' TARIQ PARVEZ, J.---Through one consolidated judgment dated 30-9-2004 by the learned Division Bench of the Lahore High Court, Murder Reference No, 72-T of 2002, Criminal Appeal No, 301-J of 2002 and Criminal Appeal No, 1237 of 2002 were disposed of whereby, two criminal appeals were dismissed and the murder reference was answered in affirmative. Three Jail Petitions bearing Nos.422 of 2004, 423 of 2004 and 449 of 2004 were filed by three appellants namely Abdul Rehman, Iqbal Shah and Karam Shah respectively.
' On 18-1-2006 the above petitions were converted into three appeals with the leave of the Court with observation "to reappraise the evidence to ascertain the quantum of sentence".
2. Short and relevant facts of the case are that on 18-3-2002 Muhammad Afzal, Driver Constable of the Police Department reported the occurrence for which F.I.R. No,66 of 2002, Police Station Khushab was registered.
' According to the complainant he is a driver of Police Bus No,KB-4040 which was used for transporting the under-trial prisoners from jail to trial Court and back. It was stated by him that on the day of occurrence he and large number of police contingent of which Muhammad Raza Khan, ASI was incharge were taking 36 under-trial prisoners from Jauharabad Courts to District Jail, Shahpur and when they reached Sabzi Mandi of Khushab, he heard some hue and cries in the rear portion of the bus on which he stopped the bus and saw Iqbal Shah the appellant was throwing chillies in the eyes of policeguard/constable and when the police party escorting the under- trial prisoners, wanted to stop, but Nasrullah (P.O.) armed with .30-bore pistol fired at police constable Shafqat Ali which hit him on the left side of chest. Mukhtar Hussain Shah (dead accused) armed with .12-bore pistol fired at Muhammad Ramzan, Constable which hit him on the back. Abdul Rehman appellant was also armed with .12-bore pistol fired at Ashiq Ali, Constable who was hit in the front of his abdomen. Abdul Rehman son of Muhammad Ramzan one of the under-trial prisoners got up and wanted to stop the accused making firing but was hit with the shot-fire of dead accused Mukhtar Hussain Shah and Nasrullah (P.O.). Mukhtar Hussain Shah (dead accused) also fired at Attaullah, Constable and with the fire shot of Abdul Rehman, Alam Sher, Constable was hit.
' It was further stated that Mukhtar Hussain Shah dead accused snatched official G-III rifle from Shafqat Ali Constable, whereas Abdul Rehman appellant snatched rifle from Muhammad Bashir Constable, and that thereafter the accused namely Iqbal Shah, Abdul Rehman, Nasrullah, Mukhtar Hussain Shah, Maqbool Ahmed, Mehboob Ahmed and one Parvez after opening the door of the police Van successfully escaped.
3. After the recording of F.I.R. Which was recorded by Jehan Khan, Inspector S.H.O. P.W.24, the said inspector proceeded to the scene of crime and has taken into possession five empties of .12-bore memo Exh.PSS and four empties of .30-bore pistol through memo. Exh.PTT.
4. The main investigation remained in the hands of Inspector Jehan Khan, P.W.24 who vide recovery Exh.PQ has taken into possession handcuffs on the pointation of accused Maqbool Ahmed. Vide recovery Exh.PR handcuffs were taken into possession on pointation of Abdul Rehman appellant and Ex. PS is memo. In respect of recovery of handcuffs on the pointation of Muhammad Iqbal appellant. All these were pointed out by the three accused on 24-3-2002.
5. On 25-3-2002 through memo. Exh.PUU a .12-bore Carbine and G-III rifle was recovered from sugarcane field on the pointation of appellant Abdul Rehman. On the same date and vide Ex.P.V.V.
Another .12-bore Carbine was recovered from sugarcane field on the pointation of Muhammad Iqbal appellant. Karam Shah appellant was also arrested on 25-3-2002.
6. Inspector Khuram Anwar, P.W.25 on 19-3-2002 i,e, on following day of occurrence had received information that one of the runaway accused namely Mukhtar Hussain Shah was present in the house of one Abid Hussain he, therefore arranged a police party and raided the house for the arrest of Mukhtar Husain Shah. On entering the house, Mukhtar Hussain Shah who was duly armed with G-III rifle instead of surrendering to the police started firing therefore, police party also fired.
Accused was ultimately found lying murdered in a room with a G-III rifle and two empties of same bore lying beside him whereas thirteen empties were recovered from the courtyard for which memo Exh.PYY was prepared.
7. As the accused party has run away/escaped from the escort of the police and were under-trial prisoners and efforts were made to rearrest them resulting into re-arrest of three appellants namely Maqbool Ahmed, Mehboob Ahmed and Parvez.
8. Record is silent as to how Parvez accused again became absconder however, he was not put to trial and remained un-arrested until the trial was concluded.
9. Keeping in view of the seriousness of the case where not only under-trial prisoners from the custody of police have escaped but in the occurrence two police constables namely Shafqat Ali and Ashiq Ali were murdered whereas three police constables i,e, Alam Sher, P.W.20, Muhammad Ramzan, P.W.22 and Attaullah, P.W.23 had sustained fire arms injuries, and case of the accused having created panic in the area and caused insecurity to public-at-large, the case for trial was placed before learned Special Judge, Anti-Terrorism at Sargodha.
' On 29-6-2002 charges were framed and read over to the accused facing trial who were charged on fourteen counts.
10. At the trial prosecution examined twenty-five witnesses including three injured witnesses i,e, P.Ws.20, 22 and 23. Muhammad Afzal, Driver of the bus in which occurrence has taken place appeared as P.W.21.
11. After the close of evidence by the prosecution all the accused were examined under section 342, Cr.P.C. But they declined to produce evidence in defence and have also not appeared in their own defence under section 340(2), Cr.P.C.
12. Vide judgment dated 6-7-2002, the learned Special Judge, Anti Terrorism at Sargodha convicted the five appellants under different sentences with their specific role with each crime as is given below:-- "Since accused Abdul Rehman had fired and injured Ashiq Ali deceased as well as P.W. Alam Sher injured, therefore, the contention of learned defence counsel that he did not repeat the fire shot and that is an extenuating circumstance, does not substantiate from the record. He had shared the common intention with his other co-accused Nasrullah and Mukhtar Shah. Shafqat Ali Constable had lost his life sustaining fire shot injury at the hands of accused Mukhtar Shah (since dead).
Accused Iqbal Shah not only shared the common intention but also endeavoured to facilitate the crime by throwing chillies in the eyes of police guard, therefore, I hold accused Iqbal Shah and Abdul Rehman liable for the murder of Ashiq. Ali and Shafqat Ali Constables and sentence each of them to death on each count with order to pay Rs,two lac to the legal heirs of each deceased collectively in equal share under section 544-A, Cr.P.C., recoverable as land arrears and in default whereof each defaulter shall further undergo six months' S.I. On default of each count under section 302(b), P.P.C. Read with section 34, P. P. C .
' Accused Abdul Rehman and Iqbal Shah are also convicted under section 324, P.P.C. Read with section 34, P.P.C. On each count of launching murderous assault on Alam Sher Constable, Muhammad Ramzan Constable and Atta Ullah Constable and each of them is awarded the sentence of ten years' R.I. With fine of Rs,50,000 which if recovered, shall be paid to aforementioned three injured Constables in equal share under section 544-A, Cr.P.C. And in default whereof the each defaulter shall further undergo three years' R.I.
' Since the five accused persons did not participate in the occurrence, therefore, the offence of dacoity under section 395, P.P.C. Does not substantiate and accused Abdul Rehman is convicted under section 392, P.P.C. For 'snatching and taking away the rifle G-III from Bashir C-178 and is awarded the sentence of ten years R.I. With fine of Rs,10,000 and in default whereof to further undergo one year R.I. Since the recovery of rifle G-III was considered to be doubtful, therefore, accused is acquitted of the charge under section 411, P.P.C. Altering that from section 412, P.P.C.
Since the offence of dacoity did not establish.
' Since accused Iqbal Shah, Abdul Rehman, Mahboob Ahmad and Maqbool Ahmad had escaped from the lawful custody and the offence proved against them, therefore, each of them is convicted under section 224, P.P.C. And each of them is awarded the sentence of two years' R.I.
' Accused Iqbal Shah and Abdul Rehman deterred the police party from the discharge of their lawful duty forcibly, therefore, each of them is convicted under section 353, P.P.C. Read with section 34, P.P.C. And each of them is awarded the sentence of two years' R.I.
' Accused Abdul Rehman and Iqbal Shah are convicted and sentenced under section 7 clause (a) of Anti-Terrorism Act 1997 for committing the murder of Shafqat Ali and Ashiq Ali in furtherance of their common intention and launching murderous assault on these deceased police Constables while they were on their duty. As Ashiq Ali Constable No, 367 was succumbed to the injuries caused by accused Abdul Rehman, therefore he is awarded the sentence of death with fine of Rs,50,000 and in default whereof to further undergo for three years' R.I. Since accused Iqbal Shah had not caused any injury to any of the deceased, therefore, he is awarded the imprisonment for life with fine of Rs,50,000 and in default of payment of fine, three years' R.I.
' Accused Abdul Rehman and Iqbal Shah in furtherance of their common intention caused grievous bodily harm to injured P.Ws. Alam Sher, Muhammad Ramzan and Atta Ullah Constables, therefore, each of them is awarded the imprisonment for life with fine of Rs,25,000 in default whereof to further undergo two years R.I. Under section 7 clause (c) of Anti-Terrorism Act 1997.
' All the sentences of imprisonment shall run concurrently with benefit of section 382-B, Cr.P.C, except the sentence of default of payment for compensation and fine.
' Since accused Karam Shah facilitated the crime under section 302(b), P.P.C. Read with section 34, P.P.C. By providing firearms etc: to his brother/co-accused Mukhtar Shah (since dead) so he is awarded the sentence of life imprisonment (on two counts). He is further convicted under section 324, P.P.C. Read with section 34, P.P.C. On each three counts for murderous assault on injured P.Ws.
Alam Sher, Ramzan, and Atta Ullah Constables and award him the sentence of seven years' R.I. On each count with fine of Rs,10,000. In default whereof to further undergo one years' R.I. On each count of default. He is also convicted under section 353, P.P.C. Read with section 34, P.P.C. And is awarded the sentence of one year R.I. He managed the escape of his brother accused Mukhtar Shah from police custody and committed an offence punishable under section 225, P.P.C. So he is convicted and awarded the sentence of two years' R.I. Under section 225, P.P.C.
' He is acquitted of the charge under section 395, P.P.C. Because there is no evidence sharing common intention for robbing the rifle G-III from Shafqat Ali deceased constable.
' All the sentences shall run concurrently with benefit under section 382-B, Cr.P.C., except the sentences for payment of fine.
' The case property i,e, the last-worn blood-stained clothes of deceased, with blood stained cotton swa bs and blood-stained clothes of all the injured persons be kept intact for the trial of accused Nasrullah (since P.O.) and Parvez (not arrested). The carbine P18 and P20 be confiscated in favour of State. The cash etc. Recovered from accused Karam Shah at the time of his arrest be returned to him. The G.III rifles be handed over to S,P. Jauharabad, along with Hand-cuffs P1, P2, P3.
' The proceedings of the case be sent to Hobble Lahore High Court Lahore for confirmation of death under murder reference, and accused Abdul Rehman as wall as Iqbal Shah shall be hanged by necks till their death subject to confirmation of their death sentence by Hobble Lahore High Court Lahore. The copies of judgment are supplied to the convicts, free of cost as well as to learned PP, under their thumb impression and signatures."
13. Learned counsel appearing for the appellants has made the following submissions by arguing that as far role of Karam Shah appellant is concerned except for the statement of Yar Muhammad, P.W.17 there is no evidence against him. It is argued that no chillies powder was recovered from inside the bus nor is so mentioned by the doctor who has conducted post-mortems and submitted Medico-legal Reports regarding injured constables. His submission is that none of the injured was given treatment for eye soaring etc. ' Somewhat, similar argument was advanced in respect of Iqbal Shah appellant who has allegedly thrown chilies powder on the faces of escorting police party, in order to disable them and to enable accused under-trial prisoners to escape. It was also argued that bus driver namely Muhammad Afzal cannot be an eye-witness as he was sitting on the driving wheel and to see at his back was impossible while driving and even otherwise once the occurrence has started and there was large number of police personnel and large number of under-trial prisoners, it is next to impossible for any eye-witness to specify the role of individual accused.
14. Learned counsel further argued that Iqbal Shah appellant remained unarmed and conviction and sentence recorded against him on the basis of application of section 34, P.P.C. Is illegal and he is entitled to outright acquittal. Acquittal is also sought for Karam Shah for not participating in the occurrence as no overt role in killing of the two police constables and for causing injuries to others, has been attributed to Karam Shah.
15. In alternate, it was argued that since the occurrence has taken place in the bus there was confusion and panic inside the police Van and no definite evidence vis-a-vis role of individual accused can be given, in the given circumstances, sentence of death awarded to appellants Abdul Rehman and Iqbal Shah are harsh and required to be reconsidered and are also required to be set aside.
16. Learned counsel appearing for the State (Deputy Prosecutor-General, Punjab) has argued that two innocent police officials have lost their lives while discharging their official duties and three other have sustained firearms injuries. It was argued that it was a case of preplanning and utter violation of law where an arranged effort was made to disable the police escort and escaped from their lawful custody.
17. We first take up the case of Karam Shah appellant who has been assigned the role of facilitating/abetting the crime by providing chillies powder and firearms to the under-trial prisoners which they have used in the commission of crime.
18. A crucial question which requires deliberation and investigation by ,us is whether Karam Shah has provided grinded chillies (powder) to be used by the under-trial prisoners towards facilitation to escape. Doctor Mazhar-ul-Islam, P.W.1 who has prepared medico legal reports of the injured was specifically asked if he has given any treatment to any of the injured regarding their eyes to which he replied the patients were conscious and they had made no complaint about their eyes.
' Similarly, Jehan Khan, Inspector, P.W.24 who is Investigating Officer has admitted in the cross- examination that in his inspection note he has nowhere recorded to have found chillies powder lying on the seats of the police Van or on the floor of the bus. Thus the supply of chillies which is attributed to Karam Shah would negate the role of facilitation as far Karam Shah is concerned.
' Yar Muhammad, P.W.17 was examined who stated that he and Muhammad Ramzan, P.W.22 had come to the Court premises as he was to consult his Advocate, that he saw Karam Shah who took out the clothes from the bag and placed two carbine, one .30-bore pistol and seven rounds in the clothes and when the under-trial prisoners were brought to be taken back to the jail and were boarding the bus said clothes in shopping bag were delivered to Mukhtar Hussain Shah accused (since dead).
19. We find that no evidence has been produced by the prosecution to substantiate the presence of Yar Muhammad, P.W.17 at the relevant time, Muhammad Riaz his alleged companion has not been examined. The advocate to whom he had come to seek instructions and to whom he was to consult was not produced in the witness box. His village is 25-30 kilometers away from Jauharabad and he admits that on the said date he had no case pending for appearance in a Court at Jauharabad. He admits to be well conversant with the Courts and the police but having seen the accused Karam Shah having carbine and pistol never informed the police so to alarm them that arms and ammunition have been delivered to under-trial prisoners. He admits that he wanted to inform the police but he did not as the police Van has left away. He further admits that police Van left the Court premises some six/seven minutes after he saw that the weapons were delivered to under-trial prisoners.
20. Not only when police Van was having its own police party comprising of large number of police personnel including one ASI as their Incharge who must be present at the time of boarding of the under trial prisoners and at the time of departure of the bus then it is not understandable as to why P.W., Yar Muhammad did not communicate to the police about what he has seen.
21. It cannot be denied that firearms were used in the commission of the crime by the under-trial prisoners but it is not certain that it was none else but Karam Shah who has supplied these firearms. Therefore, Karam Shah is entitled to be given benefit of doubt and his case is not covered on the basis of section 34, P.P.C., nor there is unimpeachable evidence against him.
' Next, we will take up the case of Iqbal Shah another co- accused and another under trial prisoner who has been attributed the role of throwing chillies on the faces of police escort, so to disable the police party and to enable the under-trial prisoners to escape.
22. Inspector Jehan Khan, P.W.24 is Investigating Officer his performance regarding arrest and recovery have been given by us in some earlier paras of this judgment, he admits that no fire-arm injury is attributed to Iqbal Shah. He further admits that none of the constables were medically treated due to suffering from effects of chillies. He further admits that in his inspection note he has not recorded that chillies powder was lying scattered on the seats or on the floor of the bus.
23. Whether or not chilies powder was used but the act of throwing chillies powder is attributed to Iqbal Shah appellant. Iqbal Shah appellant is one of the under-trial prisoners travelling along with others in the police Van. All the three injured eye-witnesses including Muhammad Afzal the complainant who was a bus driver has assigned rote of throwing chillies to Iqbal Shah. They were all natural occupants of the police Van discharging their duties to escort the under-trial prisoners.
They had no enmity with Iqbal Shah appellant to attribute him some overt act. There were other under-trial prisoners some of them have escaped namely; Maqbool, Mehboob and Parvez who managed to escape but no role like the one is given to Iqbal Shah was attributed to the three named accused.
24. Since overt act has been attributed to Iqbal Shah by four disinterested witnesses, he was definitely sharing common intention and was part of the predetermined plan for escape therefore, his involvement in the crime is proved. However, whether he shall be treated at par with AOdul Rehman his co-accused requires reappraisal. He has not been attributed to be armed with any firearms nor assigned the role of firing. No evidence is led that it was within his knowledge that for escape from the police custody his co-accused would cause death of the two police constables and injuries to three others. The role played by him in the commission of the crime appears to be secondary and minor. He is therefore, entitled to mitigation in sentences. We, therefore allow his appeal partially in the terms to be detailed in the concluding paragraph of our judgment.
25. We are left with the case of appellant Abdul Rehman. There is ocular account against him comprising statement of Alam Sher, P.W.20, Muhammad Ramzan, P.W.22 and Atta Ullah, P.W.23 all three police constables and they have sustained firearms injuries, besides there is evidence of Muhammad Afzal, driver of the police Van who has also charged him with other co-accused for firing at the deceased and injured.
' The specific role has been attributed to Abdul Rehman for use of .12-bore pistol and causing the death of Ashiq Ali, constable and also firearms injuries to Alam Sher, P.W. And he along with his absconding co-accused and the dead co-accused Mukhtar Hussain Shah has used the firearms thus he has rightly been held liable under section 34, P.P.C. For the act of his co- accused namely Nasrullah the absconder and Mukhtar Hussain Shah (dead accused).
26. There are no reasons as to why the four eye-witnesses who are all police personnel will charge the appellant Abdul Rehman for the crime. Abdul Rehman has also led to the recovery of handcuffs when under police custody and also the recovery of rifle snatched from police. His involvement in the crime is proved beyond any shadow of doubt.
27. Whether there is any mitigating circumstance in favour of Abdul Rehman, we find none. He being under-trial prisoner and having equipped/armed himself with the firearms and having used the firearms for causing death and for causing injuries to P. Ws. Would show that he has acted in a desparate and brutal manner, therefore no leniency in sentence.
' We therefore, conclude that Criminal Appeal No, 13 of 2006, filed by Karam Shah appellant is allowed, his conviction and sentences are set aside. He is acquitted of the charges and be released forthwith, if not, required in any other case.
' Conviction of Iqbal Shah appellant in Criminal Appeal No,12 of 2006, are maintained except that death sentence awarded to him under section 302(b), P.P.C. Is converted into life imprisonment.
' Criminal Appeal No, 11 of 2006, filed by Abdul Rehman appellant is dismissed being devoid of any merit. His conviction and sentences are maintained, but to run concurrently. Sentences of Iqbal Shah appellant shall also run concurrently. They are, however given benefit of section 382-B, Cr.P.C.