Zubda-Tul-Hussain, J.--This Cr. A. No, 48-ATA-J/06 and M.R. No, 10-ATA/06 have arisen out of the judgment dated 7.11.2006, passed by the learned Judge Anti-Terrorism Court, Bahawalpur, whereby as a result of the trial of the appellant in case FIR No, 58/05, dated 7.3.2005, registered under Sections 394/411 PPC, at Police Station, Sadar, Khanpur, District Rahimyar Khan, in which. Section 302 PPC and Section 7 of the Anti-Terrorism Act, 1997 were also added later due to the death of Muhammad Iqbal, Security Guard of the Bank who was injured in the occurrence which allegedly had created a sense of fear and terror in the public.
2. The appellant, after trial was convicted and sentenced as under: Under Section 302-B PPC: Death sentence and a compensation of Rs, 100,000/- payable to the legal heirs of the deceased and failing which to further undergo six months S.I.
Under Section 397 PPC: Seven (7) years R.I.
U/S. 412 PPC: Seven (7) years R.I. with a fine of Rs, 10,000/- failing which to further undergo three months S.I.
U/S. 7-A of Anti-Terrorism Act, 1997: Sentence of death and compensation of Rs, 100,000/- failing which to further undergo six months S.I.
Sentences awarded under Sections 397 and 412 PPC were, however, ordered to be run concurrently.
He was also granted benefit of Section 382-B, Cr.P.C.
3. The episode which initially started with or was aimed at committing a robbery in the UBL, Baghobahar Branch, Tehsil Khanpur, District Rahimyar Khan besides lootink of money also resulted in encounter between the alleged offender (the appellant and the security guard of the Bank. One Ali Akbar Tahir an incumbent of the said Bank as its Branch Manager lodged the FIR wherein he mentioned that on the fateful day he was performing his duties in the Bank where the other employees, including Muhammad Salim Nazir, cashier, were also performing their duties.
Muhammad Iqbal, Security Guard, as usual was on security charge. In the meantime, Rana Muhammad Yousaf, brother of the aforesaid Muhammad Iqbal, Security Guard, and Abdul Haq, their relative came there and seated on the sofa lying inside the Bank. At about 12.20 noon an unknown person entered the Bank on the pretext of deposit of utility bills but immediately on entering the Bank branch he took out a pistol from his `shalwar' and fired three straight shots on Guard, Muhammad Iqbal, who fell down on the ground. The assailant then picked up the gun of Muhammad Iqbal, Guard, pointed it on the complainant, the cashier and the aforesaid two relatives of the said Muhammad Iqbal. The complainant immediately pushed the siren button whereupon the assailant fired at the complainant as well but luckily he succeeded to save himself.
The accused then took the cashier at pistol point, picked up the cash from his cash box, amounting to Rs, 484350/-, put the same in the jholi' of his shirt and decamped from the scene taking away with him the repeater gun of the Bank as well. Outside the branch he boarded on a motorcycle and accelerated the same with an attempt to run away. Because of the siren alarm one Muhammad Afzal, a police employee posted at a nearby police-post and other persons from around attracted to the spot and they along with the complainant and other witnesses successfully apprehended the robber at some distance as he had fallen from the motorcycle. At the time he was apprehended he told his name as Muhammad Ramzan which later on happened to be Shameer.
Muhammad Iqbal was seriously injured due to firing and was shifted to Zayed Hospital but later on he succumbed to the injuries.
4. The ocular account of the case primarily consists of the averments of the Manager of the Bank and Cashier of the Bank who at the relevant time were holding the branch in the performance of their duties. What they told was that the whole occurrence initiated and ended in their presence and they were the direct victims as well. Muhammad Iqbal, Security Guard, was done away with by the accused immediately on entering the Bank premises. Both the above P.Ws. gave detailed account of the occurrence. They had not only witnessed the firing of the shots by the accused on the Guard but were also targeted by him. According to these P.Ws., pushing of siren button resulted in retaliation of the accused to open fire on the Manager, P.W.1 who having tried to save himself had to be aside whereupon the cashier was taken to the pistol point and the cash lying with him was taken away by the accused. They also narrated the details how the culprit tried to run away and was after a while successfully apprehended because his fall from the motorcycle rendered him helpless.
5. It is pertinently disclosed by P.Ws. that on being apprehended the accused tried to conceal his identity and disclosed his .name as Muhammad Ramzan Korai who was later on identified as Shameer, accused. The details of the cash and packets of the currency notes were also described by these P.Ws. The same were also identified by them as P.1 to P.4, of course, simultaneously narrating the sub-details relevant thereto. The memo. which was prepared as a token of recovery of currency notes Ex.P.B was signed by the P.Ws. besides the recovery memo. of the fire-arms taken from the possession of the accused.
6. Out of the remaining P.Ws. Ali Nawaz, Patwari, has prepared the site-plan whereas Abdur Razzaq, P.W.5, identified the accused as Shameer S/o Ahmad Khan, Caste Gopang, Javed Iqbal P.W.6, son of the deceased identified the dead body of the deceased, Abdus Sattar, P.W.7, and Muhammad Salim, P.W.8 are the police officials who recorded their deposition on formal aspects of the case relating to the FIR as well as the delivery/dispatch of the documents and the articles.
7. The Medical Officer, Dr. Muhammad Yasin, CMO, Tehsil HQs Hospital, Khanpur who had conducted the post-mortem examination on the dead body of Muhammad Iqbal, appeared as P.W.3 and while substantiating the contents of the MLR gave the full account of the examination as well as the remarks recorded by him in relation to the post-mortem, especially with reference to the element of time relevant to the occurrence, the death and the post-mortem examination. He has also deposed the facts relating to the recovery of bullets from the dead body and the post- mortem report Ex.P.D. along with minor details and the X-rays taken in that context.
8. Another materially important witness of the case is Muhammad Afzal, Constable, who at the time of the occurrence was allegedly on patrolling duty and arrived at the place of occurrence on hearing the siren alarm where he saw the accused coming out of the Bank equipped with a repeater gun and holding the currency notes as well in the `jholi' of his shirt. He saw the accused riding on the motorcycle and attempting to run away. He also joined others to chase the accused and ultimately caught hold of him. He has also witnessed the production of the repeater gun and the pistol along with live bullets to the SHO who had by then arrived at the spot. He witnessed the delivery of the recovered amount in the denomination of various notes and packets, which were taken into possession through recovery memo. Ex.P.B., signed by him as well as the other witnesses.
9. Evidence of P.W.5 is also of considerable significance as it goes to the root of the case in relation to the identification of the accused. This is especially significant evidence because he claimed to be previously acquainted with the accused and therefore, was well aware of his particulars, including his original name i,e, Shameer son of Ahmad Khan, caste Gopang. As the accused had told his name to the police and the P.Ws. as Muhammad Ramzan son of Abdul Ghafoor, this P.W.5,. namely, Abdul Razzaq belied him and apprised the SHO that in fact his name was Shamir son of Ahmed Khan.
10.The accused during the trial, it seems, tried to take the benefit of doubt on the basis of the controversy regarding his name. During the cross-examination he also relied upon various suggestions in this behalf but he categorically came out with his specific version in this behalf in his statement under Section 342, Cr.P.C. wherein in reply to the relevant question regarding the reasons for the case against him he stated as under: On 6.3.2005 at 2.00 a.m. I un-boarded from bus at 'Larri Adda' Khanpur as one of my close relative had died and I had to participate in his funeral procession at 7.00 a.m. The SHO P.S. Saddar Khanpur had arrested me from `Larri Adda' Khanpur on 6.3.2005 at 2.00 a.m. on the charges of vagabond and detained me in police lock up. Later on next day he falsely planted this case on me by slipping out the real culprit, namely, Muhammad Ramzan with the connivance of the complainant and P.Ws. I have altogether no connection with the instant occurrence. The P.Ws. are interested persons as they are Bank and Police employees.
11. The case of the prosecution, of course, proceeded on the ocular account of the occurrence and was corroborated with the recovery of the looted amount and the weapons of offence as well as the motorcycle (by riding on which the accused had tried to run away), besides the medical evidence consisting of the statement of the Medical Officer supported by the post-mortem report etc.
12. The prosecution evidence is certainly of the quality that was required to establish the guilt of the appellant. The P.Ws., namely, the Bank Manager and the Cashier are the persons who not only witnessed the occurrence but by any stretch of imagination their presence at the spot could not be disputed. They are also independent witnesses, in that, they had no motive to depose against the appellant nor they had any previous occasion of coming across him in any manner. The cashier is the man who was custodian of the cash taken away by the accused and he was right on pistol point when the accused committed the offence of robbery. The Manager i,e, P.W.1 being close at the spot was directly witnessing the occurrence. The Guard, when shot by the accused, and the cashier, when deprived of the money, were both within his sight. It was he who had pushed the alarm and attracted the attention of the B people in the surrounding to the occurrence. None of these witnesses or even the P.W.5 and P.W.9, had any enmity or motive against the accused. It was a day light occurrence and the accused was apprehended shortly after the commission of the offence. There could, therefore, be no question of doubt about the identity of the accused. All the P.Ws. were independent witnesses, in every legal and factual sense.
13. The recovery of the very amount which was subject-matter of the dacoity as well as the fire- arm which was also property of the Bank and the pistol initially utilized by the accused had certainly provided absolute corroboration to the ocular account. Same is the position of the medical evidence in relation to the death of Muhammad Iqbal, Guard. The injuries sustained by him and the bullets recovered from his dead body have a direct nexus with what was deposed by the eye-witnesses, not only, nexus but again a full corroboration of the ocular account.
14. The ocular account by itself and independent of all other evidence has successfully dilated upon the descriptions of the occurrence and the role of the accused without any ambiguity as to his identification or participation. The corroborative evidence normally is not to be insisted upon but in a case where such qualitative evidence is further corroborated by the recoveries and the medical evidence etc. it leaves no room for any doubt against the prosecution story. We are, therefore, of the view that the corroborative value of the evidence has added the absolute impact to the prosecution evidence and the case as such stands proved against the accused.
15. The learned counsel for the appellant has raised a number of contentions to scratch the prosecution story. He has mainly stated that the P.Ws. are not independent witnesses because they are Bank employees. The factum of their being Bank employees instead of injuring the value of their evidence is rather supportive to the accusation against the accused because the occurrence took place in the Bank, the employees were assaulted and the money was robbed right before the eyes of the P.Ws. They are the most natural witnesses of the occurrence and their independence cannot be impaired merely because they are Bank employees. The contention that brother of the deceased Guard though present at the spot has not been produced, also cannot be destructive to the prosecution. The reason is very simple that firstly, it was not necessary for the prosecution to produce each and every evidence of ocular account and, secondly, in the wake of the presence and the statements of the Manager and the Cashier, who were directly related with the affairs of the Bank no further corroboration by way of further ocular account was necessary.
16. The learned counsel then referred to the statement of P.W.1 wherein he said that the fire shot on him by the accused missed the target and hit the wall but the site-plan is silent about any marks of bullet on the wall. The site-plan is a document which primarily gives the narration/details of the major points of occurrence which it has provided in relation to the primary objects of the prosecution story. The stray bullet that missed the alleged target could not have much value against the direct, strong and natural evidence of the prosecution. It is well settled rule of law that site-plan is not a substantial piece of evidence and absence of certain points which by the circumstances of the case is a mere omission on the part of the I.O. or the draftsman do not provide justification to belie the prosecution story. Reliance in this regard may be placed on Mst.
Shamim Akhtar v. Fiaz Akhtar and two others (PLD 1992 S.C. 211).
17. The learned counsel has also attacked the prosecution version with regard to the details of the currency notes as the same has not been given with reference to the specification of the numbers etc. This, of course, was a half hearted plea of the defence because it would have been absolutely unnatural if these details had also been provided in the evidence.
18. The learned counsel then tried to Bank upon various discrepancies in the prosecution evidence, such as the time taken by the accused to accomplish his venture of robbery, the time taken by the public and P.Ws. in chasing the accused and the time consumed in completing preliminary details of the occurrence and apprehension of the accused. The discrepancy regarding the allegedly looted amount and the one recovered in terms f its quantity has also been referred to in the same context by the learned counsel. It is true that the amount stated in the FIR that had been taken away by the accused was Rs, 484,350/- whereas the one given in the recovery memo. is less by about Rs, 37000/-. The mode and the manner in which the occurrence took place and the accused was apprehended, the difference in this amount could just be natural and the possibility of fall or loss of some money in a emergent and haphazard situation cannot be ruled out. The discrepancies pointed out by the defence essentially are of minor nature. None of these discrepancies goes to the root of the case nor have they shaken the intrinsic value of the incriminating evidence of the witnesses. Where the ocular account is trustworthy, coherent, consistent and confidence inspiring, the minor discrepancies cropped up in the prosecution evidence, without shaking its intrinsic value, are of no avail D to the defence. If an authority is needed reference in this regard may be had to the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCM R 1758) and Mandoos Khan v. The State) (2003 SCM R 884).
19. From the variation of the looted and the recovered amount the learned counsel for the appellant has tried to connect it with the difference of name and consequently with the identification of the accused. It was argued that Ramzan and Shameer were two different persons and it was only to avoid the liability of the missing amount that Muhammad Ramzan was let off and a helpless person, namely, Shameer was introduced as accused because, according to the learned counsel, had Ramzan being there he would have exposed the persons who had misappropriated the aforesaid amount of Rs, 37000/-. This argument is certainly more imaginary rather than real for the simple reason, firstly, because if the amount had to be misappropriated it could not have been restricted to just Rs, 37000/-. Secondly, and what is more important, the identification of Shameer has been absolutely established through the statements of the P.Ws., especially the P.W.5 who had no reason at all for deposing against the accused. In the wake of this unimpaired identity, the contention raised on behalf of the defence in relation to the difference of the lost amount and the recovered amount is of no significance. Even otherwise the rule of substitution does not permit of this plea .because the substitution is rare in murder cases and especially in present one where the concerned persons/parties have no personal interest, enmity or previous acquaintance with the accused.
20. For what has been discussed above, we are of the considered opinion that the prosecution had successfully established its case against the appellant from every angle for his conviction and sentence awarded to him by the learned trial Court u/Ss. 302(b) and 397 PPC and Section 7(a) of Anti-Terrorism Act, 1997. The offence under Section 412 PPC was, however, not formed by the facts of the case as it did not involve the essential ingredients of dacoity by five or more persons.
Accordingly the conviction and sentence as recorded by the trial Court u/Ss. 302(b) and 397 PPC as well as Section 7(a) of the ATA, 1997 is maintained. Resultantly, the appeal filed by the convict- appellant has no force. The same is, therefore, dismissed. The death sentence awarded to the appellant, Shameer, by the learned trial Court is confirmed and Murder Reference No, 10/ATA/2006 is answered in the affirmative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.