KHAWAJA MUHAMMAD SHARIF, CJ. --- This judgment will dispose of Criminal Appeal No. 427 of 2007 filed by Shahid Javed, convict/appellant, who was convicted and sentenced by the learned Special Judge, Anti-Terrorism Court-I, Lahore vide judgment dated 21.3.2007 as under:-
(i) Death: on three counts alongwith compensation of Rs. 200,000/- payable to legal heirs of the deceased under Section 302(b), P.P.C.
(ii) Death: on three counts alongwith fine of Rs. 20,000/- under Section 7(a) of Anti- Terrorism Act, 1997.
(iii) Ten years R.I.: Under Section 324, P.P.C. & 7(b) of Anti-Terrorism Act, 1997.
Capital Sentence Reference No. 27-T of 2007 for confirmation or otherwise of death sentence -of appellant shall also be answered through this single judgment.
2. Brief facts of the case as disclosed in the complaint, Exh. PA, are not on 3.9.2006, the complainant alongwith his two sons namely Sajjad alias Abid & Shahzad and nephews Atta Nawaz and Mushtaq Ahmad were going from their house to the village, on, reaching nearby Tahir Karyana Store a red- colour, car arrived in front of street on main road, Kashif alias Gadoo armed with Kalashinkove, Jamshed Ali alias Toni armed with 44 bore, Asif Ali alias Machoo armed with 222 bore rifle, Shahid alias Doctor armed with 44 bore rifle, Tahir Ali armed with 30-bore pistol deboarded and starting firing due to which Shahzad, Sajjad alias Abid, Atta Nawaz, Mubashar (a passer-by) and Hameed were injured. According to the complainant he and Mushtaq saved their lives by laying down, on the ground. The Complainant further alleged that on hearing the report of firing Safdar Ali, Samraiz and two unknown accused started firing from their house. As per the complainant Mubashar, a passerby, succumbed to the injuries on the. Spot and Shahzad, Atta Nawaz, Sajjad and Hameed injured were taken to the hospital.
3. Khalid Saleem, S.I., PW-14, took over the investigation. He took into possession dead-body of Mubashar, prepared injury statement Ex.PJ, Inquest Report Ex.PK and then went to Ghurki Hospital from where he took into possession dead-bodies of Atta Nawaz and Shahzad deceased. The injury statement of Atta Nawaz is Ex.PL Inquest Report is Ex.PN; the injury statement of dead-body of Shahzad is Ex.PM and Inquest Report Ex.PP and then the Investigator returned to the place of occurrence from where he collected 63 crime empties of Kalashankove, 16 empties of Tripple-2 Riffle, 9 empties of 44-bore rifle and 8 empties of 30-bore pistol vide memo. Ex.PQ. Blood-stained earth from three different places was secured vide memo, Ex.PR, Ex.PS & Ex.PT. From outside the house, three empties of 12 bore gun, 2 empties of 44 bore rifle and from near the electric pole in the street 12 empties of 12 bore and from the roof of the house 4 empties of 44 bore and 3 empties of 44 bore gun were taken into possession vide memo. Ex.PU.
Safdar Ali accused while in custody got recovered 12 bore gun, Samraiz Hussain 12-bore Pump Action, Shahid Javed 44-bore and Aziz Ahmad 30-bore on 20.10.2006 which were taken into possession vide memos. Ex.PV, Ex.PW, Ex.PX & Ex.PY respectively.
Inspector Muhammad Irham also partially investigated the case. After completion of investigation Safdar Ali, Samraiz Hussain, Shahid Javed and Aziz Ahmad were sent to face the trial.
4. At the trial, prosecution in order to prove its case produced 16 witnesses in all. The learned Special Public Prosecutor tendered in evidence report of Chemical Examiner, Ex.PLL, report of Serologist Ex.PMM, report of Forensic Science Laboratory Ex.PNN and closed the case of prosecution.
Accused in their statements under Section 342, Cr.P.C. Pleaded false implication. However, after conclusion of the trial, except the present appellant namely Shahid Javed the remaining accused were acquitted.
5. Learned counsel for the appellant submits that it is a case in which previous enmity is admitted inasmuch as father of Shahid Javed appellant was murdered and including the present appellant his three brothers were involved falsely by Mushtaq, the present complainant of the instant case, was awarded death sentence in that murder case. Further submits that the F.I.R. Was recorded on the basis of a written complaint, which was drafted after due. Deliberation and consultation. Adds that it has come on record that before arrival of Abbas Ali, S.I. Many Police officials had already reached the place of occurrence but no complaint was lodged before them one hour after arrival of said Abbas the complaint was filed before him.
It is submitted that according to complainant there were five accused who were armed with lethal fire-arms and their first target should have been complainant but they did not touch him. It is argued that the complainant failed to explain .As to why he alongwith four other persons started from his house towards bazar. According to learned counsel, the complainant is not a witness to any recovery whatsoever from the spot and he has not even signed the Inquest Report of any of the deceased. It is submitted that the post-mortem was not conducted on the same day but on the next day at 10:30 a.m., which suggests that till then no F.I.R. Was recorded. It is next submitted that both the doctors had stated before the Trial Court that the post-mortem could not be conducted on the day of occurrence because the Police papers were not sent with the dead- bodies. It is stated that participation of the five accused has been disbelieved by the learned Trial Court and the complainant had a strong motive to falsely implicate the appellant.
Further submits that the statement of the complainant is not corroborated by any independent source. According to learned counsel the occurrence had taken place in thickly populated area but not a single shop-keeper inmate of nearby houses was either cited or produced before the Police.
Learned counsels submit that the complainant had introduced false witnesses in as much as Sajjad son of the complainant received injuries on 3.9.2006 at about 11:00 a.m. But he was medically examined at about 02:00 p.m. And discharged from the hospital on the same day and came to his house but for two days he never appeared before the Police to make statement and in fact his statement was recorded on 5.9.2006 at Police Station. The other inured witnesses, according to learned counsel, had refused to support the prosecution case and this is the reason that he did not appear before the Trial Court. It is submitted that the law is now well-settled that mere injury on the person of a PW cannot stamp him as a truthful witness. Sajjad alias Abid is son of Mushtaq as such he is an interested witness and the testimony of such an interested witness cannot be relied upon.
Similarly, it is maintained that Shahnawaz PW-10 is real brother of Atta Nawaz deceased. During cross-examination this witness admitted that his statement was recorded one hour after the occurrence but the F.I.R. Was recorded at 12:20 p.m. Further states that after making his statement the witness went to his house as such his conduct is unnatural, he neither accompanied the deceased nor the injured PWs. It is argued that Shahnawaz PW-2 had a strong motive to falsely implicate the present appellant. According to learned counsel the ocular account has come from the mouth of interested and inimical witnesses. It is maintained that in such a situation when the witnesses are -inimical and interested there should be independent and strong corroboration to their testimony.
So far as recoveries are concerned it is submitted by the learned counsel that the Investigator has admitted that these weapons were not used in the occurrence and this is the reason that the same were not sealed into a parcel and even were not sent for comparison with the empties. It is argued that the appellant alongwith three other accused on the very first day was taken into custody but the Police with mala fide did not show their arrest. Learned counsel has drawn our attention to page 166 of the Paper Book.
Learned counsel submits that the settled law is that first version of the accused should be taken into consideration while deciding the case. According to learned counsel on 27.9.2006 many persons appeared before the Investigator and supported the plea of alibi of appellant. Learned counsel submits that the two investigators had stated before the Trial Court in cross-examination that including the appellant three other accused persons fired from the roof top of Safdar accused in order to save themselves after the occurrence. It is submitted that the complainant had not challenged this part of the investigation by the Investigator before any higher forum. According to learned counsel the first version of the appellant was found as correct by the Police.
Concluding his submissions learned counsel submits that the prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
6. On the other hand, the learned Additional Prosecutor General assisted by learned counsel for the complainant submits that it is a case of promptly lodged. F.I.R. With specific role to the appellant and the weapon of offence the appellant was carrying is fully mentioned therein. Further submits that all the three eye-witnesses have supported the case of the prosecution and the fire-arm which the appellant was carrying at the relevant time was recovered from him. Adds that 8 crime empties of 222 rifle were taken into possession from the spot. According to learned public prosecutor motive is a double-edged weapon.
Learned counsel for the complainant adds that evidence of witnesses cannot be brushed aside simply on hyper technicalities;, the appellant had not denied his presence at the spot; he did not produce any documentary or oral evidence in support of his plea of alibi, press clipping is not admissible in evidence as ordained in Article 147 of the Qanoon-e-Shahadat Order. According to learned counsel Abid injured appeared before the Police when he was summoned and the duration between injury and his medical examination coincides with the time of occurrence.
7. We have heard learned counsel for the parties at great length and gone through the record with their able assistance.
8. In the instant case the occurrence had taken place at 11:20 am in the area of Jallo Pind which is at a distance of 4-kilometers from Police Station Batapur While the matter was reported to the Police through written complaint, Ex.PA by Mushtaq Ahmad at the place of occurrence at 12:20 p.m.
The same day and the formal F.I.R., Ex.PA/1, was recorded by Ahmad Khan, A.S.I. In all, 11 accused were named in the F.I.R. Kashif alias Gudoo, Jamshed alias Toni and Asif Ali alias Machhu sons of Javed Iqbal are proclaimed offenders. Three accused namely Safdar, Samraiz and Aziz were acquitted by the learned Trial Court. Two unknown accused were later on known as Iqbal and Ashraf, they were accused , of abetment and were acquitted by the Trial -Court. All the three accused who are proclaimed offenders are real brothers of Shahid Javed appellant.
9. There are three deceased in this case namely Shahzad, Atta, Nawaz and Mubashar while there were two injured witnesses, namely Sajjad alias Abid and Hameed: The ocular account was furnished by Mushtaq Ahmad PW-1, Sajjad alias Abid PW-2 and Shahnawaz PW-10. Mushtaq Ahmad, complainant, while appearing as PW-1 before the Trial Court reiterated what he had stated in the F.I.R. He was put to the test of lengthy searching cross-examination but nothing in favour of the defence could be brought on record.
10. Sajjad alias Abid PW-2 is son of Mushtaq Ahmad, complainant. He, during the occurrence, received a fire-arm injury on his person. The defence itself has brought on record his presence during the cross-examination. "I was at a distance of 25/30 feet from the corner of main road and Darbar Wali Street when. I received fire shot". Tl^e defence neither suggested to the PW nor to the doctor who medically examined him that the injury on his person was with friendly hand or self- suffered. There is no denying the fact that mere injury on the person of a witness does not stamp him to be a truthful witness but all the same in the instant case from the trend of cross- examination by the defence we are fully satisfied that" he was present at the spot and during the occurrence received a fire-arm injury.
The other eye-witness is Shahnawaz who appeared as PW-10. He deposed on the same lines as was stated by the other two eye-witnesses namely Mushtaq Amjid and Sajjad. This witness too was cross-examined by the defence but his testimony remained un-shattered.
11. Dr. Rafaqat Ali PW-12 on 4.9.2006 conducted post-mortem examination on the dead-bodies of Shahzad and Mubashar. The injuries on their persons were with firearm. The duration between injury and death was immediate while between death and post-mortem as 18 to 24 hours. The occurrence had taken place at 11:20 a.m. On 4.9.2009 so the duration given by the doctor between the death and post-mortem coincides with the time of occurrence given by the prosecution. The said doctor also medically examined Abid at 2.20 p.m. On 3.9.2006 and found a fire-arm injury on his person.
Similarly, Doctor Muhammad Javed Munir, PW-13, at 11:00 a.m. On 4.9.2006 conducted post-mortem examination on the dead-body of Atta Nawaz deceased and opined the duration between death and post-mortem as 22 to 24 hours.
12. The ocular account furnished by the eye witnesses whose testimony rings true and cannot be brushed aside without a pinch of salt, specially that of the injured Sajjad alias Abid is fully corroborated by medical evidence. The number of injuries on the person of three .Deceased also suggests that the accused were large in number.
13. 63 crime empties of kalashinkove, 16 of 222- rifle, 9 of 44-bore rifle and 8 of 30 bore pistol were taken into possession from the place of occurrence vide memo. Ex.PQ. Shahid Javed appellant was arrested, according to Police, oh 22.9.2006. He got. Recovered rifle 44-bo;e P-18 on 28.9.2006 which was taken into possession vide memo. Ex.PX. It can be inefficiency, negligence or mala fide on the part of the investigator in not sending the crime empties and the fire-arm recovered on the Plantation of the appellant to the Fire-Arms Expert for comparison.
14. So far as motive is concerned it was stated by the complainant that there was previous enmity between the parties. In fact father of Shahid Javed appellant was murdered by Mushtaq Ahmad complainant of this case and his the relatives and Mushtaq Ahmad was sentenced to death so in our view the motive was there with the appellant to take the revenge of the murder of his father.
15. It was a case of promptly lodged details of the occurrence, the role played by each accused and the weapon of offence each accused was carrying was described with full particulars. The parties were known to each other, the occurrence had taken place in broad day light so there was no question of mistaken identity.
16. So far as the contention of learned counsel that the appellant was arrested on the same day but the Police kept him in illegal custody for 19 days is concerned, during this period neither any .Habeas corpus petition was filed before any Court nor any written complaint was made to the higher Police officers. The other main contention of learned defence counsel was that the first version of the appellant was that he had not participated in the main occurrence but the appellant did not produce a single witness to prove the same. The law is that whenever an accused person takes a specific plea, the onus lies upon him to prove the same. It was not even suggested to the Investigators that such and such persons were produced by the appellant before the Police to support his plea of alibi. It has been admitted by the appellant before the Trial Court that though he did. Not take part in the occurrence but he had fired from the house of Safdar, acquitted accused. By implication, in our view, the appellant has admitted his presence at the spot.
17. After having heard learned counsel for the parties, attending to the submissions made by them and perusing the record carefully with their able assistance, we are of the considered opinion that the prosecution has proved its case against Shahid Javed appellant through ocular account which is fully corroborated by medical evidence. Resultantly, instant appeal filed by the appellant is dismissed, the conviction and sentence recorded against him by the learned Trial Court vide impugned judgment is maintained in toto, the death sentence is CONFIRMED and the Capital Sentence Reference is answered in the AFFIRMATIVE.