' MAZHAR IQBAL SIDHU, J.--- Abdus Sattar and Kafayat Ullah Khan appellants in two different appeals, as mentioned above, have impugned the punishing judgment of learned Special Judge, Anti-Terrorism Court, Sargodha dated 17-9-2010 whereby they along with their co-accused Sher Khan and Muhammad Aslam Khan (since been acquitted) were tried in a case registered vide F.I.R.
No,273 dated 3-6-2009 registered under sections 302/324/353/186/34, P.P.C. Read with an offence section 7 of the Anti-Terrorism Act, 1997 at Police Station, City Mianwali and punished as follows:-- Under section 302(b) read with section 34, P.P.C.Sentence of death each as Ta'zir for committing Qatl-e-Amd of Muhammad Ramzan, Inspector and to pay compensation to the tune of Rs.2,00,000 each to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months each.
Under section 324 read with section 34 of P.P.C.Rigorous imprisonment for ten years each for attempting Qatl-e-Amd of Hameedullah, HC, Aftab Iqbal, C # 1481 and Khurram Aziz, C # 304 and to pay fine to the tune of Rs.50,000 each and in default whereof to further undergo simple imprisonment for six months each.
Under section 353/34 of the P.P.C.Rigorous imprisonment for two years each and to pay fine to the tune of Rs.50,000 each and in default whereof to further undergo simple imprisonment for three months each.
Under section 7 (a) of the Anti-Terrorism Act, 1997Sentence of death each and to pay fine to the tune of Rs.2,00,000 each and in default whereof to further undergo simple imprisonment for six read with section 34 of the P.P.C.months each.
Under section 21(L) of the Anti-Terrorism Act, 1997 read with section 34 of the P,P.C.Rigorous imprisonment for five years each and to pay fine to the tune of Rs.20,000 each and in default whereof to further undergo simple imprisonment for three months each. ' whereas capital sentence reference has been sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentence or otherwise of the appellants/ death convicts. All the matters are being disposed of through instant single judgment.
2. Complainant Khurram Aziz, 304-C (P.W.2) got recorded his statement/ complaint Exh-PE at 1-30 p.m. On 3-6-2009 at Civil Hospital, Mianwali on the basis of which formal F.I.R. Exh-PE/1 was chalked out.
3. Facts in brief disclosed by complainant Khurram Aziz, 304-C (P.W.2) in complaint Exh-PE are that he was driver of official vehicle No, MIB-3818. On 2-6-2009 at 7-00 p.m., he alon gwith Hameedullah HC-27, Aftab 1481-C armed with rifles SMG and Muhammad Ramzan, Inspector (deceased), Police Station, Sadar, Mianwali was returning after patrolling in the area of Police Station, Saddar, Mianwali. When they reached Gulberg, Chowk, Mianwali, they saw with the help of street-lights that a motorcycle without registration number emerged which was being driven by Abdul Sattar (appellant) armed with Kalashnikov whereas Kafayatullah (appellant) armed with rifle .222 bore was sitting behind him. Muhammad Ramzan, Inspector signaled the appellants to stop but they did not comply with. Thenceforth Muhammad Ramzan, Inspector along with aforementioned police posse chased them and made them to halt at Watta Khel Chowk at about 12:15 midnight. The appellants who were previously known to P.Ws., Khurram Aziz, Hameedullah and Aftab Iqbal alighted from the motorcycle. Muhammad Ramzan, Inspector asked them to show the licenses of the weapons to which they replied that as who was he to ask for the license and Kafayatullah appellant fired through his .222 bore rifle which hit Muhammad Ramzan, Inspector on his right and left thighs whereas Abdul Sattar appellant made fire shot with his Kalashnikov, which landed on the chest of Muhammad Ramzan, Inspector who fell on the ground. The police officials present there also fired on the appellants after taking position but the appellants took flight towards city on the said motorcycles. The complainant and P.Ws. Escorted Muhammad Ramzan to Civil Hospital, Mianwali who succumbed to the injuries there. Afterwards Muhammad Iqbal 125-C claimed to have witnessed the occurrence and stated that Muhammad Aslam and Sher Khan (acquitted co- accused) were also present at the place of occurrence while armed with pistols and they extended threats at the place of occurrence that he who interfered would be killed. Saeed Muhammad and Muhammad Khan also got recorded their statements under section 161, Cr.P.C. Wherein the appellants were implicated by way of evidence of extra-judicial confession.
4. The investigation in this case was conducted by Saifullah, S.I., who appeared as P.W.21. He deposed that during the night between 2/3-6-2009 at about midnight on receipt of wireless message from control on behalf of Khurram Aziz, complainant/ driver Constable No, 304, he proceeded to DHQ, Hospital Mianwali and on reaching there, he recorded statement Exh-PE of Khurram Aziz complainant, read it out to him who signed the same in token of its correctness, sent the same along with his endorsement to Police Station, City Mianwali from the Hospital through Muhammad Ashraf Constable No, 611, on the basis of which case was registered at police station by A.S.-I. Muhammad Ramzan, took up the investigation of this case, prepared injury statement Exh-PC, inquest report Exh-PD in respect of dead body of Muhammad Ramzan, Inspector deceased, which was lying in the said hospital, handed over the dead body to Muhammad Aslam Constable No, 79 for postmortem examination, proceeded to the place of occurrence i,e, Watta Khel Chowk, inspected the place of occurrence on the pointing out of Khuram Aziz, complainant and P.Ws. And prepared rough site plan Exh-PZ, inspected the spot in the presence of Abdul Ghaffar, A.S.-I. And Lateefullah, Constable No, 614, collected blood imbrued earth from the place where Inspector Muhammad Rmazan was injured, made it into a sealed parcel through memo Ehx-PJ, collected nine crime empties of .222 bore (P-12/1-9) from the place of firing and made the same into separate sealed parcel through memo Exh-PK, collected five crime empties (P-13/1-5) from the place of firing, made the same into separate sealed parcel through recovery memo Exh- PL, also collected six crime empties of Kalashnikov from the place where from Hameedullah and Aftab Iqbal P.Ws. Have allegedly made firing and made them into separate sealed parcel through memo Exh-PM attested by the P.Ws., on the same day Muhammad Aslam 79-C produced before him last worn clothes and other articles of uniform of Muhammad Ramzan, Inspector/deceased, Shirt P-6, Trouser P-7, Banyan P-8 all blood imbrued, Waste Belt P-9, Cap P-10, pairs of chappal P- 11/12 and a sealed phial sent by the Medical Officer, took all these articles into possession through memo Exh-PI attested by the P.Ws., also recorded the statements of P.Ws. i,e, Hameedulalh HC, Aftab Iqbal constable, Mohammad Aslam Constable, Abdul Ghaffar, A.S.-I. And Lateefullah Constable under section 161 Cr.P.C, Muhammad Ashraf constable brought to him formal F.I.R. After registration of the case, searched for the accused but could not find them. He accompanied Sher Muhammad constable photographer to the place of occurrence on 4-6-2009 where he took photographs, Muhammad Shafique Draftsman inspected the place of occurrence on 4-6-2009 and took rough notes. On 5-6-2009 Sher Muhammad Constable Photographer produced before him photographs (P-1/1-7), took the same into possession through memo Exh-PG attested by the P.Ws., recorded their statements, Muhammad Shafique Photographer produced before him scaled site plan Exh-PF and Exh-PF/1, recorded the statement of Sher Rasool, MHC and Hameddullah, Constable No, 114 on 9-6-2009 regarding the custody and dispatch of parcels of blood imbrued earth. Submitted application Exh-PAA to the court for obtaining warrants of arrest against Abdul Sattar and Kafayatullah accused from the court on 18-6-2009 and entrusted the same to Zafarullah, A.S.-I. For execution. Proclamations were issued from the court on his application Exh-PBB and the same were also marked to Zafarullah, A.S.-I. For execution, recorded the statement of Zafarullah, A.S.-I. Regarding the warrants and proclamation on 26-6-2009 and recorded the statements of P.Ws.
' On 4-9-2009 Muhammad Iqbal Constable No, 125 appeared before him and he recorded his statement under section 161, Cr.P.C. As an eye-witness in which he nominated Sher Khan and Muhammad Aslam accused. On 6-9-2009 Mahmood Khan and Saee Muhammad P.Ws. Appeared before him and he recorded their statements under section 161, Cr.P.C. He obtained warrants of arrest against Muhammad Aslam and Sher Khan accused from the court of learned Illaqa Magistrate, Mianwali on 7-9-2009. On the same day, he arrested Muhammad Aslam accused in this case, obtained physical remand of Muhammad Aslam accused. On 18-9-2009 Muhammad Aslam accused while in police custody led to the recovery of motorcycle YAMAHA 6697-MIA without any documents from his house in village Shahbazkhel, secured the motorcycle through memo Exh- PR in the presence of Hafeezullah Constable No, 1153 and Muhammad Ashraf Constable No, 611, who attested the memo, prepared rough site plan Exh-PR/1 of the place of said recovery, recorded the statements of the P.Ws. Regarding the said recovery, Muhammad Aslam accused while in police custody on his disclosure and pointing out, on 20-9-2009 got recovered .30-bore pistol (P-22) along with four bullets (P-23/1-4) from his house at Shahbazkhel through recovery memo Exh-PS attested by the P.Ws., made the pistol into a sealed parcel and recorded the statements of the said witnesses, prepared site plan of the place of recovery Exh-PS/1. On 26-9-2009 he submitted application Exh-PCC for the arrest of Sher Khan accused and accordingly warrants were issued against him which he marked to A.S.-I. Zafarullah for execution, recoded the statements of Sultan Khan, ASI/ Moharrar and Rehmatullah constable regarding parcel of pistol recovered from Muhammad Aslam accused, recorded the statement of A.S.-I., Zafarullah on 20-10-2009.
' He arrested Kafayatullah appellant in this case on 22-10-2009 and at the time of his arrest an amount of Rs,835 and Photostat copy of his ID Card were recovered from him on his personal search, obtained his physical remand and interrogated him. On 29-10-2009 Kafayatullah appellant led to the recovery of .222-rifle (P-15), ten bullets (P-16/1-10) and license for the said rifle (P-17) from his residence in Shahbazkhel, made the rifle into a sealed parcel and took the same into possession along with bullets and license through memo Exh-PN attested by the P.Ws., recorded their statements, prepared rough site plan Exh-PN/1 of the place of said recovery. He arrested Abdul Sattar appellant in this case on 11-11-2009 and obtained his physical remand. At the time of arrest, he took into possession Motorcycle 8485-MID (P-24) along with its Registration Book (P- 24/1-1), Rs,780, photocopy of ID card on his personal search, secured these articles through recovery memo Exh-PO attested by P.Ws. On 22-11-2009 Abdul Sattar appellant on his disclosure and pointing out got recovered Kalashnikov (P-18) along with 20-bullets (P-19/1-20) from his house through recovery memo Exh-PP attested by the P.Ws., recorded their statements, recorded the statement of Zahid Iqbal, A.S.-I./Moharrar and Muhammad Aslam constable regarding the parcels.
He arrested. Sher Khan accused on 19-1-2010 and obtained his physical remand. On 24-1-2010 Sher Khan accused while in his custody on his disclosure and pointing out got recovered .30-bore pistol (P-20) along with five bullets (P-21/1-5) from his house, secured these articles through memo ExhPQ and made the same into separate parcel, the said memo was attested by the P.Ws. After completion of investigation, he got the accused challaned through the SHO.
5. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellants to which they pleaded nonculpabilis and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case. The prosecution produced 21 prosecution witnesses.
6. Learned PP renounced P.Ws. Namely Aftab Iqbal, C-1481, Lateefulalh, C-614, Hafizullah, C-1153, Muhammad Ayyaz, C-858, Muhammad Khan, Ameer Ahmad Khan, A.S.-I., Muhammad Yaqoob, A.S.-I., Mushtaq Ahmad, A.S.-I., Amanullah Joya, S.I. As being de-trop and by tendering in evidence the report of Chemical Examiner Exh-PD, report of Serologist Exh-PEE and reports of Forensic Science Laboratory three in number Exh-PFF/103 PP closed the prosecution evidence.
7. The medical evidence was adduced through the statement of Dr. Muhammad Rafique, SMO (P.W.1) who on 3-6-2009 at 12:30 midnight medically examined Muhammad Ramzan, who was in an injured condition having been brought by the police. Patient was received in emergency, semiconscious, disoriented BP was not recordable and pulse was very feeble. Patient looked pale and was in police uniform. Blood imbrued clothes were present on the patient and observed infra:- INJURIES ' A firearm wound of entryl/2 x 1/2 cm on the lateral aspect of middle one third of left thigh.
(1) A firearm wound of exit 1 x 1 cm on the medial aspect of left thigh middle and third.
(2) A firearm wound of re-entry 2 x 2 cm on the medial aspect of middle one third of right thigh.
(3) A firearm wound of entry 1/2 x 1/2 cm in front of left chest, 8cm from left nipple.
(4) A firearm wound lx1 cm in front of abdomen, 5cm from the umbilicus and 8'0 clock position.
' Duration of injuries was within ten minutes. All the injuries were caused by firearm. Exh-PQ was the correct carbon copy of MLR prepared and signed by him. The injured died of the injuries in the hospital and thereafter he conducted postmortem examination on the dead body on receipt of injury statement and inquest report.
' The particulars of the dead body were the same as recorded by him in the MLR. The dead body was identified by Aftab Iqbal, FC-1481 and Hameedullah, HC-27 and had been brought by Muhammad Aslam, FC-79. Symptoms for the death of injured were severely bleeding, irritable and blood was given to the injured and was shifted to operation theatre but he expired before surgery.
' The dead body was clad in police uniform. It was a middle aged man, eyes and mouth were closed. Postmortem staining was present while rigor mortis had not yet set in. All the clothes were blood imbrued, having corresponding holes on the clothes. He found the injuries on the dead body which were the same as described him above in the MLR.
OPINION ' In his opinion, death in this case had been caused by haemorrhage and shock due to injuries to femoral vessels of left thigh as a result of injury No,1 which. Had damaged muscles of both thighs and femoral vessels of left thigh. Injury No, 2 was exit wound while injury No, 3 was wound of re- entry of injury No, 1, which added the severity. This injury was dangerous and grievous in nature and it was sufficient to cause death in ordinary course of nature. Injury No, 4 did not perorate the chest and abdomen but passed below the skin and made its exit as injury No,5. All the injuries were ante- mortem and had been caused by firearm.
' Probable times that elapsed between injuries and death was within one hour and that between death and postmortem examination was within two hours. He had conducted the postmortem examination at 02:45 am.
' After the postmortem examination, he handed over the stitched dead body along with its clothes, postmortem report, police papers a sealed phial to Muhammad Aslam Constable No,
79. The said sealed phial contained foreign body. Exh-PB was the correct carbon copy of postmortem report prepared and signed by him. ExhPB/1 was correct diagram prepared and signed by him".
8. Afterwards the statements of the appellants under sections 342, Cr.P.C. Were recorded, in which they denied and controverted all the allegations levelled against them by the prosecution and professed their innocence. However, they opted to adduce evidence in their defence but not to appear as their own witness under section 340(2), Cr.P.C.
9. Appellant Kafayatullah Khan in reply to the question why this case against you and why the P.Ws.
Have deposed against you answered as follows:-- "My enemies have involved me and my brother Muhammad Aslam in this case falsely. All the P.Ws.
Are inimical towards us on the asking of our opponents so they have deposed against us falsely.
We are innocent".
10. Appellant Abdul Sattar in reply to the question "why this case against you and why the P.Ws.
Have deposed against you" answered as follows:-- "In fact deceased was killed by unknown persons in the darkness of night and nobody was there to witness the occurrence. I have been falsely enroped in this case on the asking of my enemies. All the P.Ws. Are police officials and they are interested in my conviction, therefore, they have deposed against me falsely".
11. Kafayatullah appellant tendered in defence copies of application submitted before learned Sessions Judge Mianwali Exh-DD along with order Exh-DD/1, application filed before learned Illaqa Magistrate Mianwali Exh-DE along with orders Exh-DE/1, application submitted before learned Illaqa Magistrate Mianwali Exh-DG along with orders Exh-DF/1, application submitted before learned Sessions Judge, Mianwali Exh-DG along with order Exh-DG/1, applications submitted before Additional Commissioner Consolidation Exh-DH, Exh-DI respectively and F.I.R. No,35 dated 4-2-2004 Police Station City Mianwali as Exh-DJ. He also produced in his defence copy of order of learned trial Court Mark-A and copy of application submitted before learned Additional Commissioner consolidation Mark-B.
12. Appellant Abdul Sattar produced in his defence attested copy of application submitted by Hakim Khan father of Abdul Sattar accused before learned Sessions Judge, Mianwali Exh-DK along with orders Exh-DK/1 attested copy of application submitted before the learned trial court along with orders dated 1-3-2010 as Exh-DL, Exh-DL/1 and photocopy of Registration Book of Motorcycle No,MID-5485 issued by Motor Registration Authority, Mianwali as Mark-C and closed his defence evidence.
13. Upon conclusion of the trial, the appellants were convicted and sentenced as mentioned op-cit by the learned trial Court whereas their co--accused Sher Khan and Muhammad Aslam Khan were acquitted of the charges imputed against them. Hence, the appeal as well as murder reference.
14. To seek acquittal, learned counsel for the appellants has argued that the occurrence took place on 3-6-2009 at 12-15 midnight and the matter was reported on the same night at 1-45 a.m. Visibly in some haste but it being a night occurrence, the prosecution has not established the source of illumination at the place of occurrence in order to recognize the culprits and normally the night is selected by the culprits to hide their identity; obviously the appellants were nominated in the F.I.R.
With specific roles but nevertheless duty remains on the prosecution to prove the source of light at the time of occurrence Which has not been fulfilled, as according to the prosecution's case, at the time of occurrence street-lights were omitting lights at the time of occurrence but according to the learned counsel for the appellants up to 12-00 midnight as per schedule there was outage of electricity and the time of, occurrence has been stretched by the prosecution after 12-00 midnight in order to prove that electricity light was sufficiently available there but at the same time, the incident had commenced at 11-45 p.m., the same allegedly culminated at 12-15. a.m., even in this situation, the backdrop remains in the prosecution's case that neither any electric bulb was taken into possession during the investigation nor any person of the electric department was examined as witness to establish that at the time of occurrence at the place of occurrence, the street-lights were accurately working and if the factum of light does not seem to have been proved, then the identity of the culprits at the time of occurrence remains doubtful especially when the prosecution added more to the F.I.R. By involving subsequently two more accused persons namely Sher Khan and Muhammad Akram who have been acquitted by the learned trial Court by the same judgment and against the said acquittal, no appeal has been preferred either by the State or by the legal heirs of the deceased. Learned counsel adds that when the prosecution remains in a dubious position that the incident has committed by two persons or four persons, then obviously acquittal of two accused persons involved latter to the registration of the case would definitely cause serious defect in the veracity of the prosecution case which led the court to draw a conclusion that either the appellants did not participate in the occurrence or the P.Ws. Were not present at the place of occurrence, it remains paramount upon the prosecution to prove the identity of the culprits during an incident in order to establish its case but in the instant case the prosecution has miserably failed to do so.
' It has been argued that the motive mentioned in the F.I.R. Seemingly is irrational and the prosecution has not been able to prove for the reasons that when both the appellants were being intercepted when they were riding on a motorcycle, being driven by Abdus Sattar, appellant whereas Kafayatullah, appellant was there as a pillion having a firearm weapon, which subsequently was found to be licensed one, when were asked to explain about it by complainant Khurram Aziz (P.W.7) and others who were returning after having a santrigo along with Muhammad Ramzan, Inspector/S.H.O., Police Station, City, District Mianwali but the appellants did not obey the direction and then they were chased, thereafter the alleged occurrence took place. Learned counsel has submitted that apparently the motive set up in the F.I.R. Appears to be repellant to the senses and for this petty motive, it is not convincible to murder Muhammad Ramzan, Inspector.
' As to recoveries, learned counsel submits that the rifle .222 bore, which was subsequently recovered on the physical remand of Kafayatullah appellant on 29-10-2009 through memo Exh. PN, the same was the licensed one as the copy of the license was also taken into possession; vividly there was no harm by the appellants to tell the complainant party that it was licensed one or even then it could have been shown for its inspection because no act or omission was being perpetrated by both of them making them punishable under the law for the time being enforced whereas the false recovery has been planted upon Abdus Sattar through memo Exh-PP to strengthen the prosecution case. Learned counsel has seriously questioned the presence _ of the eye-witnesses at the relevant time through a detailed arguments i,e, Khurram Aziz, Constable No, 304 (complainant) examined as P. W .2 , Hameedullah, HC No, 27 (P.W.3) that neither during the investigation nor before the learned trial Court any documentary evidence was produced to establish that the deceased along with company of the eyewitnesses was on 'santrigo on woeful night and on returning, the unfortunate incident took place; when Muhammad Ramzan deceased being an injured was brought to the hospital, examined by P.W.1, Dr. Muhammad Shafique by preparing a Medico-legal Report Exh-PA does not bear either the name of any accompanying person or signed by any of the eyewitnesses having received it and being the first document of the prosecution case obviously mark the presence of the eyewitnesses at the spot. Adding to the arguments, learned counsel has submitted that before registration of the case, two wireless messages were also imparted by a caller as proved through the statement of Saifulah, S.I. (P.W.21) but in the opening of his statement, he has categorically stated that on the receipt of a wireless message from the control on behalf of Khurram Aziz, the complainant/driver-Constable No,304 (P.W.2) arrived at hospital where Muhammad Ramzan, Inspector/deceased was present and in his cross-examination, he has admitted that wireless book log is maintained at Mianwali, according to first wireless message received at wireless station located in the Police Line, Mianwali was that S.H.O., Saddar Minawali had been fried at by one suspicious person and it was also correct that second message was conveyed that he had been fired upon by two unknown persons, who ran away towards Government High School, Mianwali and this fact in a suggestive form has also been put to P.W.2, Khurram Aziz.
' In this backdrop, learned counsel has further developed his arguments that had the P.Ws. Been present at the place of occurrence accompanying the deceased, such-like messages of wireless would not have been conveyed. The learned counsel has maintained that after registration of the case two more accused persons namely Sher Khan and Muhammad Aslam were involved in this case and in this respect Muhammad Iqbal, Constable No, 125-C has been examined as P.W.5 and he in his statement has not mentioned any source of light available at the time of occurrence but by involving accused Muhammad Aslam and Sher Khan has ascribed intimidation to both of them not to interfere and allegedly provided chance to their co-accused/ appellants to make their good escape from the place of occurrence; Khurram Aziz, P.W.2 and Hameedulalh, P.W.3, the eyewitnesses in their original stance about the occurrence involved the appellants only but none else even any unknown but subsequently both of them also involved Sher Khan and Muhammad Aslam that they were also present on another motorcycle behind the appellants; P._W.4 Saeed Muhammad who appeared as witness of the prosecution about the making of Ghair Adalti lqrar- e-Jurm- before him by the acquitted accused while admitting that deceased Muhammad Ramzan was his nephew, has testified that both of them admitted to have participated in the 'occurrence and they be got pardoned and after about three months of the registration of the case, the said accused persons were involved and it being not discernable as to why the prosecution version remained doldrums to ascertain the accused persons numerically involving in the case. Learned counsel has further added that for the first time on 4-9-2009, after about three months, the accused since been acquitted were involved. Learned counsel adds that as per the narrative of the F.I.R., the deceased and the P.Ws. Alighted of the vehicle then the deceased was fired at but during the court arguments, it has been explicitly that neither Khurram Aziz, eyewitness P.W.2 nor Hameedullah, eye-witness P.W.3 had mentioned this fact and P.W.5 not nominated eye- witness in the F.I.R. Has also not deposed that the deceased was out of vehicle when he was attacked, upon, in this way, learned counsel has raised arguments that when the deceased had allegedly received injuries while being present inside the vehicle why the blood was not taken from the vehicle which might had oozed out from the body keeping in view the locales of the injuries.
Learned counsel has concentrated another loophole of the prosecution case that neither in the F.I.R. Nor during the investigation and also not before the learned trial Court the prosecution has brought the number and make of the official vehicle being used by the deceased at the relevant time, therefore, suppressing of all such material circumstances and addition of two more persons in the incident necessarily giving rise a doubt in the prosecution case.
' As to the medical testimony, it has been argued that the same is not in sync with the ocular testimony for the simple unrebutted reason that 5th injury on the belly of the deceased was neither mentioned in the F.I.R. Nor in the statement of the P.Ws. Under section 161, Cr.P.C. Nor in the court statement of the P.Ws. And by whom it was caused that is not known whereas the doctor who performed the postmortem report on the dead body of the deceased has labelled injury No, 5 as exit of injury No, 4 but again it remains in gloom that how injury No, 4 could have made the same injury as exit because injury No, 5 seems reasonably 10"O Clock down by more simplifying that the same was from upwards to downwards but it is not the case of the prosecution.
' Learned counsel has argued that false recovery of Kalashnikov has been planted upon appellant, Abdus Sattar through memo Exh-PP along with twenty live bullets on 22-11-2009 whereas the alleged recovered rifle of Kafayatullah was licensed one as vivid through Exh-PN dated 29-10-2009; from the spot, nine spent crime empties of .222 bore rifle through Exh PK, six crime empties of Kalashnikov through Exh-PL and five empties of Kalashnikov through memo Exh-PM were taken into possession and made into sealed parcel, thereafter it was sent to the office of Forensic Science Agencies on 17-6-2009 by making a delay of fourteen days which remained unexplained whereas the alleged weapons were sent to the said office on 25-11-2009, both the articles were dispatched delayed, this alone fact is sufficient to make the veracity of positive report of the said agency doubtful, even otherwise this type of evidence is taken as a corroboratory and not the substantive.
Learned counsel at the last but not the least has also diverted the attention of the court towards the oppression of police caused to the family of the appellants and the co-accused having been acquitted by pointing out defence documents. Learned counsel has also placed reliance on Saindad and others v. State (1972 SCM R 74), Nawaz Ali and others v. The State (1981 SCM R 132), Tariq Pervaiz v. The State (1996 SCMR 1345), Sherral alias Sher Muhammad v. The State 1999 SCM R 697, Muhammad Aslam Khan v. The State (1999 SCM R 172), Ali Sher v. The State (2008 SCM R 707) and Talib Hussain v. The State (2009 SCM R 825).
15. Learned D.P.-G. Assisted by the learned counsel for the complainant has vehemently but in an exquisite way opposed the submissions by submitting that the complainant and other P.W.3 have no animus/wroth to falsely involve the appellants or to make false statements against them; the matter was reported to the police without any loss of time; Muhammad Ramzan deceased being an injured was taken to the hospital after being injured in a posthaste way where he was medically examined and on his death postmortem examination was also performed on his dead body; Medico-legal Report as well as the postmortem report has been proved through the statement of P.W.1, Dr. Muhammad Rafique: and the ocular account is in line with the medical evidence. It has further argued that it has been mentioned the F.I.R. That both the appellants were known to the complainant prior to the incident, street-lights were available at the place of occurrence and so far as the shutdown of electricity is concerned, it has been brought by the defence through cross- examination that after 12:00 midnight there was no outage of power and the incident took place at 12:15 a.m., obviously bulbs and rods of the tube-lights are not taken into possession as being public property and it is always presumed that during the night time those remained in litting position unless proved otherwise. Further submitted that on .a petty matter just on the asking by the deceased to stop motor bike in order to explain about the weapons being held by the appellants, he was assassinated in a ruthless manner, even otherwise the motive is not a sine qua non for the proof or disproof of the prosecution case; during the investigation both the appellants were found guilty; the weapons of offences were recovered from them; the report of the Forensic Science Laboratory as to the crime empties taken into possession from the spot as well as the weapons is positive as Exh-PFF/1-3; all the P.Ws. Are consistent inter se despite searching cross-examination, they remained un shattered and so far as the addition of two persons and their acquittal is concerned, the same does not mark the case of the prosecution qua the appellants because none of them, had caused any injury to the deceased whereas both the appellants have been attributed injuries on the body of the deceased. It has further submitted that the appellants cannot be extended the benefit of doubt on the cause of acquittal of the' co-accused because it is settled principle of law that the court has to separate the grain from the chaff and this maxim of law is fully applicable to the facts and circumstances of the case. It has further been added that otherwise the act of the appellants is relentless because a responsible police official has been gun downed by them and lastly it has been argued that so far as the messaging through wireless is insignificant because the caller was never traced and the record of the log book has not been brought on the record either by the prosecution or by the defence. By concluding it has been argued that the prosecution has ably proved its case against the appellants beyond shadow of reasonable doubts, therefore, instant appeal may be dismissed and the murder reference may be answered in the positive by upholding the impugned judgment.
16. Heard. Record perused.
17. The incident took place on 3-6-2009 at about 12:15 midnight and the matter was reported on the same night at about 1-30 a.m. Through Exh-PE at Civil Hospital, Mianwali, where the dead body of the deceased was lying. Saifullah, S.H.O. (P.W.21) after having got information through wireless arrived there and after formulating it through the statement of Khurram Aziz, 304-C (P.W.2) the same was sent to the police station through a constable for formal registration of the case and accordingly Exh-PE/1 was chalked out by Muhammad Raza, A.S.-I./Duty Officer (P.W . 17).
18. To prove the case against appellants, the prosecution evidence can be divided into following parts:-
(i) Wireless messages as to reporting incident.
(ii) Fact of light at the place of occurrence.
(iii) Evidence furnished by Khurram Aziz P.W.4.
(iv) Medical Evidence.
(v) Recoveries.
In a glance one may convince that the matter was reported to the police without any loss of time.
Prior to the registration of the case, two wireless messages were recorded in the instant case successively in the Police Lines, Mianwali, as evident through the statement of (P.W.21), Saifullah, SHO. First was that S.H.O., Police Station Saddar, Mianwali had been fired at by one suspicious person whereas the second message was that two unknown persons caused him injuries and ran away towards Government High School, Mianwali. In this respect the log book was also produced before the court during the trial but unfortunately the same was sent back unattended as the law required. This fact has also been put to P.W.2, Khurram Aziz in a suggestive form to which he has denied. When this fact has been found mentioned in the F.I.R. That both the appellants were previously known to the complainant, why such messages were delivered, It obviously means that either those messages were conveyed by some unknown persons and at least those were not conveyed by the persons present at the spot. It was, therefore, prime duty of the prosecution to clarify this ambiguity by bringing on record the relevant material in this regard. Of course the said messages were transmitted in the air but this fact causes doubt in the mind of a prudent person.
19. The occurrence is reported to be nocturnal (night time). Prime duty remains with the prosecution to establish the factum of light at the time of occurrence in order to establish the identity of the culprits. Undoubtedly it has been mentioned in the F.I.R. Tharat the place of occurrence, the street lights were on but at the same time it has been placed on the record through the statements of P.W.2 and P.W.3 that for the first time when the appellants were A intercepted by the police party, it was quarter to twelve and allegedly the incident continued up to 12:15 a.m. It has also been brought on the record by the defence that as per the schedule of the area, up to midnight there remained an outage of powers. This fact has, however, gone proved that load shedding was to be observed during the night time in the vicinity of incident. During the investigation, the 10 never took into possession any electric bulb or the tube which was allegedly omitting light at the time of occurrence under which the incident was seen. The prosecution has also not adduced any evidence through the employee of the WAPDA Department that all the bulbs/tube lights fitted on the electric poles around the place of occurrence were in order at the time of occurrence, therefore, the prosecution has not been found convincing to prove the source of illumination at the time of occurrence. Obviously it is an open and shut that the night is regarded dark one. No evidence has also been produced by the prosecution to establish the lunar date on the night of occurrence so that the appearance/ disappearance of the moon might be proved or its light and how much intensity was available at the time of occurrence on the night of occurrence.
' Now, we take up the evidence adduced through Khurram Aziz, C-304 (P.W.4) in Exh-PE against the appellants. After registration of the case on 4-9-2009 (P.W.5), Muhammad Iqbal, C-125 appeared before the I.O. For the first time and claimed to have seen the incident (not mentioned as an eye- witness in the F.I.R.) but involved two more persons namely Sher Khan and Muhammad Aslam and again P.W.4, Saeed Muhammad did not appear before the police stating that before him Mehmood Khan, P.W. (not produced), both the said accused persons made extrajudicial confession to have had participated in the occurrence. During the investigation they were found involved by the I.O.
Pistol was got recovered by Sher Khan on 21-4-2010 along with five live bullets through memo Exh- PQ. The motorcycle allegedly used by both of them in the commission of crime was also got recovered by Muhammad Aslam on 18-9-2009 through memo Exh-PR and on 20-9-2009 a pistol through memo Exh-PS was got recovered by him. On the conclusion of the trial, the prosecution version was not believed by the learned trial Court so far as these two persons were concerned and they were acquitted. Neither any aggrieved person nor the State has challenged it, in this way qua them the order of acquittal has achieved finality.
20. Now by making minus the version of wireless messages, two versions are still available on the file as to the incident. Both the eye-witnesses P.W.2 and P.W.3 also deposed against the acquitted accused persons in their statements before the court but their statements were not accepted by the learned trial Court qua them. Now the presence of the eye-witnesses namely Khurram Aziz and Hameedullah, P.W.2 and P.W.3 respectively are highly doubtful due to multiple reasons. Firstly the record does not prove that on the night of occurrence the deceased and the P.Ws. Were on santrigo in a vehicle whose number has been mentioned in the F.I.R. As 3818-MIB to be driven by Khurram Aziz through any documentary evidence or through the statement of any other person of the same police station. During the course of investigation, neither the vehicle was taken into possession nor it was produced before the learned trial Court. It is undiscerned that as to why this fact has been suppressed by the prosecution which could have been easily proved. Another aspect which goes to the roots of the prosecution case is that when injured Muhammad Ramzan was medically examine by Dr. Muhammad Rafique P. W.1 and his Medico-legal Report Exh-PA was prepared, the name of any of the P.Ws. Has not been found mentioned therein by the doctor, only the word "police" has been recorded in the relevant column. The Medico-legal Report of the deceased was received by one Muhammad Aslam constable, who is a witness in the case. Another important fact wreaks doubt as to presence of the eye-witnesses at the place of occurrence that both of them had improved upon their version set up originally in the case whereas their testimony has also been marred by the statement of P.W.5 Muhammad Iqbal Constable No, 125 who at a belated stage emerged as an eye-witness of the incident by involving two more accused persons since been acquitted as mentioned above. The testimony of P.W.4 Saeed Muhammad has also caused doubt 'in the prosecution version when he deposed before the court that the acquitted accused persons admitted their participation in the alleged occurrence through extra-judicial confession along with the appellants. Why the prosecution version goes dispirited and why a doubtful version can be accepted. Statement of P.W.5, Muhammad Iqbal 125-C --mentioned as an eye-witness had already been disbelieved by the learned trial Court.
21. Now, in this backdrop the evidence of P.W.2 and P.W.3 has also been discussed. According to their statements, the deceased received all fire shot injuries, when he was present inside the vehicle and to be more particularly in this context appellant Kafayatullah made a fire shot with his .222 bore rifle hitting on the right thigh of the deceased. According to postmortem report the same is injury No,1 and by making an exit Injury No,
2. Further are injuries in the left of the deceased. Qua him the medical evidence has not been found deferred with the ocular account but so far as the case of Abdus Sattar appellant is concerned, he allegedly made a fire shot with Kalashnikov hitting on the left side of the chest of the deceased. The same injury exists as injury No, 4 but injury No, 5 which is available near the umbilicus towards right side of the belly has not been explained by the P.Ws. How the deceased received this injury but the doctor examined as P.W.1 has explained it as exit of injury No,
4. Injury No, 4, has been found not caused any damage to internal of the body of the deceased but track upwards to downwards is not understandable nor it has been explained by the prosecution during the trial. According to postmortem report, injuries No, 4 & 5 have not been found grievous or mortal. The medical evidence through the data examined herein above has not been found in line with the ocular account in toto, therefore, this fact also causes doubt to the prosecution case.
' Apart from the above, the presence of the prosecution witnesses also causes doubt as to their conduct at the place of occurrence. Both were accompanying the deceased at the relevant time duly armed themselves with SMG rifles. They chased the assailants when they did not stop on the asking of the deceased. At that time, it is amazing that why they did not bring themselves into aiming position by threatening the culprits at the strength of their rifles. Further, when the deceased was being fired upon repeatedly, they did not do any act and remained there standing as silent spectators. They could have easily fired at the assailants if they had been there. Perhaps, that is why at a later stage, evidence of Khurram Aziz has been introduced that two other accused have been threatening them not to come near to them.
22. On the night of occurrence, the police had taken into possession crime empties of different calibers, nine spent crime empties of .222 bore rifle through Exh PK, six crime empties of Kalashnikov through Exh-PL and five empties of Kalashnikov through memo Exh-PM and after taking those into sealed parcel were sent to the office of Forensic Science Laboratory, Punjab, Lahore in a sealed parcel. Abdus Sattar appellant allegedly got recovered a Kalashnikov Exh-PP on 22-11-2009 along with bullets P-19/ 1-20 through memo Exh-PB whereas Kefayatullah appellant on 29-10-2009 got recovered rifle .222 bore P-15 along with ten live missiles P-16/1-10 along with copy of license P-16 which were taken into possession, rifle was also made into a sealed parcel then the weapons were sent to the office of Forensic Science Laboratory, Punjab, Lahore on 25-11-2009. It has been observed that the crime empties as well as the weapons were sent with some reasonable delay perhaps caused purposely by the prosecution whereas the parcel of blood-stained earth was sent to the office of Chemical Examiner, Lahore on 4-6-2009 as proved through the report of the Chemical Examiner Exh-PDD. When blood-stained earth was sent on the following day of the incident to the office of Chemical Examiner why the empties were not sent, this fact again makes a question mark on the prosecution version. In this way, the delayed dispatching of the empties as well as the crime weapons make the credibility of the positive report of the Ballistic Expert Exh-PM 1- 3 dubious. Abdus Sattar appellant allegedly got recovered a motorcycle which was being driven by him bearing No, 5484-MID at the time of his arrest on 11-11-2009 through memo ExhPRR but the same carries no value because the whole record except the memo does not convey/prove the same to have been used in the commission of crime.
23. After discussing all pros and cons of the prosecution case, the court is convinced that the prosecution has miserably failed to prove its case against the appellants beyond shadow of reasonable doubts, therefore, Criminal Appeal 4o.3320 of 2010 filed by appellant Abdus Sattar and Criminal Appeal No, 2338 of 2010 preferred by Kafayatullah khan appellant succeed and accepted, resultantly, impugned judgment of conviction and sentence is set aside and the appellants are acquitted of the charges imputed, against them by extending them benefit of doubt. They are in quod, directed to be set at liberty, in a trice, if are not required in any other case.
24. Capital Sentence Reference is answered in the negative. The sentences of death are not confirmed.