' MUHAMMAD TARIQ ABBASI, J.---By way of this judgment, the above captioned Criminal Appeal and the Murder Reference shall be disposed of as both are result of single judgment dated 31.3.2009, passed by the learned Judge Anti-Terrorism Court No, 1, Multan, whereby in case FIR No, 395, dated 22.10.2000, registered under Sections 302, 324, 186, 353/34, PPC and 7-ATA, 1997, Muhammad Nawaz (hereinafter referred to as the "appellant/convict") was convicted and sentenced in the following terms:---
(i) Under Section 302(b), PPC to death and compensation of Rs, 50,000/-, payable to the legal heirs of Muhammad Yousaf, Constable, in default whereof to suffer six months' S.I.
(b) Under Section 302(b), PPC read with Section 34, PPC to imprisonment for life for sharing common intention with his co-accused towards commission of murder of Muhammad Khan, SI.
(c) Under Section 7-ATA, 1997 to death and fine of Rs, 50,000/- in default to undergo S.I. For six months.
(d) Under Section 324/34, PPC imprisonment for five years and fine of Rs, 5,000/-, in default whereof to further undergo three months' S.I.
(e) Under Section 186, PPC to three months' imprisonment.
(f) Under Section 353, PPC to one year's R.I.
' It was directed that all the sentences shall run concurrently and benefit of Section 382-B, CrPC shall be available to the appellant/convict.
2. The facts are that Riaz Ahmad, SI/SHO' (PW-19) had made the complaint (Ex.PK), with the contentions that during the night of 22.10.2000, he alongwith Khan Muhammad, SI (deceased), Muhammad Zafar, ASI, Muhammad Yousaf Constable (deceased), Akhtar Ali, Najamul-Hassan, Asghar Ali and Tariq Mehmood Constables was on patrolling in an official vehicle, which was being driven by Zahid Hussain Constable (PW-9); they were available at Adda Siray Sidhu, when received an information that M/s. Nasir (co-accused since convicted), Abid (co-accused since dead), who were involved in case FIR No, 392/2000, registered under Sections 324/452/34, PPC at Police Station Siray Sidhu, at that time were available in the house of Nasir (co-accused since convicted); the complainant alongwith his companions, raided at the house of Nasir (co-accused since convicted), but it was found locked; the Police party returned back and when reached near the house of Mumtaz, in the headlights of the vehicle, Nasir (co-accused since convicted) and Abid (co-accused since dead), armed with 30 bore pistols, alongwith an unknown accused, who was also armed with 30 bore pistol, came in front of the vehicle and started firing at the Police party; Muhammad Khan, SI received fire shots and died at the spot, whereas Zahid Hussain Driver (PW-9) and Muhammad Yousaf Constable became seriously injured, the accused while getting benefit of darkness succeeded in fleeing away. On the basis of the above-said complaint, the FIR (Ex.PK/1) was chalked out. Later on, Muhammad Yousaf Constable also succumbed to the injuries. Earlier, trial of Nasir was held and he was convicted. At that time, the appellant/convict was a proclaimed offender, who later on was arrested and challaned to the Court. The learned Trial Court carried on the due proceedings, charge-sheeted the appellant/convict on 27.01.2009, but he pleaded not guilty and claimed the trial. The prosecution had got examined as many as 19 witnesses. Gist of the evidence led by the star witnesses was as under:---
(i) PW-1 Dr. Ghulam Murtaza had medically examined Muhammad Yousaf Constable deceased (then injured) through the report (Ex.PA) and found the following injuries caused by fire-arm weapons:--
(1) A lacerated fire-arm wound 0.9 cm x 0.9 cm going deep on the back of right upper chest with inverted margins bleeding from the wound was positive. 10 cm from the right shoulder it is wound of entrance.
(2) A lacerated fire-arm wound 0.8 cm x 0.8 cm with averted margins bleeding from the wound was positive on the front of right chest just below the right clavicle. It was wound of exit.
(3) An abrasion 0.5 cm x 0.5 cm on the back of right chest 02 cm from injury No, 1.
' This witness had also examined Zahid Hussain Constable/injured (PW-9) vide the report (Ex. PB) and noticed the following fire-arm injuries:---
(1) A lacerated fire-arm wound 1.5 cm x 1 cm with inverted margin bleeding from the wound positive with swelling on the nose.
(2) A lacerated fire-arm wound 1 cm x 0.5 cm on left side of nose with averted margin bleeding from the wound positive swelling on the whole nose.
(ii) PW-2 Dr. Naeem Ahsan stated that he was the member of Medical Board which had conducted post-mortem examination of the dead-body of Muhammad Khan, SI and prepared the reports (Ex. PC and Ex. PC/1). At that time the following injuries on the dead-body were found:---
(1) Fire-arm entry wound 0.8 cm x 0.8 cm on the back of head 7.5 cm from the top of right ear.
(2) Fire-arm exit wound on the left side of head measuring I cm x 0.9 cm 2 cm from top of left ear pinna above and medially.
(3) 2.3 x 0.6 cm abrasion on the middle of forehead.
' The injuries No, 1 & 2 were found anti-mortem in nature, caused by fire-arm and result of death, which was immediate.
' The above-said Board also performed post-mortem examination of the dead-body of Muhammad Yousaf, Head Constable through the reports (Ex. PD and Ex.PD/1) and noticed the following injuries, which had caused death:---
(1) A lacerated fire-arm wound 0.9 x 0.9 cm going deep on back of right upper chest with inverted margins. 10 cm from right shoulder (wound of entrance).
(2) A lacerated fire-arm wound 0.8 x 0.8 cm with averted margins. It is wound of exit on front of right chest just below the right
(3) An abrasion 0.5 cm x 0.5 cm on back of right chest 2 cm from injury No, 1.
(iii) PW-6 Javed Iqbal Constable attested the Memo. (Ex.PN), through which 30 bore pistol (P-7) got recovered by the appellant/convict was taken into possession by the investigating officer.
(iv) PW-7 Liaqat Ali, PW-13 Muhammad Yousaf and PW-18 Khadim Hussain deposed about extrajudicial confession allegedly made by the appellant/convict, before them regarding commission of the occurrence.
(v) PW-8 Muhammad Masood Bilal, Judicial Magistrate had carried on the proceedings of test identification parade (Ex. PM).
(vi) PW-9 Zahid Hussain Constable (an injured witness), PW-10 Tariq Mehmood Constable, PW- 11 Muhammad Zafar, Inspector (then SI) deposed about participation of the appellant/convict into the occurrence, which resulted into death of Muhammad Khan, SI and Muhammad Yousaf, Head Constable as well as injuries to Zahid Hussain, Constable (PW-9). They had also deposed about joining into the test identification parade held on 27.11.2008 at Central Jail, Multan, for identification of the appellant/convict. PW-10 and PW-11 had also attested the Memo. (Ex.PP), through which the empties (P-10/1-7 and P-11/1-6) collected from the spot and blood-stained pieces of seat cover (P- 12/1-2) were taken into possession by the investigating officer.
(vii) PW-16 Fazal Hussain, SI had formally arrested the appellant/convict on 21.10.2008 and on 22.10.2008, he moved an application (Ex. PV), to the Area Magistrate for the purpose of test identification parade.
(viii) PW-17 Abdul Hayee, SI' had produced the witnesses, in the jail for the purpose of test identification parade, held on 27.11.2008. He had also obtained physical remand of the appellant/convict and interrogated him when on 23.12.2008, he led to the recovery of 30 bore pistol (P-1) from his residential house, which was taken into possession through recovery memo. (Ex. PN).
(ix) PW-19 Muhammad Riaz Ahmad, Inspector was the complainant as well as an eye-witness.
He deposed almost the same facts as were described by him in the complaint (Ex.PK). He also carried on the proceedings fully described in his statement.
3. After examination of the prosecution witnesses, the reports of the chemical examiner, Serologist and Forensic Science Laboratory were tendered in evidence as Ex.PX, Ex.PY and Ex.PZ respectively and case for the prosecution was closed. Thereafter, the appellant/convict was examined as required under Section 342, Cr.P.C, during which the questions emerging from the prosecution evidence were put to him and he denied almost all such questions. In reply to the question "why this case against you and why the PWs have deposed against you?", he contended as under:--- "This is false and frivolous case got chalked out at the instance of Barkat Ali father of accused Nasir. The said Barkat Ali abducted my paternal cousin. I resisted that nefirious act of Barkat Ali and prosecuted my cause against him, however, in a Punchayati proceedings he delivered back the said abductee. Talib paternal uncle of accused Nasir and his son Bashir and Nasir himself had attempted on my life on number of occasions. It is due to enmity, I have been involved in this case.
' PWs being police officials subordinate to the complainant and I.O. Have deposed falsely against me."
' The appellant did not opt to lead any evidence in his defence or make statement under section 340(2), CrPC. After completion of the proceedings, the learned Trial Court pronounced the impugned judgment in the above-mentioned terms. Consequently, Criminal Appeal and Murder Reference in hand.
4. The learned counsel for the appellant/convict has argued that he was not named in the FIR and subsequently roped with mala fide; the proceedings of test identification parade, which resulted into the involvement of the appellant/convict in the case were not held as per the settled principle of law, hence illegal; the prosecution had not produced any independent witness as all the material witnesses were police officials; whose statements were full of contradictions, but the learned Trial Court had failed to give any consideration to the said aspect; the recovery of pistol was planted, hence reports of the Forensic Science Laboratory are not believable; the prosecution case and the charge against the appellant/convict was not proved, hence he was entitled for acquittal. Consequently, it has been prayed that by accepting the appeal in hand, the appellant/convict may be acquitted of the charge.
5. The learned Deputy Prosecutor General has vehemently opposed the appeal, while supporting the impugned judgment to be result of correct appreciation of the evidence and material available on the record, hence not interferable.
6. Arguments of both the sides have been heard and the record has been perused.
7. In the complaint (Ex.PK) and the FIR (Ex.PK/1), Muhammad Riaz Ahmad, SI/SHO of Police Station Siray Sidhu (PW-19) had categorically stated that when he alongwith the Police officials, named in complaint and FIR was on patrolling and received the information about availability of Nasir (co- accused since convicted) and Abid (co-accused since dead), in the house of Nasir, who were involved in case FIR No, 392/2000, registered at the above-said Police Station, hence raided at the house, but it was found locked; when the police party was returning, in the way, Nasir (co-accused since convicted) and Abid (co-accused since dead) alongwith an unknown, the description of whom was given, all armed with 30 bore pistols, came in front of the official vehicle and started firing, which resulted into death of Muhammad Khan, SI at the spot, whereas injuries to Zahid Hussain Constable/Driver of the vehicle (PW-9) and Muhammad Yousaf, Head Constable, who later on, succumbed to the injuries. When the above-named complainant entered in the witness- box, he satisfactorily repeated the above-mentioned contentions and disclosed that the unknown companion of the above-named accused was Muhammad Nawaz (appellant/convict), who fully participated in the occurrence by making the firing. Same was the contention of Zahid Hussain, Constable (PW-9), who sustained injury at the spot as well as Tariq Mehmood, Constable and Muhammad, Zafar, Inspector (PW-10 and PW11), Who had witnessed the occurrence. All had nominated and implicated the appellant/convict towards commission of the occurrence, which resulted into death of two Police. Officials and injuries to another. It has been observed that after registration of the case, the appellant/convict became absconder and remained so for eight years and ultimately arrested on 21.10.2008, when for the purpose of test identification parade, he was sent to the jail. During the above-said parade, which was held under the supervision of Muhammad Masood Bilal, Judicial Magistrate (PW-8), the appellant/convict was rightly identified by the above-named witnesses. The statements of the above-named witnesses, towards full participation and involvement of the appellant/convict in the occurrence were corroborative with each other. The defence had failed to contradict the versions of the witnesses, narrated in the respective statements or bring on the record any material favourable to the appellant/convict.
When the appellant/convict, after the proceedings of test identification parade was joined into the investigation, he made a disclosure and then led to the recovery of 30 bore pistol (P-7) from his residential house, which was secured by the investigating officer namely Abdul Hayee, SI (PW-17) through Memo. (Ex.PN), attested by Javed Iqbal (PW-6). The above-mentioned versions of the above-named witnesses gained support from the medical evidence led by Dr. Ghulam Murtaza (PW-1) and Dr. Naeem Ahsan (PW-2), as well as the above-mentioned reports, prepared by them as the fire-arm injuries on son of the above-named deceased and injured PW were confirmed.
8. No doubt material witnesses in this case are police officials but they are as good witnesses as any other private persons, hence their statements could not be discarded only for the reason that they are police employees. Reliance in this regard may be placed upon the cases of Muhammad Azam v. The State (PLD 1996 Supreme Court 67), Naseer Ahmed v. The State (2004 SCMR 1361), Aala Muhammad and another v. The State (2008 SCMR 649) and Muhammad Khan v. The State (2008 SCMR 1616). The relevant portion of case of Muhammad Khan (Supra) reads as under:- "They are as good and respectable witnesses as other public witnesses and their statements cannot be discarded merely for the reason that they were the police employees."
9. As a result of the above discussion, we are of the opinion that the findings of the learned Trial Court, which resulted into the impugned judgment, towards conviction of the appellant/convict, are justified and call of the day. But on the basis of the attending facts and circumstances, especially when no specific injury to the deceased and injured PW was attributed to the appellant/convict, we are of the view that the penalty of death is harsh one. It is well-recognized principle, by now that an accused is entitled for benefit of doubt as an extenuating circumstance while dealing his quantum of sentence as well. In this regard, reference may be made to the case of "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188). The relevant portion whereof reads as under:- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of "sentence."
10. Consequently, while dismissing the appeal (08 of 2009), the conviction of the appellant/convict, awarded to him by the learned Trial Court is maintained, but his sentence of death is altered to imprisonment for life. The rest of the above-mentioned sentences are upheld. The amount of fine and compensation imposed to the appellant/convict, by the learned Trial Court and the imprisonment, in their default are maintained. All the sentences of the appellant shall run concurrently. He shall also be entitled for the benefit of Section 382-B, Cr.P.C. Resultantly the, Capital Sentence Reference No, 14/2009 is answered in negative and death sentence awarded to Muhammad Nawaz (appellant/convict) by the learned Trial Court is not confirmed. Conviction Maintained/Death Sentence Altered To Sentence of Life Imprisonment.