Qazi Muhammad Amin Ahmed, J.--We propose to dispose of Capital Sentence Reference No, 09 of 2011 filed by the State and Crl. Appeal No, 708 of 2012 filed by Muhammad Rafique & another, as these matters arise out of judgment dated 30.11.2011 passed by the learned Special Judge, Anti- Terrorism Court No, II, Multan.
2. Appellants were tried for committing Qatl-e-Amd of two Qaumi Raza Kars namely Muhammad Haji & Umar Farooq (deceased) within the area of Chak No, 66/10-R situating at a distance of 10- miles from Police Station Saddar District Khanewal. Vide judgment dated 30.11.2011, appellants were convicted and sentenced as under:-
(1) Muhammad Rafique Under Section 302-B PPC Awarded death sentence on two counts. Compensation of Rs,2,00,000/- each to the legal heirs of Muhammad Hai & Umar Farooq deceased u/S. 5444 of Cr.P.C, or in default thereof to further undergo six months 8.1, Life Imprisonment with compensation of Rs,50,000/- to the legal heirs of Muhammad Haji & Urnar Farooq deceased each u/S. 544-A of Cr.P.C, or in default thereof to further undergo six months S.I.
Under Section 186, PPC.
Sentenced with fine of Rs, 1000 or in case of default thereof to further undergo 1 month, S.I.
Under Section 353, PPC.
Sentenced with fine of Rs,5000 or in case of default thereof to further undergo 3 months, S.I.
(2) Muhammad Iqbal - appellant.
Under Section 302(b)read with Section 34, PPC Life imprisonment with payment of compensation of Rs,2,00,000/- to the legal heirs of both the deceased u/S. 544-A of Cr.P.0 or in default thereof to further undergo S.I for six months.
Under Section 7(a) of ATA, 1997 read with 34, PPC Life imprisonment with fine of Rs,50,000/- or in default thereof to further undergo S.I for six months.
Under Section 186. PPC.
Sentenced with fine of Rs, 1000 or in case of default thereof to further undergo one month, S.I.
Under Section 353, PPC.
Sentenced with fine of Rs,5000 or in case of default thereof to further undergo 3 months, S.I Benefits of Section 382-B, Cr.P.0 were extended to them.
3. Prosecution story as contained in FIR (Ex.PA) recorded by Muhammad Anwar ASI( PW-1) on the basis of complaint (Ex.PA/1) of Abdul Razzaq (PW-10) recorded by Muhammad Saleem, SI (PW-8) at 1.45 p.m is that on the fateful day at about 12.30 p.m. When he in the company of Muhammad Haji and Umar Farooq, were on patrol duty on official motorcycle in Chak No, 78-B/15-L, they stopped two persons at Chowk Jamal, riding on a motorcycle. One of them, supporting a beard with dark complexion, the second with wheatish complexion round face with medium height; being found as suspects, they were signaled by the complainant, who instead fled away and were chased by the contingent. In this hot pursuit, near Chak No, 60/10-R, one from amongst the suspects sitting on the rear started straight firing, which hit Muhammad Haji deceased. According to the complainant,second person driving motorcycle hit Umar Farooq with his pistol. Muhammad Haji and Umar Farooq succumbed to their injuries at the spot.
4. The dead bodies were dispatched to the Hospital. Medical Officer Dr. Syed Naeem Ahsan (PW-5) conducted post-mortem examination on 05.04.2011 at about 7.00 P.M. Two entry wounds were found on the dead body of Muhammad Haji, one on front of left side of chest 7.5 CM from midline 2CM below and medial to left nipple and second on left side of chin. Lower jaw was broken into pieces. Injuries No, 2 & 4 respectively are exit wounds. The Medical Officer opined that injuries were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was noted as immediate and between death and postmortem was with 12 hours.
There were two entry wounds noted on the dead body of Umar Farooq, one on upper margin of left nipple. 8 cm from midline and second on left side of face, 1.8 cm from left angle of mouth at the same level. The injuries were ante-mortem sufficient to cause death in the ordinary course of nature. Time between injury and death was immediate and between death and postmortem was noted within 12 hours.
5. On spot inspection, I.0 prepared site-plan without scale (Ex.PN), besides taking other investigative steps that included seizer of blood stained earth from two points secured vide memo.
(Ex.PK & Ex.PL), 4 casings of 30-Caliber (P-11/1-4) secured vide memo. (Ex.PM). Blood stained earth and empties were made into sealed parcels separately. Sealed parcel containing 4 30-Caliber casings alongwith parcels of blood stained earth were dispatched to the office of Forensic Science Laboratory and Chemical Examiner on 14.04.2011 through Bashir Ahmad 64/C (PW-2).
6. Appellant Muhammad Iqbal alias Bali was in the custody of Chab KaIan Police in connection with another crime reported vide FIR No, 43 of 2011, it was during the course of investigation in the said case that the appellant was arrested in the present case. Muhammad Iqbal had led to the recovery of 30-Caliber pistol in the said case which was transposed into the present case vide memo. Ex.PU. Muhammad Rafique-appellant was arrested on 14.05.2011 who pursuant to a disclosure led to the recovery of pistol (P-12) on 05.06.2011 secured vide memo. (Ex.PQ) by the Investigating Officer. Recoveries of (P-12) & (P-14) were made into sealed parcels separately.
According to the Forensic reports blood secured from the spot was of human origin whereas casings secured from the spot wedded with pistol (P-12) recovered at the instance of Muhammad Rafique appellant.
7. Upon submission of report under Section 173, accused were sent to face trial before the learned Judge, Anti-Terrorism Court No, II, Multan where they were indicted on 30.08.2011; they pleaded not guilty and claimed trial.
8. Prosecution in order to bring home charge against both the accused produced as many as 13 witnesses besides relying upon forensic reports. Both the appellants took the identical plea which is reproduced below: "It is a false case against me and unknown occurrence. The police involved me in this case as the case was untraced and blind I have been substituted against the real culprits. I have not 'committed the present occurrence. The PWs are interested witnesses and have deposed falsely against me due police officials and close relationship with the deceased persons. I have been made an escape goat. I am. Innocent".
9. On the conclusion of the trial, the learned trial Court convicted and sentenced the appellants as detailed above. Hence, this appeal and Capital Sentence Reference.
10. Learned counsel for the appellants contend that occurrence did not take place in the manner as alleged in (Ex.PA) which is outcome of deliberations and consultations. None of the appellants was nominated in the complaint Ex.PA/1 and they have been framed in the case subsequently on the basis of suspicion; that identification parade wherein the appellants were identified by the prosecution witnesses was conducted in violation of safeguards provided under the High Court Rules and Orders. Lastly adds that in case position taken by the accused is juxtaposed with prosecution evidence the former sounds more plausible and have prayed for the acquittal of the appellants.
11. On the other hand, the learned DPG assisted by learned counsel for the complainant have opposed this appeal on the ground that prosecution witnesses in whose presence incident occurred correctly identified both the appellants. Occurrence being a day light affair, it was not difficult for the witnesses to identify the appellants in test identification parade. None of the witnesses produced by the prosecution had any animus or grudge against the appellants and there is no earthy reason for substitution. Substitution is a rare phenomenon antithetical to retributive human instinct.
12. We have heard the learned counsel for the parties, Deputy Prosecutor General, Punjab and perused the record.
13. Homicidal deaths of both the deceased, under circumstances narrated in Ex.PA/1 are not seriously disputed. According to medical evidence both the deceased were done to death as a result of fire-arm injuries. Duration between the injuries, deaths and postmortems coincides with the time of incident given in Ex.PA/1. None is nominated by name as accused in the case; this confirms that matter was reported faithfully as witnessed by the witnesses. The main stay of the prosecution comprises of evidence of test identification parade, deposition by the eye-witnesses and recoveries at the instance of the appellant. We have gone through the statement of PW-9 Muhammad Tariq, Civil Judge-cum-Judicial Magistrate, who supervised test identification parade; his statement in the Court and proceedings of test identification parade (Ex.PP) recorded by him reflect observance of all the legal safeguards ensured to an accused under the law. Both the appellants were arrayed with 9 dummies each in separate rows. The Supervising Magistrate had taken all the precautions to exclude the possibility of any outsider to view the appellants; they were correctly identified. Ocular account is furnished by Abdul Razzaq 517/C (PW-10), Muhammad Akram (PW-11) and Saeed Ahmad (PW-12), we first of all take up the statement of PW-10 who in his examination-in-chief stated that the appellants had covered their faces, this was not his case in Ex.PA/1 wherein he gave features and description of both the appellants and asserted that he could, on appearance, identify them. He has clearly made dishonest concession to the appellants but the defence squanded this manipulated opportunity by confronting the said witness with his previous statement during cross-examination, damage done stands rectified. PWs-11 & 12 are public witnesses who witnessed the occurrence and subsequently identified both the appellants during identification parade; they have been consistent, straightforward and steadfast. They returned unscathed from the witness box after facing grueling cross-examination. Even if we exclude the statement of Abdul Razzaq, testimony of PWs 11 & 12 provides strong evidential foundations to sustain the charge. We feel no hesitation in placing implicit reliance on the evidence of these two witnesses. Four casings of 30-Caliber secured from the spot were dispatched to Forensic Science Laboratory (Ex.PT) on 14.04.2011 which were found wedded with the pistol recovered at the instance of Muhammad Rafique appellant and sent for comparison on 13.06.2011.
There were found entry wounds noticed by the Medical Officer Dr.Syed Nadeem Ahsan (PW-5) on the dead bodies of the deceased. This evidence squarely frames Muhammad Rafique appellant with the responsibility of committing qatl-e-amd of the deceased. For the foregoing reasons, Crl.Appeal No, 708 of 2012-ATA to the extent of Muhammad Rafique-appellant is dismissed; conviction and sentences awarded to him on all counts are upheld and death sentence awarded to him on both counts is CONFIRMED. Forensic Science Laboratory report Ex.PT shows that it was a one man show, all the 4 entry wounds were caused by bullets fired from Pistol (P-12) recovered at the instance of Muhammad Rafique appellant. On prosecution's own showing the appellant confronted the patrolling party all of a sudden and their subsequent hot pursuit resulted into the occurrence. In this backdrop, in the absence of any positive proof that Muhammad Iqbal-appellant was in the community of intention with Muhammad Rafique appellant, in a situation which evolved without anticipation, while extending him benefit of doubt, we acquit Muhammad Iqbal from the charges; he shall be released forthwith, if not required in any other case. Capital Sentence Reference is answered in POSITIVE qua Muhammad Rafique appellant. Death sentence on both counts awarded to him is CONFIRMED.