' RAUF AHMAD SHEIKH, J.---The appellant has assailed the vires of judgment dated 7-2-2008 passed by the learned Judge, Special Court-II Anti-Terrorism, Rawalpindi and Islamabad Capital Territory, in case F.I.R. No,14 dated 18-1-2006 Police Station Saddar Barooni, Rawalpindi, under sections 302/324/186/353/148/149, P.P.C. And section 7, A.T.A., 1997, whereby he was convicted under section 7(a) of the Anti-Terrorism Act, 1997 and was sentenced to death with fine of Rs,.60,000 and in case of default thereof to undergo R.I. For six months.The learned trial court submitted CSR No,05-RWP of 2008 for confirmation or otherwise of death penalty awarded to the appellant. As both these matters are interconnected and interlinked so are being decided through this single judgment.
2. The facts, in brief, as set-forth in the F.1.R. (Exh.PA/1) recorded on the complaint (Exh.PA) submitted by Shahid ,Pervaiz, DSP (Investigation), Rawalpindi, are that during investigation of case F.I.R. No,37 of 2006 dated 17-1-2006 Police Station Airport under section 365-A, P.P.C. And 7, A.T.A., 1997 and case F.I.R. No,32 of 2006 dated 174-2006 under sections 324/353/186/148/149, P.P.C. And section 7, A.T.A. P.S. Westridge, District Rawalpindi, it transpired from the documents recovered on search of Car No,318/RL Suzuki Alto left by the accused persons that Zaheer Abbas son of Abdul Rashid (appellant), resident of Kohala Khurd and others were involved in abduction for ransom of Jehanzeb Malik. The competent officers were consulted, who directed that the SHO, Police Station Saddar Barooni and Suleman Ayaz Khan, ASP/SDPO Circle be provided help and support. On this the complainant alongwith Muhammad Sharif, S.I., Gunman Muhammad Irfan C/302 and one section of Elite Force armed with Rifles arrived at Police Station Saddar Barooni on official vehicles, where Abrar Sarwar, S.I./SHO, Police Station Saddar Barooni, Nazir Ahmad, S.I, Muhammad Ramzan, S.I., Nasrullah Khan, S.1., Muhammad Akbar HC/1286, Lakhat Raza HC/4757, Amjad Mehmood C/1098 and Ghulam Abbas C/393, all armed with the Rifles were ready, who were boarded on official vehicles. Suleman Ayaz, ASP/SDPO, told that he would join on the way. They left for the residence of the accused persons for arrest of Zaheer Abbas, etc. And recovery of Jehanzeb abductee. On the way ASP Suleman, Ayaz along with driver Muhammad Kazim C/496 and Mazhar Hussain LHC/437 also joined them at Bakra Mandi Chowk. At about 10-45 p.m. They arrived at the residence of the appellant, which was at a distance of one Kilometer from main Chakri road. Suleman Ayaz, ASP, gave directions to the officers and officials, who encircled the house. The bulbs of electricity were lit in the Verandah and courtyard. Suleman Ayaz stood behind the wall of the main gate and warned the inhabitants that their house has been encircled by the Police so all the males and females should come out as Zaheer Abbas and his accomplices were to be arrested. On these seven persons out of which two were armed with Kalashnikovs, two with .12 bore Guns and three with .30 bore Pistols emerged from the rooms adjacent to the Verandah and were seen by the Police employees from their respective positions. Suleman Ayaz asked them to surrender after throwing their arms. On this all the seven persons took hide behind the walls of the rooms and raised Lalkara that they would kill all the Policemen and opened fires. The Police party in order to save their lives and avoid any loss of life took shelter behind the walls around the house and on low-lying land. The accused persons armed with .12 bore Guns opened fires on Suleman Ayaz, ASP, with their respective Guns, who was seriously injured. The Police party encircled the accused persons and arrested Abdul Rashid son of Karam Din armed with .12 bore Gun, Shakil Abbas armed with Kalashnikov, and Asad Abbas armed with Pistol. Four persons out of which one was about 26/27 years old, of moderate, height, blackish complexion, wearing Shalwar Qameez and armed with .30 bore Pistol, second young man, aged about 25/26 years, of blackish colour, 5' and 8/9" tall with moustaches and armed with Pistol, the third of short height, aged about 23/24 years of blackish colour and armed with Pistol and the 4th about 22/23 years told of blackish colour, 5" 8/9' tall and armed with Kalashnikov fled away by taking advantage of darkness. They were seen in the light of the bulbs and could be recognized on face to face confrontation. Suleman Ayaz Khan, ASP, was sent to Rawalpindi for treatment in seriously injured condition, who died subsequently. Abdul Rashid holding .12 bore Gun i,e, the weapon of offence in his right hand, Asad Abbas holding Pistol in his right hand and Shakeel Abbas holding Kalashnikov in his both hands, which were in working condition were apprehended at the spot and all the arms were sealed into parcels.
3. The appellant and 5 others were sent up to face the trial, whereas their co-accused Zaheer Abbas was declared as P.O. They were charged under sections 7(a) and 7(b) of the Anti-Terrorism Act, 1997. They pleaded not guilty and claimed the trial.
4. The learned trial court. After conclusion of the trial convicted the appellant as above, whereas the remaining 5 accused persons were acquitted.
5. The prosecution has examined 16 witnesses in support of its allegations in addition to documentary evidence. The medical evidence was adduced through Dr. Muhammad Ashraf, C.M.O. (P.W.8), who stated that on 18-1-2008 at 3-30 a.m., he conducted the postmortem examination of the dead body of Suleman Ayaz Khan, ASP in District Headquarters Hospital, Rawalpindi. He found following injuries on his person:--
(1) Multiple small lacerated wounds of entry of the arm with marginal inverted each measuring 0.25 cm x 0.25 cm on the left front of chest in an area of 10 x 10 cm just below the left nipple and slightly laterally to it.
(2) Eight small lacerated wounds of entry of the fire arms with marginal, inverted each, measuring 0.25 cm x 0.25 cm on the left front of chest in an area of 6 x 6 cm below the left nipple 16 cm lateral to mid sternal line.
(3) Multiple small lacerated wounds of fire arm with marginal inverted each measuring 0.25 x 0.25 cm on the upper part of left arm on anterior aspects (10 in number).
(4) Abrasion 2 x 3 cm lying vertically on the bridge of nose.
(5) Abrasion 2 x 0.7 cm on the right side of forehead just above the eyes-brow.
(6) Abrasions 1 x 1 cm. 1 x 0.7 cm. On the left side of forehead just above the right corner of left eye- brow.
' He opined that injuries Nos.1 and 2 were caused with fire-arm and were ante mortem, which caused massive damage to the vital organs of the body i,e, heart arch of aorta leading to profused bleeding, shock and ultimately death. Such injuries are sufficient to cause death in the ordinary course of nature. Injury No,3 was caused by fire-arm weapon and rest by blunt weapons and were ante mortem in nature. The probable time between the injuries and death was within few minutes and between the death and postmortem was 4 to 12 hours. He proved the postmortem report (Exh.PO), injury statement (Exh.PP), application for postmortem examination (Exh. PQ) and inquest report (Exh.PR).
6. The ocular account was adduced through the complainant Rana Shahid Pervez, DSP (P. W.13), Abrar Sarwar, S.I. (P. W.12) and Nazir Ahmad, SI (P.W.14). Rana Shahid Pervez (P.W.13) almost reiterated the contents of the complaint (Exh.PA). He, however, added that he along with other Police employees went to Westrdige in connection with investigation of case F.I.R. No,37 dated 17-1- 2006 under section 7, A.T.A., 1997 and section 365-A, P.P.C. Because the ransom amount was to be paid there. One person received the money from the relatives of the abductee and fled away. The Police contingent rushed to Alto VXR Car, which was parked at a short distance. The accused persons ran away. The document regarding hiring of the said car was recovered and the name, I.D.
Card number and photograph of Zaheer Abbas were available on the same. They realized that Zaheer Abbas was involved in kidnapping. The relatives of the abductee informed that he was an employee as P.A. Of the father of the abductee so they became sure that Zaheer Abbas is involved in kidnapping. He informed the senior officers, who directed him to go Police Station Saddar Berooni, Rawalpindi. He was in contact with ASP Suleman Ayaz Khan deceased. They formed a raiding party in which Abrar Sarwar, S.I./SHO, Police Station Saddar Berooni, Sharif, S.I. Nasrullah, S.I., Nazir Ahmad, S.I. And others were included and a section of Elite Force was also with them. Suleman Ayaz Khan, ASP, joined them at Bakra Mandi (Goat Market) Chowk. They arrived in village Kohala Khurd and encircled the house of Zaheer Abbas. Suleman Ayaz Khan, who was Incharge of the raiding party gave directions to the raiding party and himself went at the door of the house and knocked it. The bulbs in the Verandah were lit. Seven persons came out of the rooms and took positions with the pillars of Verandah and started indiscriminate firing. Abdul Rashid appellant, present in the court and Zaheer Abbas, P.O. Had .12 bore Guns and they made fires on ASP Suleman Ayaz Khan, whereas the remaining accused persons made firing on the other members of the Police party. The shots made by Abdul Rashid appellant and Zaheer Abbas hit ASP Suleman Ayaz Khan, who fell on the ground. Abdul Rashid appellant was making another fire but the cartridge stuck up in the Gun. In the meanwhile the Police party came and apprehended the appellant, Shakeel Abbas and Asad, whereas the remaining accused persons fled away from the left side of the house. He attended Suleman Ayaz, ASP, who was injured seriously. Suleman Ayaz was immediately sent to Civil Hospital under the escort of Abrar Sarwar, S.I. With injury statement (Exh.PP). .12 bore Gun P.18 was recovered from Abdul Rashid appellant along with cartridge P.19 and the same were taken into possession through memo of recovery (Exh.PBB) attested by the witnesses. He converted the same into parcels and sealed the same. He has also proved the recovery of Kalashnikov and Pistol .30 bore allegedly recovered from the other accused persons since acquitted. Five empties of .12 bore P.22/1-5, 12 empties of .30 bore Pistol P.23/1-12 and 10 empties of Kalashnikov P.24/1-10 were recovered from the place of occurrence and secured through memo of recovery (Exh.PEE). 35 pellets were recovered from the ground near two walls, which were secured through memo of recovery (Exh.PFF) and sealed into parcel. He also proved the memo of recovery regarding securing of blood-stained earth from the place of occurrence (Exh.PGG) and site plan without scale (Exh.PHH). He interrogated the appellant and others arrested in Chakri Police Post.' He handed over them to Abrar Sarwar, S.I. And parcels to Moharrer Malkhana.
He got prepared the site plan with scale (Exh.PB) and added that the notes in red ink on the same are in his hand. Abrar Sarwar, S.I. (P. W.12) has stated almost similar facts. He has proved the application for postmortem (Exh.PQ), recovery memo (Exh.PAA) regarding securing of last worn clothes of the deceased. Nazir Ahmad, S.I. (P.W.14) also supported the prosecution version and corroborated the statements of P.Ws.12 and 13. He has proved the memo of recovery (Exh.PBB) regarding securing of .12 bore Gun P.1 and empty P.2 respectively. It is stated that the I.O. Converted the same into sealed parcels. He also proved the recovery memo (Exh.PCC) regarding securing of Pistol .30 bore from Asad Abbas, recovery memo (Exh.PDD) regarding securing of Kalashnikov from Shakeel Ahmad, memo of recovery (Exh.PEE) regarding securing of the empties, memo of recovery (Exh.PFF) regarding securing of bullet led and 47 + 36 pellets, memo of recovery (Exh.PGG) regarding securing of the blood-stained earth. He stated that lie also joined the identification parade of Babar, Qasir and Yasir since acquitted.
7. Muhammad Altaf, S.I. (P.W.1) proved formal F.I.R. (Exh.PA/1) recorded on the basis of the complaint (Exh.PA). Khuram Shahzad (P.W.3) stated that he prepared the site plans (Exh.PB and Exh.PB/1).
Muhammad Arshad, S. I. (P.W.7) identified the dead body of the deceased at the time of postmortem examination. The remaining witnesses are formal. The prosecution has also produced the report of Chemical Examiner (Exh.PJJ), report of Serologist (Exh.PKK) and reports of FSL (Exh.PLL, Exh.PMM and Exh.PNN).
8. Abdul Rashid appellant in his statement under section 342, Cr.P.C. Contended that the house, where occurrence took place did not belong to Zaheer Abbas and denied the prosecution version regarding the occurrence. He also denied the recoveries of the weapon of offence and empties and contended that the same were fabricated. It was contended that .12 bore Gun P.18 is his licensed Gun, which was taken by the Police from his house along with other papers including identity cards of the members of the family. He contended that at the time of occurrence, he was sleeping in his house along with other members of the family. Somebody jumped in the house by scaling over the boundary wall because the main gate of the house was locked from inside. It was dark all around. Apprehending commission of dacoity and danger to their lives, some inmate of the house fired a single shot with .12 bore Gun and the intruder fell on the ground, who expired then and there. The other person present outside the boundary wall ran away. After sufficient long time many Policemen arrived at the spot. They opened the gate and then it transpired that the intruder, who was in civil dress was an ASP and the remaining story has been fabricated and concocted.
Later on he learnt that his son Zaheer Abbas was taken from his house at Rawalpindi and was killed. There was no motive for him to kill the deceased, who had not obtained any warrant although all the Magistrates reside close to the Police Station Saddar Berooni and no lady Police was also taken although the Women Police Station was adjacent to the said Police Station. He further stated that he is an old and sick person. A pace maker is fixed in his chest and he is under constant care of AFIC, Rawalpindi. He, however, opted neither to produce the defence evidence nor to appear as witness under section 340(2), Cr.P.C. But contended that he is innocent.
9. We have heard the arguments advanced by Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the appellant and Rana Kashif Saleem Arfaa, taw Officer for the State and have perused the record with their able assistance.
10. Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the appellant has contended that the deceased ASP in the civil dress without obtaining the search warrant made trespass in the courtyard of the house, where he was hit by single shot made by one of the villagers, who had gathered there; that some of the inmates of the house exercised the right of self-defence, which is not an offence in view of the provisions of section 96, P.P.C.; that the prosecution version stands belied by the fact that no other Police official was injured and had they been present at the spot, they could have not remained safe as allegedly heavy firing was made; that the witnesses are interested persons as their colleague had died, due to his own acts and omissions and as such they cannot be safely relied upon especially when they have made dishonest improvements; that there was no motive on the part of the appellant to cause Qatl-e-amd of the deceased that discrepant evidence has been relied upon by the learned trial court and as such gross miscarriage of justice has taken place; that the evidence of P.W.14 was recorded in absence of the appellant's counsel and as such the same cannot be used against him; that the appellant, who is about 70 years old had right of privacy of the home and protection of the same under the Constitution and as such he is not responsible for the demise of Suleman Ayaz Khan, ASP, who made trespass during night in the house by scaling over the wall and that without framing charge under section 302, P.P.C., the appellant could have not been convicted under section 7(a) of the A.T.A., 1997 and as such the conviction and sentence both are not sustainable. It is also urged that the evidence of the same witnesses was not believed against five accused persons since acquitted so the appellant could have also not been convicted and sentenced on basis of the same. In support of the contentions raised, reliance is placed on Akhtar All and others v. State (PLJ 2008 SC 269), Farman Ali and 3 others v. The State (PLD 1980 SC 201), Faryal and another v. The State (1978 PCr.LJ 380), Muhammad Sharif v. The State (1985 SCM R 1684), Shamir alias Shamla v. The State (PLD 1958 SC 242) and Muhammad Hussain and 3 others v. State (1999 M LD 798).
11. Controverting these arguments, Rana Kashif Saleem Arfaa, learned Law Officer for the State has contended that the appellant was apprehended at the spot along with the weapon of offence with stuck up cartridge in it; that the time, date and place of occurrence are admitted; that the appellant in his statement under section 342, Cr.P.C. Has categorically stated that some inmate of the house made the fire and he was the person, who had done so according to the P.Ws., whose statements are fully corroborated by the recovery and arrest of the accused at the spot; that the P.Ws. Had no grouse or anmosity with the appellant and there was no reason for them to depose falsely against him and that if the murder is caused during an act of terrorism-then the offender can be convicted and sentenced under section 7(a) of the Anti-Terrorism Act, 1997 so the framing of the charge under section 302, P.P.C. Was not required in view of the above mentioned provisions of the special law.
12. The prosecution case mainly hinges upon the evidence of Abrar Sarwar, S.I. (P.W.12), Rana Shahid Pervez, DSP (P.W.13) and Nazir Ahmad S.I. (P.W.14) as according to them, they were members of the raiding party and had encircled the house under the directions of Suleman Ayaz Khan, ASP, who knocked the door and asked the inmates ad Zaheer Abbas to come out as the arrest of the latter was to be made and on this, the appellant armed with .12 bore Gun along with other accomplices took positions behind the pillars and opened firing.. Allegedly the firing made by the appellant and Zaheer Abbas landed on the chest of the deceased, who was seriously injured and was removed to the hospital but he succumbed to the injuries. They all are unanimous and have corroborated each other's statements regarding departure from the Police Station for arrest of Zaheer Abbas son of the appellant, joining of the deceased, encircling the house, knocking of the door by the deceased, asking the inmates to come out, opening of the firing by the appellant and others, sustaining of the injuries by the deceased and his subsequent death. It is matter of fact that they had no previous animosity or enmity with the appellant. They all have also corroborated each other's statement that the appellant was apprehended at the spot while holding the .12 bore Gun, which had one stuck up cartridge. Learned counsel for the appellant has contended that these P.Ws. Cannot be safely relied upon as they have made material contradictions so their presence at the place of occurrence becomes highly doubtful. He has pointed out that P.W.12 and P.W.14 had stated that the Police employees also made firing but P.W.13 stated that they did not. In fact P.W.13 had stated that he and the ASP had not asked the Police employees to make firing. This does not mean that they did not make firing. Even otherwise it is stated that the making of firing was mentioned in the daily diary. The omission to mention the deposit of empties in the Roznamcha may be an irregularity but does not affect the veracity of these witnesses. The minor differences in the statements may be result of passage of time and the same cannot be deemed to be dishonest improvements. It was stated by him that the documents were recovered from the Suzuki Alto Car No,318/RL and it was not mentioned that it was ALTO VXR but this is insignificant. No doubt the details regarding chasing of the accused person of case F.I.R. No,37 of 2006 were not also given but these facts were not required to be embodied in the P.I.R. And the relevant fact regarding the recovery of documents on the basis of which the Police arrived at the conclusion that Zaheer Abbas was involved in the kidnapping is set forth. The site plan (Exh.PB) shows that the boundary walls of the house had marks as pellets landed on inner side and were collected from there. According to the complainant, he was present at Point No,2 so making of fires in that direction shows that the inmates of the house were aware of the presence of the witnesses and for this reason made firs towards them. This proves the presence of the complainant and other P.Ws.
All of them have narrated the events in natural and straightforward manner except for minor differences, which are result of the passage of time, there is no material contradiction or discrepancy in their statements. Their confidence-inspiring and trustworthy evidence has proved that the appellant made fires with .12 bore Gun, which landed on the chest of the deceased and was apprehended at the spot along with the Gun, which also contained a stuck up cartridge. It is true that five co-accused persons, who faced the trial along with the appellant were acquitted by the trial court but none of them was armed with Gun .12 bore and three of them were not arrested at the spot. It is the basic principle of administration of justice in criminal cases that the conviction should be recorded and sentenced awarded to the accused against whom the case is proved beyond reasonable doubt. Sifting of grain from chaff is one of the duties of the Court while- deciding such cases. The evidence available on record proves the guilt of the appellant but was not sufficient to convict the co-accused persons since acquitted. The case-law cited at the bar by the learned counsel for the appellant and reported as 2008 SCM R 6, PLD 1980 SC 201 and 1978 PCr.LJ 380 (Karachi) is not applicable on the facts of the present case.
13. The main contention of the appellant is that the deceased made a trespass by night in the house by scaling over the wall and on hue and cry of the inmates, the villagers arrived there and fire made by one of them or some inmate of the house caused his Qatl-e-amd. It is urged that the appellant had right of privacy of his house and its protection and as such the demise of the deceased does not amount to murder and no offence has been committed in these circumstances in view of the provisions of section 96, P.P.C. And that the learned trial Court had miserably failed to appreciate this important aspect of the matter. In support of the contention raised, reliance is placed on 1985 SCM R 1684, PLD 1958 SC 242 and 1999 M LD 798. All the witnesses, whose evidence inspire confidence as observed above have stated that the deceased knocked the door and was fired at and he sustained the injuries. Point No,1 shown in site plan (Exh.PB) is outside the boundary wall of the house. No doubt Point No,3 is in the courtyard and is at a distance of 6 feet from Point No,1 but after sustaining of the injuries the deceased, who was a young man of 30 years must have moved from the place of sustaining the injuries and fallen at Point No,3. By no stretch of imagination, it can be held in these circumstances that trespass was committed. The contention that the door was locked as the same could have not left open during the night is also without force as in our villages people usually do not close the outer gate and bolt and lock the doors of the main premises of the house. It is proved by the P.Ws. That he shouted and asked Zaheer Abbas and others to come out so there was no reason to open the firing on him. In these circumstances, if someone from the Law Enforcing Ageipy asked the person required in any case to come out of the house then the right of self-defence is not accrued to the inmates and they- can't cause Qatl-e- amd of such person. Neither the right of privacy or protection of the same was infringed nor was the right of self-defence available in these circumstances. The case law cited at the bar by the learned counsel for the appellant is not applicable on the facts of the present case. The other contention that on hue and cry of the inmates of the house some villagers gathered and the fire was made by one of them or any inmate of the house, also does not appeal the rational mind because the fires of .12 bore Gun were made from inside, which not, only hit the deceased but also landed on the inner side of the boundary wall at Points Nos.9 and 10. This rules out the firing from outside. Only appellant was armed with .12 bore Gun out of three persons arrested at the spot. The P Ws. Have categorically stated that he was making fires with the same Gun. It is, therefore, established through trustworthy evidence that the appellant caused Qatl-e-amd of Suleman Ayaz Khan, ASP when he was performing his official duties in order to arrest the person involved in an offence punishable under section 365-A, P.P.C. As defined in section 6(2)(n) of the A.T.A., 1997, this was an act of terrorism and in view of the fact that Qatl-e-amd was committed during the occurrence, the offence was punishable under section 7(a) of the Anti-Terrorism Act, 1997. The charge was rightly framed under the said provision of the Act ibid, which is a special law and on bringing home of the charge by the prosecution, he was rightly convicted and sentenced. No separate charge under section 302, P.P.C. Was required to be framed in view of exhaustive provisions of the special law. The impugned judgment does not suffer from any infirmity on this account as contended by the learned counsel for the appellant. The contention that the search warrant was not obtained and the deceased ASP was in civil dress so he himself contributed towards the unfortunate episode is also without force as it is established on record that no search was conducted and the deceased only asked the inmates to come out of the house. He joined the raiding party when it was proceeding to the house Of the appellant and was accompanied by the other Police officials, who were in uniform. He could have not been done to death merely because he was not in uniform. It is true that on 20-3-2007 when examination-in-chief of Nazir Ahmad, S.I.
(P.W.14) was recorded, Sardar Muhammad Ishaq Khan, Advocate, learned counsel for the appellant was not present rather Mian Shujjah-ud-Din, Advocate, had appeared vice him but no objection was raised at that time or at the time of cross-examination of the witness by the learned counsel for the appellant. The appellant, therefore, had legal assistance of an Advocate at the time of examination-in-chief of R.W.14, who was cross-examined at length by his learned counsel. Learned counsel for the appellant is one of the senior most and leading lawyers of the country and renders valuable assistance from the trial Courts to the apex Court. Due to his engagements at different levels, it appears that he was represented by another Advocate at the time of examination-in- chief and then he himself cross- examined the witness at length. In these circumstances, no prejudice is caused to the accused/ appellant. The contention that the appellant is 70 years and a heart patient so could have not committed the offence is also without force because triggering of the Gun does not require much force. This contention is not substantiated by any tangible proof and even otherwise does not constitute a valid mitigating ground.
14. For the reasons supra, the appeal lacks merits and the same is hereby dismissed. Consequently the death sentence awarded to the appellant is confirmed and CSR No,05/ RWP of 2008 is answered in the affirmative.