Hussain accuscd/appellant (Exh.PF) and injury statement of Manzoor accused/appcllant (Exh.PG). After sending the statement (Exh.PH) to the police station for registration of the F.I.R., Ghulam Mohtada Inspector took Abdus Sattar A.S.-I. With him and reached the spot. He took into possession two pistols (P.6 and P.8) and ten live bullets in all vide recovery memos. Exh.PK and Exh.PL. Respectively. He took two crime empties into possession vide recovery memo. Exh.PN and made them into sealed parcel. He also took three other crime empty shells of bullets into pbssession through recovery memo, Exh.PO and sealed them into parcel. He also took into possession blood-stained earth from the place where Fida Hussain Constable had been fired at vide recovery memo. Exh.PM. He prepared rough site- plan of the place of occurrence (Exh.PP) and got prepared scaled site-plan (Exh.P. 1, Exh.P. 1/1 and Exh.P. 1/2). He recorded statements under section 161 Cr.P.C. Of the witnesses present at the spot. After completion of the investigation the Inspector-S.H.O. Challaned the appellants to the Court to face the trial.-
5. A Medical Board comprising Dr. Arshad Iqbal Dar, Medical Superintendent, Dr. Naseem Ahmad Nasir, D.D.H.O., Dr. Sadiq Tasleem, Surgeon Civil Hospital Sahiwal including Dr. Manzoor Ahmad Sheikh S.M.O., (P.W.l) conducted the autopsy on the dead body of Fida Hussain Constable which was brought by Rustam Ali A.S.-I. On 9-7-2001 at 1-00 a.m. Following injuries were found on his body:- ' A fire-are wound of entry 1.5 c.m. x 1.5 can. x deep going with burning on front lower part of abdomen. There was an abrasion 3 c.m. x 2 c.m. Just below entry wound. Corresponding holes on clothes were present.
' Contused swelling 3 c.m. x 2 c.m. On back middle part of right side of abdomen 3 c.m. From mid- line.
(1) A fire-arm Wound of entry 1.5 c.m. x 1 c.m. x deep going on back middle part of right leg. Burning around the wound was present. Corresponding to this, there was wound of exit 1.5 c.m. x 1.5 c.m., 2 c.m. Away from entry wound with holes on clothes.
' On dissection abdominal cavity was found to be"full'-of blood. There were multiple perforations in small and large intestines. Lower part of interior venacava was injured. A metallic piece was recovered from back of abdomen under Injury No.2.
' In the opinion of the Medical Board the cause of death was Injury No.l damaging major vessels of abdomen leading to heamorrhage and shock which .Were sufficient to cause death in the ordinary course of nature. All the injuries were inflicted by fire-arm and were ante-mortem in nature. The probable duration between injuries and death was about 1/2 hour while between death and post- mortem was about 3 hours.
6'. The above said Medical Board including Dr. Manzoor Ahmad Sheikh (P.W.l) had medically examined Manzoor appellant on 8-7-2001 at 9-35 p.m. Who was brought by the police and found the following injuries on his person:-
(1) Swelling 5 c.m. x 3 c.m. On right side of head 8 c.m. Above right ear.
(2) A fire-arm wound of entry 3/4 c.m. x 3/4 c.m. x deep going with tattooing on inner lower part of left thigh. Corresponding to this there was a wound of exit 1 c.m. x 3/4 c.m. On outer lower part of left thigh. There was contused swelling oil front of left knee joint corresponding holes on clothes were present.
(3) A fire-arm wound of entry 1 c.m. x 1 c.m. x deep going with tattooing on inner lower part of left thigh 7 c.m. Below and inner side of Injury No.2, corresponding to this there was a wound of exit on outer side of left knee joint 8 c.m. Below exit wound of Injury No.2. There was contused swelling on back of left knee joint. Corresponding holes on clothes were present.
(4) ,Two abrasions each 1 c.m. x 1/2 c.m. On front of left knee joint.
' Injuries Nos.l and 4 were the result of blunt weapon while Injuries Nos.2 and 3 were caused by fire- arm.. Duration between injuries and medical examination was about 2 hours.
7. On the same day at the same time the Medical Board also medically examined Zahid Hussain appellant and found the following injuries on his person:-
(1) Swelling 4 c.m. x 3 c.m. On left lower lip.
(2) Swelling 8 c.m. x 6 c.m.. On left cheek.
(3) A fire-arm wound 3/4 c.m. x 3/4 c.m. x deep going with inverted margins on right buttock 5 c.m.
From anal cleft.
(4) A fire-arm wound 1.5 c.m. x 1.5 c.m. x deep going on inner side of right buttock 11 c.m. Below Injury No.3.
' As per the Medical Board Injuries Nos. 1 and 2 were inflicted by blunt weapon while Injuries Nos.3 and 4 were caused by fire-arm. Probable duration of injuries was about two hours.
8. After submission of the challan, the accused/appellants were charge-sheeted by the learned trial Court to which they pleaded not guilty and claimed to the tried.
9. At the trial the prosecution produced Dr. Manzoor Ahmad Sheikh (P.W.l) who along with other members of the Medical Board had conducted postmortem examination on the dead body of Fida Hussain and had also medically examined Manzoor and Zahid Hussain appellants. Rehmat Ali A.S.- I. Appeared as P.W.2 who had recorded formal F.I.R, (Exh.PH/1). Mirza Ashfaq Baig draftsman P.W.3 had prepared the . Site plans (Exh.P.l, Exh.P.1/1 and Exh.P.1/2), Sakhawat Ali Constable who had deposited parcel of blood-stained earth appeared as P.W.4. Zafar Iqbal A.S.-I. Who was Moharrir at Police Station Fateh Sher at the relevant time appeared as P.W.5. Rustam Ali A.S.-I. Who had escorted the dead body of Fida Hussain to the mortuary for autopsy entered into the witness-box as P.W.6. Shehbaz Ahmad a brother of the deceased who had identified his dead body came forward as P.W.7. Abdus Sattar. A.S.-I. Of Rescue 15 Sahiwal stepped forward as P.W.8 to depose about the ocular account of the occurrence. He reiterated the story as narrated by him in the statement (Exh.PH). Muhammad Arshad Constable appeared as P.W.9 to support the ocular testimony of' the occurrence. Ghulam. Mohtada Inspector/S.H.O. Who had recorded the statement of the complainant and had investigated the case showed up as P.W.
10. After tendering reports of chemical examiner, serologist and Forensic Science Laboratory and Exhs.PQ, PR and ,PL respectively, the learned public prosecutor closed the prosecution evidence.
10. Statements of the appellants under section 342, Cr.P.C. Were recorded. To a question why this case against you and why the P.Ws. Deposed against you? Zahid Hussain appellant replied:-- "I have falsely been implicated in this case due to grudge of the local political rivalry. All the P.Ws.
Have' deposed against me being police officials who bear grudge against me."
' To the question, have you anything else to say? Zahid Hussain appellant responded:- "Due to - political rivalry, our opponents have been trying to implicate me in police cases. I was previously challaned in the police case in which I was acquitted. I produce copy of that judgment.
S.H.O. Chichawatni had gathered a hand grenade to plant against me which went to killing said S.H.O. Police has its grudge against me. I was present in the bazaar at the relevant time when a stray bullet had hit me. Thereafter the police concocted the present case against me."
' To a similar question, Manzoor appellant replied as follows:- "The case is false. The police involved me in it falsely. I was not present at the spot nor I hit any one.
Nothing was recovered from me. Police involved me only to show Karvai. P.Ws. Are police officials who deposed against me only to support false prosecution version, I am innocent."
' The appellants however did not opt to enter the witness-box to make statement on Oath under section 340(2), Cr.P.C.
11. Learned counsel for Manzoor appellant has contended that the prosecution has miserably failed to prove . The case against the appellants. While illucidating his argument he has contended that the occurrence had taken place at a public place but no independent witness had been produced by the prosecution which makes the prosecution story doubtful; that the ocular evidence is based upon material and dishonest improvements; that the medical, evidence contradicts the ocular version; that neither the weapons used by the police officials were recovered at the spot nor empties of bullets fired by the police officials were taken into custody. Similarly the fire-arm weapons used by the police were not sent to the Forensic Science Laboratory for its report; that the clothes of the accused were not recovered to substantiate the allegation of firing by the police due to which the appellants were allegedly injured during the occurrence; that according to the prosecution, Shahid Sheikh, a third co-accused had fired with his pistol before running away but P.W.9 while stating "Third accused did not make any shot" had contradicted the prosecution story which showed that the eye-witnesses were not present at the time of occurrence and that all these facts create serious doubt in the prosecution version benefit of which should.Be given to the appellant.
12. While claiming acquittal for Zahid Hussain appellant, his learned counsel has submitted that the F.I.R. Was recorded after due deliberations and investigation which shows mala fide of the police; that the prosecution had twisted the case as far as Zahid Hussain appellant is concerned; that according to P.W.8, 40/50 persons were present at the time of occurrence but none of them was cited as eye-witness and thus the prosecution is guilty , of withholding natural witnesses; that the medical evidence shows that the deceased as well as Manzoor appellant had. Received fire-arm injuries from a very close distance which fact contradicts the prosecution version according to which the .Deceased was shot at, from a long distance; that Zahid Hussain appellant had received the injury from a distance which supports his version that he became victim of a stray bullet and in fact he had not participated in the occurrence. Lastly he has contended that he does not deserve maximum sentence and his case is distinguishable from the case of Manzoor appellant.
13. Conversely, while spurning the arguments advanced by both the learned counsel for the appellants, the learned 'Deputy Prosecutor General assisted by the learned counsel for the complainant has supported the conviction and sentences awarded to the appellants, tooth and nail. While elaborating his arguments, the learned counsel has contended that the F.I.R. Was promptly lodged; that both the appellants were apprehended at the spot while in injured condition which fact shows that they were not falsely implicated in the case; that although the prosecution witnesses are police officials but they had no previous ill will or motive to falsely implicate the appellants, therefore, they cannot be dubbed as interested 'witnesses and are as competent as any other witness; that the prosecution had proved its case beyond shadow of doubt through the ocular evidence coupled with medical evidence. As far as the plea of enmity raised by Zahid appellant is concerned learned counsel for the complainant has contended that had there been any such enmity -the appellant could have been shot dead by the police at the spot taking the advantage of plea of police encounter. On the. Dint of said submissions, he has submiued that the appeal be dismissed and the death sentence awarded to both the appellants be confirmed.
14. After giving patient hearing to both the parties and going through the record minutely, we are not inclined to agree with the learned counsel for the appellants. After applying our judicious mind, we have come to conclusion that the prosecution had proved its case against both the appellants beyond any shadow of doubt. The occurrence took place at 8-35 p.m. On 7-7-2001 and the F.I.R.
(Exh.PH/1) was registered at the police station same day at 7-55 p.m. i.e. Within a short span of time of 1-1/2 hours which eliminates the possibility of any deliberation or investigation prior to registration of the same. The . Ocula account of the proseeution version has been provided by Abdul Sattar A.S.-I./complainant (P.W.8) and Muhammad Arshad (P.W.9). Salient features of the ocular account are that on a tip off that three suspicious persons while armed with weapons were present near "Mazdoor Pully" with intention to commit some crime, the complainant along with .
Fida Hussain Constable reached at the spot on a motor cycle. Fida Hussain Constable after alighting from the motor cycle proceeded towards the accuse persons upon which the three suspects made straight firing hilling Fida Hussain on the lower part of his abdomen and shin who fell on the ground. Abdul Sattar A.S.-I. Along with Muhammad Arshad (P.W.9) and Subah Sadiq (given up) returned the fire as a result of which two of the accused also got injured.
15. Dr. Manzoor Ahamd Sheikh who was one of the members of the Medical Board who had medically examined Zahid Hussain and Manzoor appellants and had conducted post-mortem examination oh the dead body of Fida Hussain deceased had entered the witness-box as P.W.l. As stated above, the occurrence had taken place at 8- 35 p.m. On 8-7-2001 and according to the said P.W. Both the appellants were medically examined on 8-7-2001 at 9-35 p.m. And duration between injuries and the medical examination was about two hours. Likewise autopsy on the dead body of Fida Hussain was conducted at 1-00 a.m. On 9-7-2001 and probable duration between autopsy and' the death was about three hours.
Thus the time of receiving injuries matches the time of occurrence. As per the post-mortem report, Fida Hussain deceased had received two fire-arm injuries on front lower part of his abdomen and on back middle part of his right leg. Like-wise the appellants had also received fire-arm injuries.
Thus the ocular account#of the prosecution version is fully corroborated by medical evidence.
16. Admittedly both the appellants were apprehended at the spot while in injured condition.
Ghulam Mohtada Inspector/I.O. (P.W. 10) had also recovered pistols from them and took the same into possession vide recovery memos. Exhs. PK and PL, Two Crime empties were recovered from the spot vide memo. Exh.PN and the three other empties recovered from the spot were taken into possession vide memo. Exh.PO. Notwithstanding the report of the Forensic Science Laboratory (Exh.PS) to the effect that the crime empties alleged to have been recovered from the place from where Manzoor appellant had fired had matched with the pistol of Zahid Hussain appellant and similarly such-like empties alleged to have been fired from the pistol of Zahid had matched with the pistol of Manzoor appellant, the fact remains that the crime empties recovered from the spot had matched with the pistols which had been used at the spot by the appellants. Human error in preparation of parcels could not be ruled out. Hence the defence cannot take advantage of said error.
17. So far as the contention of the learned counsel for Manzoor appellant that as per the site-plan the appellants were at a distance of 8 feet from Fida Hussain deceased while as per the medical report his client had received fire-arm injury from a very close distance which shows that the eye- witnesses were not present at the spot, is concerned, the same cannot be made a ground for disbelieving the prosecution evidence inasmuch as admittedly the police party was not in a static position. They were advancing towards the appellants with intention to apprehend them who resorted to firing. Therefore, the seat of injuries by the deceased as well as Manzoor appellant keeping in view the site-plan cannot contradict the prosecution version. It may be mentioned here that the site-plan has never been considered a substantive piece of evidence. Moreover, while appreciating said contention, we cannot ignore the length of arm of the user and weapon used while firing. So we do not find any inconsistency between medical evidence and the ocular evidence. As far as contention of learned counsel for Zahid Hussain appellant that his injury did not contain signs of tattooing, therefore, his plea that a stray bullet had hit him was more probable, creating a doubt in the prosecution case, is concerned the same is not worth acceptance.
' Admittedly he was apprehended at the spot. As stated above, .30 bore pistol had been recovered from him. Similarly crime empties fired from said pistol were also recovered from the spot which shows that he had actively participated in the occurrence. The contention of the learned counsel for the appellants that in spite of the fact that the place of occurrence was a public place but no witness from the public, had been associated, is also of no avail. In our society due to lack of civic sense usually people do not have the courage to become witnesses against a crime nor do they want to indulge themselves in the activities resulting in perplexities of investigation/ trials etc. It has,-therefore, been considered view of the superior Courts that in absence of any kind of enmity or animosity, the evidence of the police is as worthy of reliance as of any other independent witness.
18. Looking from whatever angle, we find that the prosecution has proved its case to its hilt and the learned counsel for the appellants have not been able to create a dent in the same. Therefore, the conviction awarded to the appellants by the learned trial Court is maintained.
20. So far as the sentences awarded to the appellants are concerned, having gone through the record, we find that the appellants are not entitled to any leniency. They have caused the death of a public servant just due to the reason that while performing his official duty the deceased had tried to apprehend the appellants who at the relevant time, were duly armed and were preparing to commit some crime. Had they been innocent, the would have surrendered before the police.
Statement of Zahid Hussain appellant made under section 342, Cr.P.C. Shows that he was previously involved in a case of keeping hand-granade. While going through the record we have further observed a document which shows that Manzoor appellant was previously involved in seven cases including dacoity, robbery etc. In pursuance of their common intention both of them had caused murder of innocent police official, who was on official duty at the relevant time. This gruesome act on the part of the appellants amounts to Fasad-fil-Arz and they are not entitled to any leniency.
21. In view of what has been noticed and discussed above", we find that the learned counsel for the appellants have not been able to make out a case for acquittal of the appellants. Consequently, Criminal Appeal No.51 of 2002 and Criminal Appeal No.58 of 2002 fail and are hereby dismissed.
Murder Reference No. 11 of 2002 filed by the State is answered in the positive and sentences of death awarded to Zahid Hussain and Manzoor convicts are confirmed.