WIQAR AHMAD J:- Appellant namely Nazr-ul -Islam is aggrieved of judgment dated 29.11.2019 of the Court of learned Sessions Judge Shangla, Camp Court at Swat, whereby he was convicted and sentenced as follows; U/S 302 (b) PPC to death on two counts as Tazir. He was ordered to be hanged by the neck till he is found dead. Appellant was also ordered to pay compensation of Rs. 300,000/- (three hundred thousand) under section 544-A Cr.P.C, payable to legal heirs of both the deceased. The compensation was ordered to be recoverable as arrears of land revenue. In default of payment of compensation, he was ordered to further undergo six months simple imprisonment.
U/S 13 A.O. to three years simple imprisonment.
All the sentences were ordered to run concurrently .
Appellant was also extended benefit of section 382-B Cr .P.C.
2. FIR No. 71 (Ex. PA) dated 15.06.2010 under sections 302, 353 PPC (read with section 13 A.0.) was registered at Police Station Martung District Shangla on the basis of Murasila' (Ex. PA/1) sent by, Feroz Khan Sub Inspector from the spot to police station. Report of the occurrence was lodged by constable namely Umar Daraz (belt No. 2941FC) of police station Martung, who has stated therein that he along with other members of the police party headed by SHO namely Noor Muhammad Khan had gone to village Dedal on 14.06.2010 for the purpose of arrest of proclaimed offenders, while members of special police force had also been called to village Dedal from the police station, which included Nazr-ul-Islam belt No. 698/SPF (appellant), constable Hussain Bacha No. 686/SPF , constable Izzat Khan No. 689/SPF and constable Adam Khan No. 661/SPF . The appellant was further stated to have been aggrieved of his transfer from the main police station to the new assignment. Complainant stated in his report that on the day of occurrence he along with constable Muhammad Farooq, Noor Muhammad Khan SHO, Akbar Khan ASI, Madad Muharir Fawad Ali were present in the company of Masood, Zahideen and Namroz etc in the courtyard of Hujra of Gul Saeed Shah . The appellant namely Nazr-ul-Islam was alleged to have come in police uniform duly armed with an official weapon i.e. Kalashnikov . While the other constable namely Hassan Bacha also entered the Hujra but he was unarmed and in civil clothes. SHO Noor Muhammad Khan directed Fawad Ali Madad Muharir to entrust weapons to the constables. In the meanwhile, appellant starte d firing at Akbar Khan ASI and Noor Muhammad Khan SHO with his official Kalashnikov with the intention of killing them. Both the SHO and Akbar Khan ASI received fire shots and died at the spot. The complainant along with other policeman and people present at the spot overpowered the appellant, snatched his Kalashnikov and from his body search recovered a 30 bore pistol along with six live rounds. The appe llant was statedly locked in a nearby room. The occurrence was claimed to have been witnessed by remaining members of the police party and other people present in the Hujra. Motive for the occurrence was stated that the appellant had been annoyed due to his transfer from the main police station to police Garth at Kamach.
3. Accused who had been captured immediately after the occurrence was forma lly arrested by the Investigating Officer vide card of arrest memo Ex. PW-10/1 dated 15.06.2010. The weapon of offence i.e. Kalashnikov No. 4607614 earlier recovered from accused was also taken in custody by Investigating Officer vide recovery memo Ex. PW-9/1 dated 15.06.2010. The Investigating Officer took in possession blood stained earth from places of both the deceased vide recovery memos Ex. PW-8/1 and Ex. PW-8/2 dated 15.06.2010. Twenty-eight (28) crime empties of 7.62 bore were also recovered from the spot vide recovery memo Ex. PW 8/3 dated 15.06.2010. The 30 bore pistol along with 6 live rounds earlier recovered from accused was taken in possession by Investigating Officer vide recovery memo Ex. PW-9/2 dated 15.06.2010. The recovered weapon of offence along with crime empties were also sent to Forensic Science Laboratory (hereinafter referred to as "FSL") for the purpose of obtaining an expert opinion about its matching, wherefrom report Ex. PK was received in af firmative and placed on file.
4. On completion of investigation, complete challan was submitted against appellant before the Court of learned Judge Anti-T errorism Court Malakand at Swat. Charge was framed against him on 11.01.201 1, to which he pleaded "not guilty" and claimed trial. After examining of some of the prosecution witnesses, the learned Judge Anti- Terrorism Court Swat vide his order dated 15.03.2012 ordered deletion of section 7 ATA levied against the appellant and sending of the case to the Court of learned Sessions Judge Shangla for further proceedings. Prosecution thereafter examined 15 witnesses. On conclusion of proceedings in the case, accused was examined under section 342 Cr.P.C. The learned trial Court vide judgment dated 04.12.2013 convic ted the appellant under section 302 PPC and sentenced him to fourteen years rigorous imprisonment on two counts along with fine of Rs.
300,000/- payable to legal heirs of both the deceased, or in default thereof to further undergo two years simple imprisonment on two counts. He was also convicted under section 353 PPC and sentenced to six months simple imprisonment. Accused had also been convicted for three years imprisonment under section 13 A.O. All the sentences were ordered to run concurre ntly and appellant was also extended benefit of section 382-13 Cr.P.C.
Feeling aggrieved from award of lesser sentence to the appellant, one of legal heirs of deceased had filed criminal revision No. 01-M of 2014 before this Court, which had been allowed vide order dated 11.12.2017 and the case remanded back to learned trial Court for deciding it afresh as per spirit of section 367 Cr .P.C.
5. After remand, the learned trial Court upon conclusion of proceedings in the case, had convicted and sentenced the appellant vide judgment dated 14.07.2018 to the following ef fect; U/S 302 (b) PPC to death on two counts along with compensation of Rs. 300,000/- under section 544-A Cr.P.C payable to legal heirs of each deceased, or in default thereof to suffer six months simple imprisonment.
U/S 13 A.O. to three years simple imprisonment. All the sentences were ordered to run concurrently .
The appellant was also extended benefit of section 382-B Cr .P.C.
Feeling aggrieved from his conviction and sentences, the appellant had filed criminal appeal No. 186-M of 2018 before this Court, which had been allowed vide judgment dated 02.09.2019 and the case remitted back to learned trial Court with the direction to re-summon PW Salimullah and to afford ample opportunity to the defence for cross- examining him. Thereafter , accused/app ellant was convicted for commission of the offence vide the impugned judgment dated 29.11.2019 of the Court of learned Sessions Judge Shangla, Camp Court at Swat, as stated earlier .
Appellant challenged his conviction and sentences through the instant appeal before this Court.
6. Learned counsel appearing on behalf of appellant submitted during the course of his arguments that the local police had been statedly informed by the complainant via telephone but the Muharir on duty at police station had not made entry of such phone call regard ing the incident in daily diary . The learned counsel further added that only one independent eyewitness namely Masood Shah had been examined while rest of the PWs had been police officials and interested witnesses. Regarding Masood Shah (PW-8) the learned counsel added that he had not been shown in the site plan and theref ore neither his testimony nor those of the police officials deposing as eyewitnesses in the case had been reliable. The learned counsel also questioned the stay of police officials including the deceased at a private place i.e. Hujra before and at the time of commission of the offence. He also laid stress on the point that the prosecut ion could not prove issuance of official weapon to the appellant and that evidence of PW-6 stating that the appellant had himself taken the weapon from the cupboard at police Gareth in a school at Kamach had not been available. The learned counsel for appellant also contended that after transfer of the case from Anti-T errorism Court charg e had not been framed afresh by the Court of learned Sessions Judge Shangla. He had therefore been pleading that the prosecution had totally failed in proving the case against the appellant beyond reasonable doubt. He also placed reliance on the judgments reported as 2020 SCMR 1049, 2021 SCMR 455, 201 1 PCr .LJ 363, 2020 PCr .LJ Note 13 and 2021 YLR 163 .
7. The learned counsel for complainant submitted in rebuttal that the prosecution had examined four eyewitnesses of the occurrence whose testimony had remained unshaken and consistent during the course of cross-examination.
The learned counsel also added that malafide could neither be attributed to the police officials who had been former colleagues of the appellant nor such a malafide had been existing on part of private prosecution witnesses.
The learned counsel placed reliance on the judgments reported as 1986 SCMR 1027, PLD 2002 Supreme Court 786, 2007 SCMR 641, PLD 2016 Supreme Court 17, 2001 SCMR 387, 2005 YLR 584 (Supreme Court AJ&K), 2016 PCr.LJ 1408 and 2001 PCr.LJ 453. The learned Astt: A.G. appearing on behalf of State also supported the private counsel for complainant and added that prosecution had proved the case against appellant beyond any shadow of doubt and that the offence being committed in a brutal and shocking manner wherein two of the police officers including SHO of the concerned police station had been killed and therefore there was no force in the instant appeal even to the extent of reduction of the sentence.
8. We have heard arguments of learned counsel for parties, learned Astt: A.G appearing on behalf of State and perused the record.
9. To prove case against the appellant prosecution have been relying upon eyewitness account of four witnesses whose statements had been recorded as PW-2, PW-3, PW-5 and PW-8, besides the supporting evidence of PW-6 who had deposed in respect of taking custody of the official Kalashnikov by the appellant as well as other witnesses deposing in respect of lodgin g of report and the steps taken during the course of investigation i.e. recoveries from the spot along with weapon of of fence and its matching FSL reports.
10. Among statements of the PWs, most important is the statement of complainant. namely Umar Daraz (No. 294) recorded as PW-2. In his examination-in-chief this witness has inter-alia stated that he along with other members of the police party headed by SHO namely Noor Muhammad Khan had gone to village Dedal on 14.06.2010 for arrest of proclaimed offenders, while members of the special police force had also been called to village Dedal from police station, which included the appellant. The appellant had not been happy with his new assignment. On the following day when the SHO namely Noor Muhammad Khan had been present along with Akbar Khan ASI and other police constables as well as people named in his statement in the courtyard of Hujra of Gul Saeed Shah, the appellant namely Nazr-ul-Islam while wearing police uniform and duly armed with a Kalashnikov (another constable namely Hassan Badshah was also stated to have entered the Hujra) came to the Hujra, and on noticing them the SHO asked Fawad Ali Madad Muharir (PW-5) to issue them official weapons. In the meanwhile, the appellant started firing at Akbar Khan ASI as well as Noor Muhammad Khan SHO, who received fire shots and died at the spot. In his cross-examination this witness has fully remained consistent on materia l particulars of the case. He had answered all the questions of the defence counsel with eloquence sufficiently explaining every aspect of the case.
He has also stood consistent with other witnesses except minor discrepancy relating to taking of dinner the night before the occurrence at the same Hujra of Gul Saeed Shah or the Hujra of his cousin Ibrahim Shah as disclosed by another witness examined as PW-8. Such a minor discrepancy , and that also relating to dinner taken the previous night, would not reflect adversely on the otherwise consistent and confidence inspiring evidence of this witness. Same was the case with other eyewitness namely constable Muhammad Farooq (belt No. 3006), who was examined as PW-3. He has also given a similar description of the occurrence and stood firm and consistent during the course of his cross-examination. During cross-examination, this witness has claimed that when the appellant along with other police constables had come to the Hujra of Gul Saeed Shah the SHO had directed Fawad Ali Madad Muharir to entrust them official weapons. He stated that though Nazr-ul-Islam appellant have been in police uniform and armed as well but the other police personnel accompanying said Nazr ul-Islam had been unarmed. The argument advanced by learned counsel for the appellant, that had the appellant been possessing weapon at the relevant time then there had been no occasion for the SHO to have ordered the Madad Muharir to hand him over official weapon, is also misplaced for the reason that the SHO had also called other police constables from the police station, as per evidence of the prosecution and all of them had reached the Hujra and all except the appellant had been unarmed, by then. This witness had also remained consistent with rest of oral as well as documentary evidence of prosecution and no major contradiction could be pointed out in his cross-examination.
Another eyewitness namely Fawad Ali (belt No. 292) has been examined as PW-5. He has also given a description of the occurrence similar to the other PWs. In his cross-examination, this witness stated that on entering of the appellant as well as his companions the SHO had directed him to issue them weapons and that he had proceeded to collect his register for the purpose when the accused started firing at both the deceased. He agreed with the suggestion that without permission of SHO of the police station or Muharir no weapon could be given to members of special police force but he explained that he had neither been given the weapon by the SHO nor by Muharir and he might have taken it from police Garth at Kamach. This collection of weapon has further been explained in the statement of PW-6 who had been deputed at a temporary Garth made at a school in Kamach after the insurgency had been quelled in a military operation and the police had been establishing their footprints in the area. This witness had stated that the appellant along with other members of special police force had come to the police Garth where they had taken lunch with him and thereafter the appellant told him that he wanted to pick up a Kalashnikov from cupboard as he had been going to Hujra of Gul Saeed Shah wherein the SHO and other members of the police party had been present. Accordingly , the Kalashnikov had been taken by the appellant from the cupboard and proceeded towards the Hujra along with Fazli Azim and Hassan Badshah constables. In his cross-examination, this witness had stated that the weapon of offence i.e. Kalashnikov had been earlier entered in the name Shahid Iqbal of special police force but added that he had been on leave in those days while the Garth Incharge had been performing his duties at the bank of river. This witness had also been cross-examined at length but nothing beneficial to the case of appellant could be brought out from his mouth. The prosecution have thereby been able to prove how and in what manner the appellant had laid his hands on the Kalashnikov and taken it for commission of the of fence.
11. Another independent eyewitness of the occurrence, who had been inmate of the house and one of owners of the Hujra where the occurrence had taken place, has also been examined as PW-8. This witness namely Masood Shah has given a narration of the occu rrence in his examination-in-chief which had been quite similar to the narration as made in the FIR. This witness had also stood consistent on material particulars of the case. The objection of learned counsel for appellant that this witness had not been shown in the site plan is factually incorrect.
While explaining point No. 6 the Investigating Officer has specifically mentioned that owner of the Hujra namely Masood Shah son of Feroz Shah had been present at point No. 6 and have seen the occurrence with his own eyes. It has also come in the testimony of PW-8 that the police had been staying at their Hujra since the previous day i.e.14.06.2020. It is important to be noted here that the place of occurrence is situated in a far-flung hilly area.
Normally such places do not bear the facilities of official rest houses, hotels or other places for stay and the police normally make stay at the Hujras of notables. There is nothing unnatural in the situation that the police had been staying at a private Hujra for the night. No reason could be solicited at the bar, why testimony of this independent witness i.e. PW -8 be discarded and not relied upon.
12. The eyewitnesses in this case whether police officials or owner of the Hujra (PW-8) where the occurrence had taken place had been absolutely reliable witnesses. They had no axe of their own to be grinded in the matter . No malafide or could be attributed to them. PW-2, PW-3 and PW-5 had been members of the police party and therefore former colleagues of the appellant. We would not subscribe to opinion of learned counsel for appellant where he had challenged credibility of the eyewitnesses on the ground that they had been police officials. PW-2, PW-3 and PW-5 had no doubt been police officials but it is equally important to note that they had been deposing against another police official. They had been on duty on the relevant day for which duties appellant had also been called upon. These witnesses had never remained hostile or inimical to the appellant. They have been natural, independent and trustworthy witnesses , who have offered a credible, reliable and natural account of the occurrence. Why would have they implic ated the appellant solely , in such a serious case and substituted him for the real culprit. No such reason could be advanced even at the bar. Same was the case with statement of PW-8, about whom it had come in the evidence that he had been belonging to a respectable family of the locality . Being a respectable elder of the locality , having no interest of his own to be served in the matter , he could not be expected to deposing falsely . "Ocular evidence may be classified into three categories" as held by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Iabal and others v/s Muha mmad Akram & another" reported as 1996 SCMR 908, "firstly wholly reliable; secondly wholly unreliable and thirdly partly reliable and partly unreliable.
In the first category conviction may safely be sustained on uncorroborated testimony . In the second category even strongest corroborative evidence may not rehabilitate such evidence. In the third category conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct sources". In said case the witnesses were found to have been falling in the first category being absolutely independent witnesses and were relied upon for conviction by holding that conviction could safely be recorded on their statements without further corroboration.
13. Case of the prosecution have not been lacking in corroboratory evidence as well. Statement of the doctor recorded as PW-7 has also been showing that Akbar Khan ASI had received nine firearm injuries while Noor Muhammad Khan SHO had received two injuries. The medico-legal evidence has fully been supporting case of the prosecution. No conflict between the ocular account and medical evidence could be highlighted by learned counsel appearing on behalf of appellant. During the course of investigation the Investigating Officer took in possession the weapon of offence i.e. Kalashnikov after being produced by the complainant before him. PW-1 namely Saleem Ullah constable had also been examined in support of the recovery memo Ex. PW-1/1. The complainant while deposing in Court as PW-2 has also stated that they had overpowered the accused and took from him the Kalashnikov i.e. weapon of offence as well as from his personal search they had also recovered a 30 bore pistol along with 6 live rounds. The other eyewi tness had also supported the complainant in this assertion. The recovery of weapon from possession of the appellant has stood proved which had subsequently been taken in possession by the Investigating Officer vide recovery memo Ex. PW-9/1. Twenty-eight crime empties of 7.62 bore had been recovered by Investigating Officer from the spot of occurrence vide recovery memo Ex. PW-8/3. The weapon of offence and crime empties had been sent to FSL for the purpose of obtaining an expert opinion about its matching, report (Ex-PK) received therefrom reveals that all the empties had been fired from the SMG rifle No. 4607614 (recovered from the appellant). These corroboratory pieces of evidence have also been going in synchronization with case of the prosecution.
14. Arrest of the appellant at the spot immediately after the occurrence has also stood fully proved as a result of testimony of the eyewitnesses mentioning his overpowering and locking in a room . He was subsequently formally arrested by the Investigating Officer vide card of arrest issued on 15.06.2010 and produced in evidence as Ex. PW- 10/1.
15. One of the objections of learned counsel for appellant related to the fact that charge had not been framed 'afresh after the case had been transferred by Anti-T errorism Court Malakand at Swat to the Court of learned Sessions Judge Shangla on 15.03.2012. Section 23 of the Anti-T errorism Act, 1997 has provided that after taking cognizance of an offence, if an Anti-T errorism Court is of the opinion that the offence is not a schedule offence, it shall, notwithstanding that it had no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code, and the Court to which the case was transferred might proceed with trial of the offence as it had taken cognizance of the offence. The transferee Court, in the case in hand has proceeded from the stage at which the trial had been transferred to it. The appellant had sufficient knowledge of the allegations under which he had been facing trial as charge had earlier been framed and notic ed to him by the Anti-T errorism Court prior to transfer of the case and three witnesses had also been examined in the Anti-T errorism Court, which witnesses had subsequently been cross-examined by counsel for the appellant in the Court of learned Sessions Judge Shangla, after the case had been remanded back by this Court vide order dated 02.09.2019 passed in criminal appeal No. 186-M of 2018. In that judgment the instant matter had also been discussed and decided in Para 8 thereof, where this Court had finally resolved that non-framing of the subsequent charge by the transferee Court had not been fatal as it had stood protected under section 23 of the Anti-T errorism Act, 1997, beside being curable under section 537 Cr .P.C.
16. Prosecution have also been able to successfully prove the motive, as the eyewitnesses particularly belonging to police besides other police official witnesses, have stated unanimously that the appellant had been feeling aggrieved due to his transfer from the main police station to the police Garth at a school in Kamach. Such a motive had not been seriously questioned by the defence side during the course of cross- examination and it stood proved in circumstances of the case. But even otherwise weakness or absence of motive or failure to prove the same would hardly make any difference in awarding death sentence, as held .by Hon'ble Supreme Court of Pakistan in its judgment rendered in the case of "Waris Khan v/s The State" reported as 2001 SCMR 387, if the prosecution succeeds in proving the case against an accused through credible, unimpeac hable and confidence inspiring evidence.
17. Case of the prosecution stood proved from all angles and there remained no doubt regarding culpability of the appellant. When he was found guilty of commission of the offence (not only by trial Court but by this Court as a result of the reappraisal of evidence), then imposing of the normal penalty of death awarded to the appellant was also found justified in circumstances of the case. Perusal of the medico-legal evidence reveals that one of the deceased i.e. Akbar Khan ASI had received nine firearm injuries while the SHO namely Noor Muhammad Khan had received two firearm injuries. A total of twenty-eight empties had been recovered by the Investigating Officer from the spot. All this shows that the offence had been committed in a brutal manner. Senior members of law enforcement agency of the local police station, had been done to death in their official uniform, by none else but their own subordinate who had just been called for duty at a different place of posting. The offence had also been perpetrated by the appellant while being clad in police uniform and armed with an official rifle. Weapons are entrusted to police personnel for protectio n of the citizens rather than killing them. Reliance in this respect may be placed on the judgment of Hon'ble Supreme Court of Pakistan given in the case of "Malik Muhammad Qadri v/s The State & others" reported as PLD 2016 Supreme Court 17. No mitigating circumstance or reason for reduction of sentence could be found in the case in hand.
18. In light of what has been discussed above, we have come to the conclusion that the instant appeal has been possessing no merits and same is accordingly dismissed. Murder Reference No. 19-M of 2019 is also answered in affirmative.