' JUSTICE AJMAL MIAN (CHAIRMAN).---This is an appeal under section 13(1) of the Special Courts for Speedy Trials Ordinance, 1991, hereinafter referred to as the Ordinance, against the judgment dated 6-10-1991 passed by the learned Judge, Special Court for Speedy Trials-II, Lahore, convicting and awarding the following sentences to the present four appellants:--
(i) under section 148, P.P.C. To undergo R.I. For three years each;
(ii) under section 307/149, P.P.C. To undergo R.I. For ten years and a fine of Rs,10,000 each or, in default in payment of fine, to undergo further R.I. For one year;
(iii) under section 353/149, P.P.C. To undergo R.I. For two years each; and
(iv) under section 302/149, P.P.C. To undergo imprisonment for life and a fine of Rs,10,000 each or in default in payment of fine, to undergo further R.I. For one year.
' The above sentences were ordered to run concurrently.
2. The brief acts are that on 12-10-1989 at about 4-25 p.m. a wireless message was received by the Police Station Shorkot City to the effect that five persons armed with Kalashinkovs had committed a dacoity of a car from District Khanewal and that they were heading towards Shorkot in two cars.
The above message was transmitted to P.W.2 Ameer Amanullah Khan, D.S.P. Thereupon, he reached the Police Station Shorkot City; and organised a police party headed by iim, which included P.W.4 Inspector Saifullah, P.W.5 Muhammad Siddi4, Sub-Inspector, Police Station, Shorkot City, AS.I. Muhammad Sharif, some more A.S.Is, Head Constables and Constables. The police party held Nakabandi at Teen Pulli situated within the limits of Police Station Shorkot qty. After some time, two cars came on the bank of watercourse. The occupants of the same, after noticing the police party, stopped the cars at a distance of about 25 Karams and got down. They were armed with Kalashnikovs, revolvers and carbines. They started firing at the -police party. In retaliation, the D.S.P.
Ordered the return fire. Thereupon, the accused retreated and proceeded towards Dera of Allah Ditta, which was situated in the area of village Bhungu. Cross-firing continued. The accused, on reaching the Dera, took shelter against Khal and fired more shots at the police party. However, they were encircled from all sides by the police party. There were certain persons present near the Dera of Allah Ditta, one of them was Ghulam Shabbir Who signalled the police party about the presence of the accused. Thereupon, the accused fired at him, resulting into his death. The accused entered into the Dera of Allah Ditta and took position in a room, which had no shutters. P.W.2 Ameer Amanullah Khan, D.S.P. Asked the accused to surrender, but they did not respond to the same.
Thereupon, the above P.W. Directed the police party to set the room on fire where the accused had taken shelter. When the above room was put on fire, one of the accused Muzaffari came out of that room and was hit by the shots fired by the police party, resulting into his death. After that, the other accused offered to surrender provided, P.W.2 Ameer Amanullah Khan assured them on Holy Qur'an that no harm would be caused to them. Upon receiving such an assurance, the remaining four accused came out of the room one by one with their weapons and surrendered themselves with the weapons. Accused Muhammad Yousaf produced Kalashnikov (Exh.P/1) which contained five bullets (Exh.P.2/1-5), accused Sanaullah produced stengun (Exh.P.6) and magazine containing four live catridges (Exh.P.7/1-4), accused Muhammad Sharif produced revolver (Exh.P.3) which contained four live cartridges (Exh.P.5/1-4) and two fired cartridges (Exh.P.4/1-2), and accused Tayub Asghar produced carbine (Exh.P.8) and two cartridges (Exh.P.9/1-2). The above weapons were taken into possession and were sealed in separate parcels. A Kalashnikov was also secured under the arm of dead body of Muzaffari (Exh.P.10) containing seven bullets (Ex.P.11/1-7), which were also sealed. The two cars bearing No,MNJ-1411 and No,LHV-4979 were also secured under memo.
(Exh.P.N). The above cars and the investigation was handed over to P.W.4 Saifullah, who prepared the inquest reports of Ghulam Shabbir (Exh.P.L.) and Muzaffari (Exh.P.M.). He also prepared statements of injuries of the above two deceased under Exhs.P.N. And P.Q., respectively. He sent the dead bodies for post-mortem. He procured the blood-stained earth from the two places where the dead bodies of the above two deceased were lying. He also took into possession 36 empties of Kalashnikovs from the spot (Exh.P.12/1-36) under memo. (Exh.P.T.) on the night between 12/13-10- 1989. He further took into possession 14 empties of Kalashnikovs (Exh.P.13/1-14) near the date trees under memo. (Exh.P.U.). He also took into possession 10 empties of Kalashnikovs (Exh.P.14/1-10) from near the Khal under memo. (Exh.P.V.). The police party fired 106 cartridges which were taken into possession under various memos. Namely, Exhs. P.BB, P.CC, P.DD, P.EE, P.FF, P.GG, P.HH, P.JJ, P.KK, P.LL, P.MM and P.NN. He also prepared rough plan of the place of Nakabandi (Exh.P.AA). He further took into possession the blood-stained clothes of the two deceased under various memos.
3. Dr. Muhammad Mumtaz conducted the post-mortem on the dead body of Ghulam Shabbir on 13-10-1989 and found a fire-arm wound of injury on the right of neck and right collar bone fractured. Edges of the wounds were inverted. The wounds were through and through containing blackening around them. He also found wound of exit on the left side of the front neck, the edges of which were also inverted. He opined that the injury was caused by a fire-arm and the death was due, to shock and haemorrhage on account of injury No,1, which was sufficient to cause death in the ordinary course of nature.
4. He also conducted autopsy on the dead body of Muzaffari and found a fire-arm wound of injury with margin inverted on the front of right side of chest. Beneath this injury, pleurae was injured.
Right lung was injured. Peritoneum was injured, liver of the right side and right kidney were injured.
He also recovered a bullet from right kidney and some metallic pieces from abdominal cavity. He opined that the death was due to shock and fire-arm injury to the vital organs like lungs, liver and right kidney, which was sufficient to cause death in the ordinary course of nature.
5. Upon the completion of the investigation, incomplete challan was submitted to the Court of the Sessions Judge, Jhang, who assigned the same to an Additional Sessions Judge, who reported to the Sessions Judge on 27-7-1991 that the case was triable by the Special Court for Suppression of Terrorist Activities. Thereupon, the learned Sessions Judge ordered the Additional Sessions Judge to act in accordance with law. Thereupon, on 1-9-1991 the Deputy District Attorney submitted the case papers before the Punjab Special Court (S.T.A.), Faisalabad Division, alongwith two connected cases. It seems that the case was then transferred to the learned Judge, Special Court for ' Speedy Trials-II, Lahore upon whose direction a complete challan was filed on 18-9-1991.
6. The prosecution, in support of the case, examined nine witnesses, namely, P.W.1 Dr. Muhammad Mumtaz, who carried the post-mortem on the dead bodies of the two deceased, P.W.2 Ameer Amanullah Khan, D.S.P., P.W.3 Munawwar Hussain, Patwari, who prepared a site plan on 21-10-1989 (Exh.P.K.) and site plans on 24-10-1989 (Exhs.P.K/1, P.K/2, and .P.K/3), P.W.4 Saifullah, Inspector,' who investigated the case till the evening of 13-10-1989 and who produced the above memos. Of various items, P.W.5 Muhammad Siddiq, Sub-Inspector, P.W.6 Umar Hayat, Constable No.304, who carried the dead bodies of the two deceased and handed over the same to P.W.1 Dr. Muhammad Mumtaz for post-mortem, P.W.7 Noor Muhammad, Constable, who delivered the two sealed parcels containing blood-stained earth in the office of Chemical Examiner on 26-10-1989, P.W.8 Nano son of Karamat Ali, one of the Mashirs to some of the memos, P.W.9 Basharat Ali, A.S.I., who upon receipt of a complaint (Exh.P.J.) on 12-10-1989 from P.W.2 Ameer Amanullah Khan, D.S.P. At Police Station Shorkot City, recorded the formal F.I.R. (Exh.P.J./1) and produced the same.
7. The accused in their statements under section 342, Cr.P.C., denied the factum of having committed the offence. The accused Muhammad Yousuf stated that he had enmity with Muhammad Shafi, M.N.A. Sialkot, and because of that he was involved falsely in the case. Accused Muhammad Sharif stated that he voted against Muhammad Shall, M.N.A. Sialkot, in elections of 1985. Somebody had killed his brother-in-law. He and his brother due to enmity were falsely involved but were acquitted. Whereas, accused Sanaullah stated that he was going to his friend Zulfiqar in District Jhang and the police party arrested him at the Nakabandi. Accused Tayub Asghar stated that he was going to meet his friend Tariq in Pir Mahal, District Toba Tek Singh. He was arrested at the Bus Stand Shorkot on 10-10-1989 under suspicion of theft case. He further stated that he was kept in police station for three days. The police demanded illegal gratification.
He asked the police to send for his relatives, but he was sent after ten days to Jail where he discovered that he was involved in the above false case.
8. The learned Special Court, after hearing the arguments of the learned counsel for the State and the accused, recorded the convictions and awarded sentences as above. Thereupon, the present appeal was filed.
9. In support of the above appeal, Mian Abdur Rashid, learned counsel for the appellants, has urged that the learned Judge, Special Court was not competent to take cognizance of the above offence as no Notification under section 5 of the Ordinance has been produced by the prosecution.
However, he candidly conceded that this point was not agitated by the appellants before the learned Judge, Special Court nor any such plea has been raised in the memo. Of appeal before this Court.
10. In our view, it would not be proper to allow the appellants to raise the above plea during the arguments of the above appeal, as if the above plea would have been raised before the learned Judge, Special Court or even in the memo. Of appeal, the State would have notice to meet the above argument. In the absence of any such plea, the presumption is that the learned Judge, Special Court has taken cognizance of the case competently.
11. As regards the merits of the case, he was unable to demonstrate that the finding recorded by the learned Judge, Special Court as to the guilt of the accused or the convictions and sentences, suffers from any legal infirmity. The receipt of the wireless message about the above offence remains unrebutted, so also the factum that P.W.2 Ameer Amanullah Khan, D.S.P. Organised a police party and held Nakabandi at Teen Pulli. There was police encounter, cross-firing between the police and the accused, resulting into two deaths in the manner referred to hereinabove.
However, it was urged by Mian Abdur Rashid that the deceased Shabbir was in fact .Killed by the police firing. The above averment is belied by the site plans Exh.P.K., Exh.P.K/1, Exh.P.K./2 and Exh.P.K./3 prepared by P.W.3 Munawwar Hussain Patwari.
12. Then it was urged by him that the recovered fire-arms and empties were not sent to the Chemical Examiner. This is true and because of that, the learned Judge, Special Court has discarded the above evidence. But this does not affect the merits of the case as it has been rightly held by the learned Judge, Special Court that the police personnel, who appeared as witnesses in the above case, were disinterested witnesses fiaving no motive to implicate the appellants falsely and, therefore, their testimony can be relied upon for recording conviction without any corroboration. There seems to be no material contradiction in the testimony of the above P.Ws. The appellants were arrested with the stolen car at the Nakabandi in the circumstances mentioned hereinabove. No concrete material has been brought on record either through the cross- examination of the prosecution witnesses or through some defence evidence to cast doubt on the prosecution version.
13. We are inclined to hold that the learned Judge has properly appraised the evidence and has rightly drawn inferences therefrom. There seems to be no infirmity in the judgment under appeal as to warrant interference by this Court. The appeal is, therefore, dismissed. However, the appellants shall be entitled to the benefit under section 382-B, Cr.P.C.