RAJA MUHAMMAD KHURSHID, J.- By this judgment we propose to dispose of Murder Reference No. 214/T of 1997 and Criminal Revision No. 97 of 1997 besides the instant Criminal Appeal as all of them rise out of the impugned judgment.
2. The appellant/convict Inayat Ullah Khan was tried on the charge under Sections 302/392 PPC and was sentenced to death under Section 302(b) PPC and a fine of Rs. 25,000/- or in. Default two years' R.I. On the second charge i.e. Under Section 392 PPC he was sentenced to 10 years' R.I. And a fine of Rs. 10,000/- or in default to undergo further R.I. For one year. The fine-if recovered was directed to be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C, vide judgment dated 14.10.1997 passed by Ch. Saifullah Buttar, Judge Special Court Anti-terrorism.
Rawalpindi Division and Islamabad Capital Territory.
3. The brief facts are that on 26.7.1994 at about 5.30 p.m. The complainant Haji Ahmad alongwith Muhammad Siddique deceased were going on a motorcycle No. RIS-8315 from the side of Golra Railway Station to their house situated in Dhoke Ranzania. The deceased Muhammad Siddique was driving the motorcycle, whereas the complainant Haji Ahmad was occupying the pillion seat. The appellant/convict raised lalkara and asked the deceased to stop the motorcycle whereupon the latter stopped the same. The appellant/convict pulled out a pistol and made three successive fires from it. The bullets hit in. The abdomen of the deceased, who fell on the ground. The complainant took refuge behind a bush. The appellant/convict started the motorcycle and proceed towards Dhoke Ranzania. On hearing the fire reports and the hue and cry raised by the complainant, the people from the nearby abadi were attracted to the spot. They started pursuing the assailant. The occurrence was also seen by Muhammad Salim who was also present nearby in his fields. The deceased succumbed to the injuries whereupon the present case was registered on the same day at 6.20 p.m. The appellant/convict was overpowered by the people who were pursuing him and was produced before the police alongwith the weapon of offence i.e. Pistol.
4. The police also recovered 3 crime empties 4/3-1 from the spot vide memo.^ Ex.P/B. The pistol i.e. The weapon of offence was taken into possession vide memo. Ex.P/C.
5. The prosecution examined the eye-witnesses namely Haji Ahmad (PW11)-being the complainant of the case, whereas Muhammad Saleem whs put in the witness -box as PW-12. The recovery of the weapon of offence i.e. Pistol P-1 vide memo. Ex.P/C was proved through Nazar Hussain PW-4. The recovery of crime empties .1-3 vide memo. Ex.P/B was proved through Abdul Latif PW-3. Motorcycle No; RIS-8315 was taken into possession in the presence of Muhammad Asif - PW-2 and Nazar Hussain PW-4.
6. The witness namely Arshad Mahmood PW-1 and Nazar Hussain PW-4 had overpowered the appellant/convict after he was pursued by them. The aforesaid Nazar Hussain with the help of one Amjad had caught hold of the appellant in the presence of Muhammad Rafaqat and Pervaiz Akhtar PW-5 and PW-6 respectively. The deceased was removed to Islamabad Hospital Complex in the car of Ibrar Hussain (PW-7) after he was injured in the occurrence. The site-plan was prepared by Sarfraz Ahmad Patwari PW-15. The medical evidence was brought on record through Dr. Muhammad Naseer PW-8, which showed that the deceased was done to death due to the firing made upon him with the fire-arm. He also found that the appellant/convict also suffered fire-arm injuries, though these injuries were not mentioned in the FIR, itself, but in the 'karwai' police it was mentioned that appellant/convict was found injured. These injuries were however, explained by the PWs. Who had overpowered the accused by stating that the latter was injured as some body pursuing him had fired at him as a result of which he had fallen from the motorcycle and was caught red-handed. The pistol i.e. The weapon of offence sent to the ballistic expert but it did not motch the empties which were picked up from the spot. The blood-stained earth was not collected from the spot as according to the Investigating Officer the same was washed out by heavy rain.
7. The learned counsel for the appellant/convict has submitted that the prosecution has not been successful to prove its case beyond any reasonable doubt. In this connection, it was contended that the blood-stained earth was not collected to pin point the place of occurrence: that the weapon of offence recovered from the appellant/convict did not match the crime empties: that the complainant is close relative of the deceased; hence his evidence was not reliable; that other witnesses were either co-villagers of the deceased or were merely chance witnesses; that the motive in the case was also shady and that the origin of the occurrence being shrouded in mystery, the case had become doubtful.
8. In defence it was stated that the appellant/convict was dealing in the business of illicit arms. The police was pursuing him on the day of occurrence to arrest him and had fired at him thereby causing him injury in the abdomen. Later on he was allegedly implicated in this case falsely with the help of the complainant, who being a relative of the deceased nominated him in the case although the deceased was done to death by some unknown person.
9. The learned counsel for the state assisted by the learned counsel for the complainant contended that FIR in this case was very promptly lodged, which excluded even the remotest possibility of a false or substituted case: that the eyewitnesses or the other prosecution witnesses were not only independent but were also disinterested; that there was no chance of the false implication of the appellant/convict by such type of witnesses; that though the crime weapon i.e. The pistol did not match with the crime empties but that would not make any difference so for as the evidence of the eye-witnesses is concerned; that the medical evidence clearly corroborated the testimony of the eye-witnesses that the deceased was done to death by the appellant/convict by making fires with a pistol; that non-recovery of blood-stained each would also not create any doubt in the veracity of the prosecution case particularly as the blood was washed out by heavy downpour; that catching of the appellant/convict at the spot after he was injured by some one from the crowd will speak for his physical presence to the spot; that the antecedents collected by the Investigating Agency show that the appellant/convict is hardened and heartless criminal having long list of criminal cases in some of which he has been admittedly convicted. His defence version that he was injured by the police while the latter was pursuing him in connection with selling of illicit arms or for his implication by the eye-witnesses at the instance of the police does not convince about his innocence nor it rings true because it is not likely that disinterested witnesses would falsely involve the appellant/convict in the case if in fact he was not the killer of the deceased who was their kith and kin or a co-villager.
10. We have considered the foregoing' submissions. It is clear that the appellant/convict confronted the deceased when he was travelling on motorcycle, while the complainant Haji Ahmad was sitting on the pillion seat. Although the aforesaid Haji Ahmad is 'Khalasad' of the deceased but it is not likely that he would falsely name the appellant/convict for the murder of his first cousin. It will be natural instinct on his pan that he should bring the actual offender to book particularly when he was also accompanying the deceased and had saved his life after hiding himself behind the bush.
On seeing the gruesome murder of his first cousin, the complainant would not spare the actual offender who had enacted the lawful tragedy under his eyes. The other eye-witness namely Muhammad Saleem was grazing his cattle in the nearby field and had seen the high-handedness committed by the appellant/convict when the latter had robbed the deceased of his motorcycle on pistol point and also callously fired to take his life. The complainant however, managed to escape behind a nearby bush and was thus miraculously saved. The fire reports as well as the noise raised by the complainant attracted other nearby villagers which included Arshad Mahmood PW-1, Nazar Hussain PW-4, Muhammad Rafaqat PW-5 and Pervaiz Akhtar PW-6. None of them is either related to the deceased or inimical to the appellant/convict. They clearly stated that they had overpowered the appellant/convict after he was injured due to the fire made by some one from the crowd, it is thus obvious that such like witnesses have no axe to grind, but that truthful story should be narrated regarding the participation of the appellant/convict regarding the murder of the deceased committed by him. Likewise the eye-witnesses Muhammad Saleem is not only natural, but disinterested witness having no relationship with the deceased or enmity with the accused.
11. In view of the above qualitative testimony of eye-witnesses, there is not an iota of. Doubt to say that the prosecution has proved its case beyond any reasonable doubt that the deceased was done to death by the appellant/convict. The mere fact that the pistol P-1 did not match with the crime empties would lose evidentiary value of its recovery, but in the presence of the unimpeachable ocular account of occurrence and the witnesses, who had caught the appellant at the spot would in no way mitigate the intrinsic value of the version given by eye-witnesses. There is no choice or possibility regarding the substitution of the appellant/convict for the real offender because the occurrence had taken place at 5.30 p.m, on 26.7.1997 whereas the case had been registered on the same day at 6.20 p.m. Although the Police Station was at a distance of 2/3 kilometers from the place of occurrence. Hence the FIR having been promptly lodged and the accused having been caught at the spot and handed over to the police by independent witness would provide sufficient and wholesome corroboration to the eye-witnesses who had actually seen the appellant/convict committing murer of deceased after snatching his motorcycle, the medical evidence consisting of the post-mortem report Ex.P/B would show that the deceased was done to death by the fire-arm injuries in his abdomen from a close range. It is thus obvious that the appellant/convict must be quite close to the deceased when he had snatched the motorcycle and had made fires upon him. As such the charring round the injure' would show that the fire was made by the appellant/convict at the deceased from a very close range as will be obviated from the situation attending to the occurrence.
12. List Ex.P/H speaks about the antecedents of the appellant/convict. It shows that the appellant/convict had 15 cases to his credit out of which the first was registered some time in 1984 and the last in 1994. In some of the cases aforementioned he was acquitted and in at least 4 cases he was convicted and awarded sentence to different terms. In one of the cases registered against him vide FIR No. 121. Dated 30.5.1993 under Section 392 PPC. He was declared absconder. It is thus oh\ nuts that the accused is a hardened and heartless criminal having been involved in similar type of cases in the past and had also been convicted and sentenced in some of such cases. Even according to his on statement under Section 342 Cr.P.C, he had stated in reply to question No. 15 that in some cases under the Arms Ordinance he was convicted. However, he while replying to question No. Lb contended that he was dealing in illicit arms. The police had tried to haul him up to search his person. He allegedly ran away, whereupon a police official fired at him with private weapon and as a consequence thereto he was injured. However, later on the police planted this case through forged evidence and with the help of PWs. He however, did not lead any defence nor did he appear to make statement-on oath in disproof of the allegation against him.
13. It is clear from the statement of the appellant/convict that he had raised the plea for the first time that he was injured by the police official with a private weapon while he was running away as the police wanted to haul him up. This story appears to be concocted and an after-thought because the complainant or other witnesses in this case would in no way be willing to become false witnesses at the instance of the police, if the deceased was not done to death by the appellant/convict. There is no possible reason that .The prosecution witnesses would side with the police in order to implicate the appellant/convict falsely in this case. The injury has already' been proved on the person of the appellant to have been caused to him. While he was being pursued by a crowd after he had killed the deceased. In such a situation, there is no doubt- about the culpability of the appellant convict to have committed the murder of the deceased Muhammad Siddique in order to rob his motorcycle. The prosecution having proved its case against the appellant convict beyond any reasonable doubt, the learned trial Court had riaht. Lv convicted him for the murder of the deceased and for committing the robbery of his motorcycle.Since the murder was commited ini a heartless manner. therefore the normal penalty of death under Section 302(h)
PPC was rightly awarded by the learned trial Court. It needs no interference. The death sentence passed upon the . Appellant/convict' is therefore, maintained alongwith fine as awarded by the learned trial Judge. Likewise the conviction under Section 392 PPC made by the learned trial Court is upheld, as the offence against the appellant/convict has been proved beyond any doubt.
14. Resultantly we find no merit in this appeal, which is dismissed. The convictions and sentences passed by the learned trial Court are accordingly upheld. The death sentence awarded to the appellant/convict is confirmed. Murder Reference No. 241-T/97 is decided accordingly-in affirmative.
15. The complainant had filed criminal revision with the prayer that the sentence of fine under Section 302 PPC be enhanced from Rs.25,000/- to Rs. 5.00.000/- and under Section 392 PPC from Rs. 10,000/-. To Rs, 1.00.000/-. However, there is nothing on record. To justify that the appellant/convict has sufficient means to satisfy. The aforesaid proposed heavy amount of fine.
We therefore, do not fine ourselves in agreement with the learned counsel for the revision petitioner that the fine be enhanced as aforesaid. The sentence of fine awarded on each count under Section 302 PPC and under Section 392 PPC by the learned trial Court is not only reasonable but appropriate in the given situation. The revision petition is therefore, dismissed.