' MUHAMMAD RAFIQ TARAR, J.---The above two inter-connected appeals are being disposed of through this judgment Criminal Appeal No,115 of 1993 is directed against the judgment of a learned Division Bench of the Lahore High Court dated 13-10-1992 whereby his conviction under sections 302 and 307 of the P.P.C. Was maintained but his death sentence under section 302 of the P.P.C.
Was altered to imprisonment for life, fine was reduced from Rs,50,000 to Rs,20,000 and with this modification his appeal was dismissed. Criminal Appeal No,116 of 1993 calls in question the judgment of the Lahore High Court of even date whereby conviction of the appellant under section 13 of the West Pakistan Arms Ordinance, 1965 was upheld but his sentence of five years' R.I. Was reduced to the term of imprisonment already undergone by him maintaining the sentence of fine.
2. The brief facts of the prosecution case are that on 14-11-1989 at about 11-00 p.m. Manzoor Ahmed complainant of case F.I.R. No,199 of 1989 under section 302, P.P.C. Police Station, Manga. Mandi, informed Miran Bakhsh S.H.O. Of the said Police Station that Liaqat Ali (appellant herein) and Muhammad Ishaque both proclaimed offenders in the said murder case were present in village Talab Sarai and were likely to be arrested if a raid was conducted. He also gave same information to Muhammad Aslam, D.S.P. Consequently a raiding party comprising aforesaid police officers, Khadim Hussain A.S.I., Muhammad Mansha F.C. (deceased) and others including two persons from the public namely Muhammad Nazir and Muhammad Hanif was constituted. The members of the raiding party went to village Talab Sarai where it transpired that the absconders in the murder case had gone to the house of one Muhammad Hasan, brother-in-law of Ishaque accused aforesaid, in village Rosa. The raiding party then started for village Rosa and reached there sometime after mid-night. All the members of the raiding party except two persons from the public were armed with official weapons. They surrounded the house of Muhammad Hasan, gave a call to the absconders to come out and surrender upon which Liaqat Ali accused/appellant armed with Kalashnikov and acquitted accused Ishaque armed with .12 bore gun started firing towards the police party through the window of the room of the house of aforesaid Muhammad Hasan. The police party fired at them in exercise of the right of self-defence. As a result of firing by Liaqat Ali accused/appellant A.S.I. Khadim Hussain, Foot Constables Muhammad Ali and Muhammad Mansha (deceased) received injuries. Both the accused came out of the room and started running with their weapons. A.S.I. Khadim Hussain and Nasim FC overpowered Liaqat Ali alongwith the Kalashnikov. Ishaque accused, however, decamped. The injured police officials were immediately shifted to Service Hospital, Lahore where Muhammad Mansha, F.C. Later on expired. Miran Bakhsh S.H.O. Drafted the complaint Exh.PA and sent it to Police Station Rai Wind where a case under sections 332, 353 and 307/34, P.P.C. Was registered at 12-45 a.m. On 15-11-1989. On the death of Muhammad Mansha F.C. Section 302, P.P.C. Was later on added. Half an hour after the occurrence Masood Tariq, S.H.O., Sadar Rai Wind arrived at the spot and Miran Bakhsh S.H.O., Police Station Manga Mandi produced Liaqat Ali appellant before him who formally arrested him. The S.H.O. Police Station, Sadar Rai Wind also took into possession Kalashnikov Exh. P1 alongwith two magazines Exh.P2/1-2, 21 live bullets of Kalashnikov Exh. P3/1-21 and 10 empties Exh.P4/1-10 vide memo. Exh. PB.
These were earlier recovered from Liaqat Ali accused and were produced before him by Miran Bakhsh S.H.O., Police Station Manga Mandi. The Kalashnikov was sealed into a parcel. The S.H.O.
Sadar Rai Wind took blood-stained earth into his possession from the spot and made it into a sealed parcel vide memo. Exh. PE. Then he left for Service Hospital where he prepared the inquest report of Muhammad Mansha deceased and despatched the dead body for post-mortem examination. After obtaining the opinion of the doctor regarding fitness of Khadim Hussain and Muhammad Ali to make statements he recorded their statements in the Hospital. On 24-11-1989 Muhammad Ishaque accused (since acquitted) was produced by his brother Dost Muhammad before him and he arrested him. At the time of arrest Muhammad Ishaque produced .12 bore gun P9 which was taken into possession vide memo. Exh.PF. After the usual investigation both the accused were challaned.
3. On 15-11-1989 at 11-15 a.m. Dr. Mudassar Hussain of King Edward Medical College, Lahore conducted the autopsy on the dead body of Muhammad Mansha deceased and found a fire-arm wound of entry .7 x .7 cm circular in shape, 9 cm to left of mid iine and 6.5 cm above the left nipple with an exit wound 2 c.m. x 1 c.m. On the back of left chest 9.5 c.m. To the left mid line at its back 16.5 cm below the top of left shoulder. The injury was sufficient to cause death in the ordinary course of nature.
' F.C. Muhammad Ali and A.S.I. Khadim Hussain were also examined on the same day. Their medico-legal reports Exhs.PL and PR respectively are on the record.
4. On the same day Dr. Ghulam Sabir Sabri, Medical Officer, Rural Health Centre, Kot Redha Kishan, examined Liaqat Ali accused and found a lacerated wound on left middle top of head, multiple bruises on right and left shoulders and back, an abrasion on right knee and a contusion on left thigh, all simple in nature, caused by blunt weapon.
5. In support of its case the prosecution examined 19 witnesses in all and its mainstay was the testimony of Miran Bakhsh, Khadim Hussain, Muhammad Ali, Muhammad Nazir and Muhammad Aslam P.Ws. Who furnished ocular account of the occurrence.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegation against him. However, he admitted that he alongwith co-accused Ishaque was wanted in case F.I.R. No, 199 of 1989 but added that Muhammad Aslam D.S.P. Was not he investigator of that case. When asked to explain his injuries he stated that he would explain the same "in the following question". The next question was why this case to which he replied as under "I was wanted by the police alongwith lshaq accused in murder case registered vide F.I.R. No,199/89 of P.S. Manga. I was not present in the Haveli of Hassan and was not present at a place where occurrence is alleged to have taken place. In fact the occurrence did not take place in the Haveli of Hassan. In fact I was produced before the police in case F.I.R. No, 199/89 on 14-11-1989 by my relatives at P.S., Manga Mandi (Lahore). Being already present with the police as an accused in case F.I.R. No,199/89, the police falsely implicated me in this case maliciously."
' He declined to make any statement on oath under section 340(2) of the Cr.P.C. And produced Islam Din, Head Constable. Police Station, Managa Mandi in defence who appeared with the Roznamcha dated 14-11-1989 and 15-11-1989 of Police Station, Manga Mandi and stated that Report No,29 dated 14-11-1989 showed the arrival and departure of Ch. Muhammad Aslam, D.S.P. This report was in the handwriting of the Moharrar of the Police Station and was not signed by Muhammad Aslam, D.S.P. He further stated that according to entry No,9 dated 15-11-1989 Miran Bahhsh S.H.O. Arrived at the Police Station at 6-00 p.m. This entry was in the handwriting of said S.H.O. And it also contained the time of departure of D.S.P. Muhammad Aslam.
7. In this case leave to appeal was granted to consider the following submissions:-- "(a) that the learned Judges have not taken into consideration well-established principles of safe administration and dispensation of criminal justice;
(b) that the Ballistic Expert had opined that no fouling was found in the kalashnikov recovered from the petitioner, but the learned Judges relied more on the ocular testimony of police officials or interested witnesses without giving any importance to the expert's opinion; and
(c) that in the facts and circumstances of the case was brought on record, it was not possible for the prosecution witnesses to have identified the two accused persons, who are alleged to have fired at the police party."
8. The learned counsel reiterated the above submissions before us and further added that the course of bullet from upward to downward indicated that the person who fired at the deceased was on a higher level, therefore, possibility of the deceased having been hit by the fire of Nasim Constable who, according to Miran Bakhsh S.H.O., was on the roof could not be ruled out. It was further submitted that the appellant who was already under arrest in the earlier murder case was falsely implicated to explain the death of the Constable who was, at the fateful moment, on some undesirable duty/mission. Learned State Counsel on the other hand submitted that out of five eye- witnesses, four are police officials/officers having no personal animosity with the appellant, therefore, their evidence strongly supported by apprehension of the appellant at the spot with a kalashnikov and other ammunition, was rightly accepted by the Courts below.
9. We have considered the submissions made at the bar in the light of evidence available on the record. Miran Bakhsh S.H.O. P.W.1, Khadim Hussain A.S.I. P.W.4, Muhammad Ali F.C. P.W.6, Muhammad Nazir P.W.12 and Muhammad Aslam, D.S.P. P.W.14 supported the prosecution version as detailed in the earlier portion of this judgment. Muhammad Nazir P.W. Is a relative of Maqbool deceased of case F.I.R. No,199 of 1989 under section 302, P.P.C. In which the appellant was nominated as one of the accused. If his evidence is excluded from consideration on that score, the remaining evidence on the record furnished by police officials/officers who had no personal vendetta against the appellant can safely be accepted particularly when the statements of aforesaid P.Ws. 4, 6 and 14 regarding apprehension of the appellant at the spot alongwith kalashnikov and other ammunition go almost unchallenged on the record.
' There is nothing on the record to indicate whether level of the room from where the shots were fired was at par with or higher/lower than the place where the deceased was hit and in that view of the matter no arguments could be built on the assumption that the deceased was hit by the fire of Nasim Constable who, according to Miran Bakhsh P.W, was on the roof. There is also no evidence on which roof he was standing and whether like the deceased he was armed with a Danda or had a fire-arm.
' The bald statement of the appellant that he was already in police custody, which on scrutiny has been found false, cannot outweigh the overwhelming prosecution evidence that he was apprehended at the spot when he was trying to run away after having an encounter with the police. In cross-examination a vague suggestion was hurled on Miran Bakhsh that Liaqat All appellant herein was arrested at Talab Sarai which he denied as incorrect. At the same time another suggestion was put to Masood Tariq S.H.O., Police Station Rai Wind that Liaqat Ali who was already under arrest with him, was made a scapegoat in this case. The appellant himself in his examination under section 342 of the Cr.P.C. Took inconsistent pleas. In reply to a question he denied his apprehension "at about the said time, date and place" viz, at 1-00 a.m. After mid-night on 15-11-1990 in the house of Hasan in village Rosa but at the same time admitted that he was arrested by the police "on the said date, time and place" and was having injuries on his person which despite opportunity he never explained how he received. It may be recalled that suggestion put to S.H.O., Police Station, Manga Mandi P.W.1 which he denied was that the appellant was arrested at Talab Sarai but in his statement under section 342 of the Cr.P.C. The appellant averred that his relatives had produced him at Police Station, Manga Mandi. The above discussion leads to the irresistible conclusion that the appellant was arrested at the spot and was not already with the police as contended before us.
' The learned Judges properly considered the Ballistic Expert's opinion about absence of fouling in the kalashnikov and repelled the detention for good and sufficient reasons contained in para. 13 of the impugned judgment which need not be repeated here.
10. The learned Judges of the High Court agreed with the learned counsel for the appellant "that the witnesses could not indentify as to how and which weapon was used by the appellant" but they did not consider it enough to discard the ocular evidence and gave cogent reasons for relying on the eyewitnesses despite their inability to see which weapon was used by the appellant. They examined the Ballistic Expert who inter alia stated that injury to the deceased could be caused by a weapon of high velocity like kalashnikov, 7 MM rifle or .303 rifle from a distance of 12-20 feet. It was observed that the injuries on the injured P.Ws. Were by ordinary fire-arm, therefore, the assailants were two in number. The circumstances such as absconsion of the appellant in murder case F.I.R.
No,199 of 1989, followed by hard per suit and raid by the concerned police at the house of Hasan, attempt to run away after coming out of the room from which the shots were being fired within the view of the eye-witnesses and his apprehension at the spot alongwith unlicensed kalashnikov are wholly uncompatible with the theory of innocence and lead to the only conclusion that the appellant had participated in the occurrence. In that view of the matter absence of fouling in the kalashnikov recovered from the appellant does not throw any doubt on the prosecution case.
' After hearing the learned counsel for the parties and having gone c through the record we are satisfied that the Courts below have believed the prosecution version for valid reasons.
' For the foregoing reasons there is no substance in these appeals and the same are dismissed.