' MAZHAR IQBAL SIDHU, J.--- Dilawar Mahmood alias Dulli appellant, in the appeal, as mentioned above, has impugned the punishing judgment of learned Special Judge, Anti-Terrorism Court, Sargodha dated 7-12-2010 whereby he was tried in a case registered vide FIR, No,236 dated 19-9- 2007 under sections 302/109, P.P.C. Read with offences under sections 7 and 21(L) of the Anti- Terrorism Act, 1997 at Police Station, Kundian, District Mianwali and punished as follows:-- Convictions Sentences Under section 302(6),P.P.C.Sentence of death as Tazir for committing Qatl- i-amd Muhammad Afzal and to pay compensation to the tune of Rs, 2,00,000 to the legal heirs of deceased as required under section 544-A, Cr. P. C. and in default where of to further undergo simple imprisonment for six months.
Under section 7(a) of the Anti Terrorism Act, 1997.Sentence of death and to pay fine to the tune of Rs,1,00,000 and in default whereof to further undergo simple Imprisonment for six months.
Under section 21(L) of the Anti Terrorism Act, 1997.Rigorous imp risonme nt for ten years. ' whereas capital sentence reference sent by the learned trial court under section 374, Cr.P.C. For confirmation of death sentence or otherwise of the appellant/death convict. Both the matters are being disposed of through instant single judgment.
2. Complainant Muhammad Asghar (P.W.03) have had recorded his statement/ complaint Exh-PB before Majeedullah, S.I. (P.W.09) with Police Station, Kundian, District Mianwali at 09:15 a.m. On 19-9- 2007, on the basis of which formal FIR Exh-PB/1 was chalked out.
3. Facts in brief as disclosed by complainant Muhammad Asghar in complaint Exh-PB are that he was a contractor whereas his brother Muhammad Afzal (deceased) got the contract of Cattle Market, Kundian. On 19-9-2007, the day of incident, at 08:45 a.m., he along with his brother Muhammad Afzal (deceased), Muhammad Yousuf and Rana Tahir Iqbal was present at Cattle Market, Kundian, in the meantime, Dilawar alias Dulli, appellant and Muhammad Arshad (since proclaimed offender) armed with Kalashnikovs while riding on a motorcycle came there from eastern side of Chashma Road while raising lalkaras simultaneously both of them made straight burst fire shots at Muhammad Afzal, his brother, which hit him on his head, chest, the right side of abdomen, the right lower side of buttock and on the upper part of left leg, who fell to the ground dead. Both the accused while making fire shots disappeared from the spot. Besides the complainant, the occurrence was witnessed by Muhammad Yousuf and Rana Tahir Iqbal, P.Ws.
' The motive behind the occurrence was stated to be enmity, because of it, Dilawar alias Dulli, the appellant and Muhammad Arshad (P.0) on the conspiracy of Muhammad Aslam, killed Muhammad Afzal.
' The complainant (P.W.3) while leaving the dead body at the spot in the custody of the P.Ws., came at the police station for the registration of the case.
4. The investigation of case was conducted by Majeedullah Khan, S.I., (P.W.09), who deposed that on 19-9-2007 Muhammad Asghar complainant (P.W.3) appeared before him in the police station and on his verbal statement made before him, he recorded it in formal FIR Exh-PB in verbatim and it bore his signature, the same was read over to the complainant who signed it in token of its correctness. Thereafter on receipt of information about the occurrence, the I.O. Proceeded to the place of occurrence, where dead body was lying, drafted injury statement Exh-PF, inquest report Exh-PG; deputed Altaf Hussain constable for getting postmortem examination, inspected place of occurrence, secured blood imbrued earth by way of sealed parcel vide recovery memo Exh-PC, prepared rough site plan Exh-PH and recorded the statements of P.Ws. Muhammad Yousuf, Rana Tahir and others. Muhammad Altaf constable produced before him last worn blood imbrued clothes of deceased comprising of shirt P-1, shalwar P-2, Bunyan P-3 and a sealed phial (P-4), secured the same through recovery memo Exh-PD. On 20-9-2007, he recorded statements under section 161, Cr.P.C. Of Muhammad Fayyaz and Afzaal as well as supplementary statement of Muhammad Asghar complainant. On 21-9-2007, he got visited the draftsman who after preparation of scaled site plan Exh-PA and Exh-PA/1 handed over the same to him on 25-9-2007.
Thereafter the investigation was entrusted to Inspector/SHO.
' Ahmad Abbas, Inspector/SHO while appearing as P.W.10 deposed that on 5-10-2007, he arrested Muhammad Aslam accused. On 26-9-2007 vide an application Exh-PI, he obtained non-bailable warrant of arrest of all three accused of this case and deputed Abdul Ghaffar, A.S.-I. For execution.
On 2-10-2007 vide an application Exh-PJ obtained proclamation of all three accused and deputed Abdul Ghaffar, ASI. After investigation, he challaned Muhammad Aslam accused in this case.
' Finally, the investigation was conducted by Muhammad Aslam, Inspector/SHO (P.W.13). He deposed that on 7-3-2010, Dilawar appellant, the then proclaimed offender was arrested. During interrogation, on his disclosure and pointing out, he got recovered Kalashnikov P-5 along with twenty live cartridges P-6/1-20 from his residential house in the area of Chah Mirzaywala, took the same into possession vide recovery memo ExhPN attested by the P.Ws. And recorded their statements, prepared site plan of place of recovery Exh-PN/1. Prior to this a 44-bore rifle was recovered from the possession of the appellant at the time of his arrest. After this he prepared supplementary report in terms of section 173, Cr.P.C. And the name of the appellant was placed in column 3 of the said report being found him guilty.
5. Learned trial court after observing all the pre-trial codal formalities, indicted the appellant to which he pleaded nonculpabilis by claiming trial, whereupon the prosecution lead its evidence to prove case and produced 13 prosecution witnesses in all for the same.
6. Learned DDPP renounced P.Ws. Namely Muhammad Yousuf, Fayyaz Hussain and Asmatullah, SI as being de-trop closed the prosecution evidence.
7. The medical evidence was adduced through the statement of Dr. Safdar Khan Kundi (P.W.08) who on 19-9-2007 at 11:50 a.m. Performed postmortem examination on Muhammad Afzal's dead body and observed injuries infra:- 1(a) A fire arm wound of entry over back of lower part of head in the midline 0.5 *cm x 0.5 cm in diameter. It communicated with fire arm wound of exit.
1(b) Skull bone badly crushed, widely open and piece of bone was missing. Manengies along with brain were crushed. Brain matter was coming out from the gap of skull bone and the whole brain was visible through the hole. Metallic foreign body was recovered from the open skull, which was sealed in bottle and handed over to the police. Small pieces of bones present in crushed brain.
2(a) A firearm wound of entry 1 x 0.5 cm over upper part of back of right chest, 6 cm below scapula.
It communicated with firearm wound of exit.
2(b) 3 x 1.5 cm over upper lateral part of left chest, 3 cm left lateral to nipple.
3(a) A firearm wound of entry 1.2 cm x 1 cm over lower part of right lumber region and it communicated to a firearm exit wound.
3(b) 2 cm x 1.5 cm over epigastrium in the mid line, omentum was coming out from the wound.
4(a) A firearm wound of entry 1.2 cm x 1 cm over back of lower part of right side of waist, 8 cm left lateral to the mid line and it communicated to a firearm exit wound.
4(b) 2 cm x 2 cm over upper lateral part of abdomen, 18 cm below left nipple, omentum was coming out from the wound.
5(a) A firearm wound of entry 1.5 cm x 1 cm over upper back part of left thigh and it communicated to a firearm exit wound.
5(b) A firearm wound of exit in zigzag shape 5 cm x 4 cm x muscle deep over upper lateral part of back of left thigh.
OPINION ' In his opinion, cause of death was due to crushed fracture of skull, that damaged the brain, heart, lungs, liver, intestines collectively and individually due to injuries Nos.1 to 4 which were sufficient to cause death in ordinary course of nature and due to haemorrhage and shock. All injuries were ante mortem and caused by firearm.
' Probable time that elapsed between injuries and death was soon after the injuries and that between death and postmortem examination was about four hours.
' After the postmortem examination, he handed over the stitched dead body along with police papers, last worn clothes of deceased, sealed phial and copy of post mortem report were handed over to the police. Exh-PE was the correct carbon copy of postmortem report prepared and signed by him. Exh-PE/1 and Exh.PE/2 were correct diagram prepared and signed by him".
8. Afterwards the statement of the appellant under sections 342 Cr.P.C. Was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. However, he opted to adduce evidence in his defence but did not appear as his own witness under section 340(2), Cr.P.C. In his defence.
9. He replied to the question "why this case against you and why the P. Ws. Have deposed against you" answered as follows:-- "I am innocent. My father Wazir Muhammad was witness in case FIR No,208/2007 Police Station Kundian, District Mianwali against Mumtaz son of Shafi Lambardar of Kundian. The above said Mumtaz and his father Muhammad Shafi are near relative of Muhammad Asghar complainant of this case. On this grudge, I have been falsely implicated in this case. Muhammad Ashgar complainant of this case has also involved my real brother Tariq in another case.
Consequently, my brother Tariq was declared innocent. Our family has no enmity against the complainant party except that my father was witness in above mentioned case. Muhammad Aslam co-accused has been acquitted in this case P.Ws. Are related to each other and also hailed from one gang of criminals".
10. He produced in his defence certified copies of FIR No,378/2009 Exh.DD, FIR No,345/09 Exh.DE, FIR No,215/2009 Exh.DF and FIR No,208/2007 Exh.DG Police Station Kundian and closed defence evidence.
11. Trial proceedings yielded in conviction and sentence as mentioned opcit. Hence, the appeal as well as Capital Sentence Reference.
12. Learned counsel for the appellant has argued that presence of the P.Ws. At the relevant time at the time of occurrence is highly improbable in the circumstances of the case and because of their relationship, they have become false witnesses; indubitably Muhammad Asghar (P.W.3) complainant is real brother of the deceased whereas another eye-witness Rana Tahir Iqbal P.W.4 is from the brotherhood of the complainant and resident of Mohallah Qadirabad, Mianwali City, whereas the occurrence had taken place in the cattle market situated in Kundian, District Mianwali and on account of comradeship with the complainant party, they have become a false witness, otherwise, their presence in the cattle Market has not been proved beyond shadow of doubts because the record of the case does not show that they ever either purchased or sold any cattle or produced any receipt in respect thereof or had produced any other witness to establish that on rueful day, they were present at the spot. Learned counsel has further argued that Muhammad Asghar, complainant has not brought on the record any documentary evidence to prove that he was holding a valid license or permit of the cattle market being a contractor, where the alleged incident took place, in these circumstances, presence of these two P.Ws. At the place of occurrence is highly doubtful. Next to it, it has been argued that no unrelated/independent person from the cattle market has supported the prosecution version, therefore, statements of these persons cannot be relied upon in the circumstances of the case.
' Learned counsel as to the medical evidence has argued that no specific injury has been attributed to the appellant whereas the deceased received five injuries in all having been caused with fire arms, out of which injuries Nos. 1 to 4 were sufficient to cause death of the deceased collectively and individually in ordinary course of nature; the fact remains that the prosecution remained failed to establish that which of the injuries can be said to have been caused by the appellant whereas the appellant and Muhammad Arshad Proclaimed Offender, both were shown to have equipped with Kalashnikov and with the same, burst fire shots were caused on the body of the deceased, in this way, medical evidence according to learned counsel appears to be unlike to the ocular account. Learned counsel has further argued that no crime empty was taken into possession from the spot and in absence of any positive report of the weapon allegedly recovered from the appellant vide recovery memo Exh-PN on 7-3-2010, carries no value in the eye of law and the same situation lies with the recovery of a motorcycle recovered through recovery memo Exh- DC on the same day because neither any number of the said bike had been mentioned in the narratives of the FIR nor the P.Ws. Had mentioned it in their testimony before the court.
' Lastly to meet the evidence of abscondence of the appellant, learned counsel has argued that indubitably long drawn abscondence exists in this case as the appellant was arrested on 7-3-2010 whereas the incident took place on 19-9-2007 but all reports in this respect made by the police officers are fabricated; the appellant was innocent and being so he was not arrested by the police but later on in collusion with the complainant party, the appellant was declared as proclaimed offender but this fact alone would not make the appellant culpable for the murder of the deceased Muhammad Afzal. By concluding the long and short of his arguments, learned counsel has prayed for the acceptance of the appeal.
16. Mr. Khurram Khan, learned D.P:G. Defending to the impugned judgment has argued that the matter was reported promptly to the police; the appellant along with his co-accused, Muhammad Arshad, a proclaimed offender was nominated with specific role of causing burst fire shot injuries on the body of the deceased, the same do exist as per Exh-PE, Postmortem Examination Report of the deceased; the presence of the P.Ws. In all probable circumstances of the case is natural and long unexplained abscondence of the petitioner corroborates the prosecution version about the fact that he participated in the commission of occurrence. Learned DPG has also argued that the deceased had received multiple injuries on his body and injuries Nos. 1 to 4 in all respect collectively as well as individually were sufficient to cause the death of the deceased, therefore, medical evidence in all respects, sufficiently corroborates the ocular account, thus, has prayed for dismissal of appeal.
14. Arguments heard. Record perused.
15. The incident took place on 19-9-2007 at about 08:45 a.m. In the Cattle Market situated in the territorial jurisdiction of Police Station, Kundian, Distrcit Mianwali distant to it by 1/2 Kilometer and within thirty minutes Muhammad Asghar P.W.3, real brother of the deceased reported the matter to the police in police station vide Exh-PB detailing therein the incident. The promptness in lodgment of the FIR excludes every doubt that the complainant had deliberated or consulted anybody before the registration of the case and it is the settled law on this proposition that if an incident is reported in the police station without consuming unnecessary time, then a sanctity has to be attached to the said report. The parties to the case were known to each other before the incident, the same had been perpetrated by the appellant and his absconding particeps criminis under the brightness of sun, therefore, the question of mistaken identity of the accused persons does not arise in the case. Igniting cause in the murder of Muhammad Afzal has been stated in Exh-PB by complainant P.W.3 as previous enmity but without any further detail of it, Rana Tahir Iqbal P.W.4 has deposed nothing as to motive of the case.
16. So far as the ocular account of the prosecution case is concerned, the same has been found hinging upon the statements of P.W.3, Muhammad Asghar, real brother of the deceased and Rana Tahir Iqbal P.W.4 not related to the complainant party whereas other eye-witness Muhammad Yousuf was renounced as being Unnecessary by the prosecution. Muhammad Asghar complainant was a contractor by profession, whereas deceased Muhammad Afzal contracted Mandi Maveshain, Kundian. On the day of incident i,e, 19-9-2007, Muhammad Asghar (complainant), Muhammad Afzal (deceased) and Muhammad Yousuf (eye-witness not produced) and Rana Tahir P.W.4 were present in the said cattle-market. The presence of the deceased and Muhammad Asghar as being the runners of the market on contract appears to be quite natural whereas presence of Rana Tahir Iqbal P.W.4 along with them, at the relevant time of occurrence, cannot be regarded preposterous for the simple reason that it is difficult for a single person to make all arrangements of such like open business. During the cross-examination of these two P.Ws., the defence badly failed to create any dent or to uproot the presence of the P.Ws. At the place of occurrence at the relevant time. It has gone admitted that Muhammad Asghar, complainant (P.W.3) was real brother of the deceased but status of Rana Tahir Iqbal, P.W.4 eye-witness is one of an independent person. Neither his relationship has been brought on the record with the complainant or the deceased nor it has been established that at the relevant time, he was not there. So much so, he has denied the suggestion in his cross- examination that he had any friendly terms with the deceased or the complainant. Both these P.Ws. Have been noticed unison so far as the material points of the prosecution case are concerned. Undeniably, the appellant and his absconding co-accused, both held Kalashnikovs at the relevant time of occurrence while riding a bike and mounted murderous assault resulting in causing injuries to death of the deceased at -the spot. Both of them, after raising lalkaras had started firing on the deceased resulted in his death.
' It is observed with a heavy heart that the defenders while examining the P.Ws. Do not seem to be responsive to their noble task. Knowing of art of cross-examination is almost the ultimate in a legal profession. A desultory grilling causes irreparable loss to the litigants, ' Elbert Hubbard an American writer and editor says:-"the lawyers the only in whom ignorance of law is not punished".
17. The medical evidence also corroborates the ocular account. P.W.8, Dr. Safdar Khan Kundi, who performed autopsy on the dead body of the deceased on the day of incident at 11:50 a.m., observed five complete injuries (entry wounds and exits), all were opined to have been caused by fire arms. The probable time towards "injuries and death was declared soon after the injuries" whereas towards death to postmortem as about four hours. In the autopsy/necropsy report ExhPE, doctor has not observed any bleeding or tattooing on the apertures of the entry wounds of the deceased and so during the cross-examination, he has admitted that the deceased had received fire shot injuries from more than five feet distance. This fact corroborates the ocular account for the simple reason that the appellant along with his accomplice came at the spot by riding a bike and fired burst shots on the deceased from a distance having been shown in the site plan-in-scale Exh-PA as twenty feet in between the deceased and the appellant and no cross-examination was made by the learned defence counsel on P.W.1, Muhammad Shafique, Draftsman, who prepared the site plan in duplicate Exh-PA and Exh-PA/1 on pointing out by the P.Ws.
18. Another fact which further corroborates the ocular testimony is that dimensional diversities of entry wounds inter se, necessarily establish that two fire arms must have been used in the occurrence. For its better understanding, the description text of entry wounds available on the dead body of the deceased is reproduced as follows:- 1(a) A fire arm wound of entry over back of lower part of head in the midline 0.5 cm x 0.5 cm in diameter. It communicated with fire arm wound of exit.
2(a) A firearm wound of entry 1 x 0.5 cm over upper part of back of right chest, 6 cm below scapula.
It communicated with firearm wound of exit.
3(a) A firearm wound of entry 1.2 cm x 1 cm over lower part of right lumber region and it communicated to a firearm exit wound.
4(a) A firearm wound of entry 1.2 cm x 1 cm over back of lower party of right side of waist, 8 cm left lateral to the mid line and it communicated to a firearm exit wound.
5(a) A firearm wound of entry 1.5 cm x 1 cm over upper back part of left thigh and it communicated to a firearm exit wound.
In this way, no doubt is left that the medical evidence is coherent to the ocular account. To a question of the learned defence counsel about the non-availability of the crime empties at the place of occurrence, Majeedullah Khan, SI (P.W.9) has answered that a crowd thronged the cattle market, therefore, the same might have been dislocated.
19. Now we come to the abscondence of the appellant and recovery of Kalashnikov as well as the motorcycle from him. The occurrence took place on 19-9-2007 at 08:45 a.m. On the same day at 09:15 a.m. The incident was reported to the police at police station through Exh-PB by P.W.3.
Thereafter the investigation was undertaken by P.W.9 Majeebullah, I.0.1 Inspector. Hectic efforts were made to cause the arrest of the accused persons mentioned in the FIR but both could not be traced out. In this respect, the prosecution had produced P.W.11 Abdul Ghaffar, ASI, whom the non- bailable warrant of arrest of appellant, Dilawar Mahmood alias Dulli Exh-PK and that of Muhammad Arshad (PO) Exh-PL as well as Muhammad Aslam Exh-PM were entrusted for execution. The same could not be executed and reports on their rears were scribed as Exh-PK/1, ExhPL/1 and Exh-PM/1.
Then, proclamations were issued against them as Exh-PK/2, Exh-PL/2 and Exh-PM/2, which were accordingly displayed at conspicuous places and on its over leaves. Reports figure as Exh-PK/3, Exh-PL/3 and Exh-PM/3 respectively. On cross-examination of said P.W. Nothing has been brought favourable to the defence, through question No, 4 put under section 342, Cr.P.C. As to explanation of abscondence of the appellant, he has replied as follows:-- "I did not appear before the police due to apprehension that Muhammad Shafi Lambardar and Muhammad Asghar complainant may get me murdered in a police encounter. Later on I on my own appeared before police to prove my innocence but I was not heard by the police properly being in-league with opposite party".
But this plea was never suggested either to the complainant P.W.3. Or to the investigating officer. In these circumstances, prolonged unexplained abscondence of the appellant has been proved on the record beyond shadow of reasonable doubt. On 7-3-2010, he was arrested by P.W.13, Muhammad Aslam, Inspector and got recovered Kalashnikov P-5 along with 20 live bullets P-6/1- 20 in presence of Ehsanullah, SI, Z.W.12 and Asmatullah, S.I from Chah Mirzay Wala, which was secured through memo Exh-PN and site plan of the place of recovery was also prepared as Exh- PN/1. On the same day, motorcycle was also taken into possession vide recovery memo Exh-DC. It is, however, noticed that Kalashnikov was not sent to the office of Forensic Science Agency, Lahore to ascertain about its present condition as to workability or otherwise, perhaps no crime empty was taken into possession from the spot and the same was recovered after a period of about 2-1/2 years of the occurrence. In these circumstances, after concluding the whole case, the court has come to the conclusion that the prosecution has proved its case beyond shadow of reasonable doubts against the appellant but the ambient circumstances of the case have compelled us to reduce the quantum of sentence, as the same is hard and severe in the circumstances of the case, the same are as under:--
(a) The prosecution has failed to detail its motive in the FIR. Only in Exh-PB , it has been written that motive was previous enmity (wajah abad sabiqa dushmani hay). P.W.3 in his examination in chief has not explained it whereas P.W.4 has not uttered even a single word as to motive and furthermore no distinct question of motive has been put to the appellant under section 342, Cr.P.C.
It has further been observed that through the statement of the appellant as to the motive, it has not been asked even throughout the whole questionnaire formulated to be answered. By this way, the Court has come to the conclusion that the prosecution has miserably failed to prove its motive against the appellant and off-course the same is not sine qua non. Strength has been sought in a case reported Noor Muhammad v. The State and another (2010 SCMR 1997), wherein the Hon'ble Supreme Court of Pakistan has held as follows:-- "Thus the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCMR 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCMR 432), it has been held that the prosecution though not called upon to establish the motive in every case yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the offence. In the case of Ameenullah v. The State (PLD 1976 SC 629) it has been held that where the motive is an impotent constituent and is found by the court to be untrue. The court be on guard to accept prosecution story.
(b) The prosecution has not been able to pin point any particular injury available on the body of the deceased having been caused by the appellant which had caused the death of the deceased.
It has, however, been noticed that injuries Nos. 1 to 4 have been declared individually as well as collectively causative of the death of the deceased but it has remained in non-clarification that which of those has specifically been caused by the appellant.
' Reliance is placed in case titled Nasir and others v. The State reported as 1998 M LD 2021 (Lahore) wherein held as under:-- "S.302/34---Criminal Procedure Code (V of 1898), S.376---Appreciation of evidence-- Confirmation of death sentence---Medical evidence did not specify as to which injury was the cause of death of deceased---Prosecution case that both the accused caused injuries on person of deceased, but death of deceased according to opinion of doctor, occurred as a result of collective effect of all the three injuries--- ' None of accused could be individually, independently attributed or burdened for causing death and awarded maximum sentence of capital punishment---Motive had not been established beyond doubt and it was mere wild assertion and attribution made by complainant with regard to alleged alteration over turn of water between deceased and accused few days before occurrence- -- ' Complainant was not even present when alleged Quarrel took place between accused and deceased---Conviction of accused under section 302/34, P.P.C. Was maintained in circumstances--- Sentence of death, however, was not confirmed as sentence of imprisonment for life to each accused, would adequately meet the ends of justice".
20. In these circumstances, quantum of sentences imposed upon the appellant under section 302(b), P.P.C. As well as under section 7 of the Anti-Terrorism Act, 1997 are commuted to imprisonment for life each from death each. The amount of compensation as well as fine shall remain enforced as ordered by the learned trial court. However, all other sentences shall remain intact and run concurrently by extending the appellant benefit of section 382-B, Cr .P. C . With this modification in the quantum of sentences, instant appeal stands dismissed. Resultantly, death sentence separately handed down to the appellant under mentioned offences is not confirmed.
Capital Sentence Reference is answered in the negative.