' SHAKEEL AHMED BALOCH, J.---This Criminal Appeal No,352 of 2013 is directed against the judgment dated 29th November 2013 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge Anti Terrorism Khuzdar (hereinafter referred as, "the trial Court"), whereby the appellants Sohail Haider son of Ghulam Haider and Muhammad Hanif son of Murad Bakhsh were convicted under section 302(b) (liable to Tazir)/34 P.P.C. R/W section 7 of ATA and sentenced to suffer life imprisonment each with fine of Rs,200,000 each as compensation to be paid to the legal heirs of deceased Abdul Malik and in default thereof to further suffer one (01) year's S.I.; they were also convicted under section 337-F(i)/34 P.P.C. R/W section 7 ATA and sentenced to suffer ten (10) years R.I. Each and to pay Rs,20,000 each as Daman to the complainant Lal Khan. Benefit of section 382-B, Cr.P.C. Was also extended in their favor.
2. Facts of the prosecution case are that on 30th October, 2012 the complainant Lal Khan son of Noor Ayub lodged F.I.R. No,262 of 2012 at Police Station City Hub under sections 320, 324, 387, 34, P.P.C. R/W section 7 of ATA, 1997, stating therein that he works at the Petrol Pump of Dr. Ashok Kumar as Cashier and on the day of occurrence at about 10.45 a.m. He along with security guards namely Abdul Malik and Dadan were present on duty, when two persons came there in a Potohar Jeep vehicle and refilled an empty cane of petrol of 30 liters and 28 liters in the fuel tank of their vehicle, but did not pay the charges of petrol amounting to Rs,5892, when the workers of the petrol pump demanded payment of money, they inquired about the owner of the petrol pump and his cell number and seated in the seat and started to move the Jeep ahead. The security guard Abdul Malik came at the front of Jeep, but the accused/driver of the Jeep made firing upon him with pistol, whereas in retaliation the second security guard Dadan made aerial firing, then the second accused seated on the rare seat made firing with a rifle 12 bore. Resultantly, the complainant received bullet injuries and the security guard Abdul Malik died at the spot and both the accused fled towards Uthal side.
3. In pursuance of above F.I.R., the investigation was entrusted to P.W.8 Ghulam Rasool S.I./1.O., who during investigation visited the place of occurrence; prepared site map; took into possession the blood stained mud of deceased; recorded the statements of eyewitnesses and inquired about the description of accused persons; prepared the inquest report; took the blood stained shirt of deceased Abdul Malik into possession; arrested the appellants and conducted the investigation; during investigation their identification parade was conducted; crime weapons i,e, pistol and shotgun were taken into possession and separate F.I.Rs, were registered against them under Section 13-E of Arms Ordinance; obtained FSL report and on completion of investigation submitted the challan to the trial Court.
4. At the trial, the prosecution produced eight witnesses. The appellants were examined under section 342, Cr.P.C. They also recorded their statements on oath under section 340(2), Cr.P.C., but did not produce any witness in their defence. On conclusion of trial and hearing arguments, the learned trial Court awarded conviction to the appellants as mentioned above in Para No, 1 .
Whereafter, instant appeal was preferred.
5. Learned counsel for the appellants contended that the impugned judgment is result of misreading, non-reading and misappreciation of evidence available on record; that only interested witnesses were produced and the case of prosecution is lacking independent corroboration; that the case does not fall within the purview of Anti-Terrorism Act, 1997 and trial by Anti-Terrorism Court was not competent; that the alleged identification parade of the appellants was not conducted in accordance with settled principles of law; that the prosecution has failed to establish the case against the appellants beyond any shadow of reasonable doubt; that the disclosure memos of the appellants recorded in custody are also not admissible piece of evidence.
6. Learned Special Prosecutor ATA while supporting the conviction stated that sufficient incriminatory evidence is available on record to connect the appellants with the commission of offence; that the appellants were arrested soon after the incident and were identified during identification parade coupled with the fact that on the disclosure of the appellants, the recovery of crime weapons was effected on their pointation; that the appellants have failed to bring on record any evidence in defence with regard to their false implication by the prosecution; that the conviction so awarded to the appellants by the learned trial Court is based on proper appraisal of material available on record.
7. Heard the learned counsel and perused the available record. As per case of the prosecution on the date of occurrence at about 10.45 a.m. The complainant/eyewitness Lal Khan alongwith security guards Abdul Malik and Dadan were present on duty at the petrol pump of Dr. Ashok Kumar; that the appellants after filling petrol in the fuel tank of Potohar Jeep and refilling the empty Cane instead of making payment fired upon the workers of the petrol pump, which resulted into murder of security guard Abdul Malik and injuries to Lal Khan. The appellants were arrested on the following day of occurrence and on their pointation the recovery of crime weapons as well as jeep was effected. The appellants have also not disputed their arrival at the petrol pump on the day of occurrence and also admitted the fact that they filled the fuel tank of the vehicle and a plastic cane with petrol, but the employees of the petrol pump demanded more amount than the actual one. However, they denied the allegations of making firing upon the deceased guard Abdul Malik as well as injuring the complainant Lal Khan rather they have taken the plea that the second security guard namely Dadan made firing, which resulted into death of the guard Abdul Malik.
8. It has come on record that three persons made firing at the time of occurrence i,e, both the appellants and the security guard Dad Karim alias Dadan (P.W.3). It has further come on record that the appellant Sohail Haider was having a T.T. Pistol, whereas the co-accused Muhammad Hanif was having a shotgun, whereas P.W.3 was having a repeater. In normal circumstances, the nature of injuries sustained by a shotgun or repeater have small entrance wounds injuries as it is being sustained from a small round ball ( ex;) {{URDU TEXT}} whereas the nature of injury sustained by a pistol are absolutely different having large size of entrance wound and the injuries go to the depth. It is alleged that the deceased received injuries due to firing made by the appellant Sohail Haider, who was having a pistol, whereas the complainant received small wounds, who was injured due to firing made by the appellant Muhammad Hanif having a shotgun. The medical certificate Ex.P/6-A of deceased Abdul Malik issued by P.W.6 Dr. Farrukh Naik Akhtar, Medical Officer, mentions the following injures on the person of deceased:
(1) Entrance wound 5 inches medial to left nipple.
(2) Exit wound is not present.
(3) Entrance wound on dorsal portion of thumb left hand.
(4) Exit wound on palmer surface of left hand.
' Whereas, following injuries were observed by P.W.6 on the person of complainant Lal Khan:--
(1) Five small wounds on right leg.
(2) Two small wounds on right thigh.
(3) Two small wounds on right foot.
(4) Small wound on left lower leg.
(5) Two small wounds on left foot.
' Comparison of both the injuries sustained by the deceased Abdul Malik and injured. Lal Khan reflects that the complainant received small wound injuries as he was hit with shotgun by appellant Muhammad Hanif, whereas the nature of injuries received by the deceased Abdul Malik are absolutely of different nature sustained due to firing made by appellant Sohail Haider with pistol. Hence, the defence plea so taken by the appellants that the deceased Abdul Malik was murdered due to firing of P.W.3 having repeater in his hand, has absolutely no force and it has been established on record beyond any shadow of reasonable doubt that the appellant Sohail Haider and Muhammad Hanif while sharing common intention made firing upon the deceased Abdul Malik and Lal Khan, which resulted into death of Abdul Malik and injuries to Lal Khan.
9. The perusal of statements of prosecution witnesses disclose that all the witnesses are firm in their deposition. P.W.1 is the complainant of the case, who fully reiterated the contents of Fard-e- bayan Ex P/1-A and the F. I. R. P. W .1 accurately stated the date, time and the manner of occurrence.
P.W.1 identified both the appellants in the Court being the assailants, who with their common intention committed murder of guard Abdul Malik and caused injuries to him. P.W.-1 correctly ascribed the role played by both the appellants at the time of occurrence. The complainant also stated the motive behind the occurrence. P.W.3 Dad Karim alias Dadan is the second security guard and the eye-witness of the crime. P.W.3 recorded statement in line with the statement of P.W.1. He corroborated the statement of P.W.1 on all counts. P.W.3 correctly identified both the appellants in Court to be the assailants, who had committed the murder of deceased Abdul Malik and injured the complainant Lal Khan. Although, the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses but in our opinion, those are not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the appellants.
10. Now diverting to the admissibility of the disclosure memos and recoveries of crime weapon effected on the pointation of the appellant, suffice to state here that P.W.4 Abdul Khaliq S.I. Is the witness of disclosure memos of appellants Ex.P/4-E and Ex.P/4-F and recovery memos of pistol and Shotgun Ex.P/4-G & H. The disclosure memos of the appellants led to discovery of new facts and recovery of crime weapons on the pointation of the appellants, as such, they are admissible pieces of evidence within the meaning of section 40 of the Qanun-e-Shahadat Order, 1984. Reliance in this regard is placed on the case of Fazal Akbar and another v. The State, 2013 PCr.LJ 369. Relevant portion thereof is reproduced below:-- "The contention of learned counsel for the appellant that the case of the appellants does not fall under Article 40 of the Qanun-e-Shahadat Order, 1984 has also no force because the discovery of any fact on the information of the accused in custody of police is admissible under Article 40 of the Order, ibid. Although, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt - from any other source and that the knowledge of the fact was first derived from -the information given by the accused but in the instant case, the police was having no previous knowledge of the weapons and when the appellants disclosed such fact, P. W.1 in presence of marginal witnesses, discovered the above referred weapons and the police was having no previous knowledge of it, so, the information of the appellants fully comes within the scope of Article 40 of the order."
11. According to the fire arm expert report Ex.P/8-H both the recovered arms are in working condition.
12. As far as the jurisdiction of the learned trial Court is concerned, the learned trial Court has rightly taken the cognizance of offence, as committing murder of a person in day light and injuring another by making firing are the reasons that had created sense of fear and insecurity amongst the people at large as the alleged offence was committed in a barbaric and gruesome manner.
Furthermore, record reflects that during trial the appellants filed application for transfer of case to any other ordinary Court having jurisdiction in the matter, but that application was rejected by the learned trial Court as is evident from the order sheet dated 12th November, 2013 and that order has attained finality as the appellant did not assail the same before the higher forum, thus the point of jurisdiction at this stage cannot be agitated.
13. We have also minutely analyzed the defence plea taken by the appellants and observed that the appellants have absolutely failed to prove the same. The appellants have failed to produce any single witness in support of their plea. Mere bald words of the appellants are not enough to disbelieve and discredit the confidence inspiring evidence of the prosecution witnesses, who have not been shaken. The trial Court after proper appraisal of evidence available on record has rightly awarded conviction to the appellants. It has been established through independent, corroborative and medical evidence that the prosecution has successfully proved the charge against the appellants beyond any shadow of doubt and the appellants have failed to point out any mala fide on the part of the prosecution for their false implication rather they have admitted the occurrence.
The appellants could not point out any material contradiction and discrepancy which could benefit the defence. The appellants also could not point out, any error of law, misreading or non-reading of evidence by the trial Court calling for interference by this Court.
For the above reasons, the appeal being devoid of merits is dismissed accordingly.