' GHULAM SARWAR SHEIKH, J.--- This judgment will dispose of murder reference and appeal under section 25 of Anti-Terrorism Act, 1997, against judgment, dated 15-11-1997 whereby the appellant stands convicted under section 302(b), P.P.C. On two counts, for committing Qatl-e-Amd of Constables Muhammad Ashiq and Muhammad Athar Siddiqui, and sentenced to death on each count, to be hanged by neck till he be dead, and under section 324, P.P.C. For launching murderous assault upon Constable Ghulam Mustafa and sentenced to ten years' R.I. With fine of Rs,10,000 in default whereof, to suffer rigorous imprisonment for another term of four months. He has been directed to pay compensation to the tune of Rs,20,000 as compensation to legal heirs of each deceased under section 544-A, Cr.P.C. And suffer rigorous imprisonment for a period of six months on each count in default thereof. Under sections 353 and 186, P.P.C., he has been awarded sentence of imprisonment for a term of two years and three months. Benefit of provisions of section 382-B, Cr.P.C. Has, however, been extended to him.
2. Facts of the case as revealed by Naveed Ikram, Sub-Inspector, the complainant, in his statement Exh.P.C. Upon which, formal F.I.R. Exh.P.C./1 was drawn, in brief, are, that on 22-11-1996 at 3-45 p.m., he alongwith Muhammad Sadiq, A.S.-I., Ghulam Sarwar, Muhammad Nawaz, Fayyaz Ahmad, Constables, and Abdul Majeed, driver, was holding "Naka" at University Chowk, Bahawalpur, when, 100-CC Yamaha motorcycle, of red colour, without bearing any registration number, carrying three persons, was stopped for checking. Two of the riders disclosed their identity as Muhammad Asif son of Nazir Ahmad Qureshi of Fauji Basti and Muhammad Qasim son of Ghulam Sarwar Channar of Khanoo Wali, whereas, the third one was discovered as a renowned motorcycle lifter Muhammad Bahadar son of Faiz Ahmad Tareen, who, all of a sudden, took to his heals towards National Bank cDhowk. Complainant alongwith Muhammad Nawaz and Abdul Majeed, Constables chased him leaving Muhammad Sadiq, A.S.-I. Behind to search the person of Muhammad Asif and Muhammad Qasim. While running Bahadar whipped .30 bore pistol and fired at police party near under construction hospital of Dr. Ata Elahi. At this juncture, a Police Van No,2323/RNH, carrying Muhammad Ashiq, Muhammad Athar Siddiqui, Ghulam Mustafa, Constables and Azhar Hussain, driver also reached there. Sensing the situation, they also joined the chase and Muhammad Bahadur was encircled by southern wall of National Bank. Muhammad Athar Siddiqui, Muhammad Ashiq, Ghulam Mustafa and Azhar Hussain, Constables were to apprehend him, when he fifed six shots from his pistol, one after another, hitting Muhammad Athar Siddiqui and Muhammad Ashiq on their heads and chests and Ghulam Mustafa on his left arm and right leg. Other members of the police party, meanwhile, overpowered him alongwith his pistol at the spot. During this scuffle, he, too received injuries.
3. Muhammad Ashiq succumbed to his injuries there, while Muhammad Athar Siddiqui became unconscious and Ghulam Mustafa was seriously injured.
4. Carrying dead body of Muhammad Ashiq and injured Muhammad Athar Siddiqui and Ghulam Mustafa alongwith Muhammad Bahadur appellant, S.H.O. Reached Emergency Ward of B.V.
Hospital, Bahawalpur, where Muhammad Athar Siddiqui also expired on same day.
5. He prepared complaint Exh.P.C. And sent tDhe same to police station for registration of the case.
Pistol P.1, snatched from appellant, was made into a sealed parcel and taken into possession vide memo. Exh.P.I. Injury and inquest reports Exh.P.E. And Exh.P.G. Of Muhammad Ashiq and Muhammad Athar Siddiqui were prepared. Statements under section 161, Cr.P.C. Of witnesses are taken down.
Last-worn clothes of deceased were taken into possession by means of memo. Exh.P.K. Blood- stained earth was collected through memos. Exh.P.L. Exh.P.M. And Exh.P.N. After the same was made into parcels. Six empties P.6/1-6 of pistol .30 bore were secured from place of occurrence, made into a sealed parcel and taken into possession by virtue of memo. Exh.P.O. Rough map Exh.P.Q. Was prepared by Investigating Officer while site plans of place of occurrence Exh.P.H. And Exh.P.H./1 were got prepared from Ghulam Hassan, Patwari P.W.5. Motorcycle P.11 was taken into possession vide memo. Exh . P. R.
6. On search, a pistol from Muhammad Qasim and a carbin from Muhammad Asif, companions of appellant, were respectively recovered and two separate cases under Arms Ordinance were registered vide F.I.Rs, Nos.399 of 1996 and 400 of 1996.
7. Upon completion of investigation, final report under section 173, Cr.P.C., was submitted in Court against Muhammad Bahadur appellant, who, pleaded not guilty to the charge and at trial prosecution examined as many as 12 witnesses: Deputy District Attorney tendered report of Chemical Examiner Exh.P.S., report of Serologist Exh.P.T. And report of Forensic Science Laboratory as Exh.P.U. And closed prosecution case.
8. While examined under section 342, Cr.P.C. The appellant denied and disputed all incriminating circumstances figuring against him in prosecution evidence and took following plea while answering question No,4:-- "I was returning to my house and while I was on the way, the two deceased and the injured P.W.
Ghulam Mustafa chased me and Ghulam Mustafa robbed a sum of Rs,3,500 from my chest pocket of my shirt. The other two deceased diverted their attention towards the cash. All the three were in plain clothes and were not known to me. I tried to slip away from them, but, Muhammad Ashiq and Athar deceased chased and attacked me. On receiving injuries on the head I felt serious danger.
To my life and keeping in view the offences cesmmitted by said three persons against me, I took out my weapon and in order to defend my life and property I fired at them as a result of which they were injured. There was no Naka and I was not accompanying any other person, but, was coming on foot towards my house near the place of occurrence. The story about Nakabandi and the pursuit by any Police Officer is false and has been concocted on the next day. Naveed Ikram, S.-I.
Was not present at the spot. He did not recover the blood-stained earth or empties from the spot on the said night nor did he write any statement at the place of occurrence promptly disclosing the manner in which the occurrence took place in fact. I protected my life and property and protected myself."
9. Appellant neither opted to make his statement on oath to disprove the allegation as envisaged by section 340(2), Cr.P.C. Nor led any evidence in his defence, either.
10. On culmination of trial, learned Trial Court convicted and sentenced him, as indicated, supra.
Hence this appeal.
11. Learned counsel for the appellant has contended that holding of Nakabandi and, for that matter, very presence of complainant and his companions at the spot is doubtful as documentary evidence about holding Naka in daily diary of police station has been withheld for which an adverse presumption under section 129(G) of Qanun-e-Shahadat Order, 1984 has to be taken; Naveed Ikram, S.-I. P.W.6 did not witness the occurrence, and admitted in his cross-examination that he had not recorded complaint Exh.P.C. At the spot; he even neither secured blood-stained earth from the spot nor crime empties on the night of occurrence; ocular account is unnatural, improbable and unbelievable inasmuch as none from the police party holding Naka sustained injuries; injuries on the person of appellant have been suppressed to distort the fact that the appellant acted in his self-defence when three policemen in plain clothes robbed him of Rs,3,500; and investigation was conducted dishonestly to save false honour of police suppressing the robbery by three policemen in plain clothes. On these premises, judgment of the learned Trial Court has been lambasted and acquittal has been claimed for the appellant.
12. Contentions have been controverted by learned A.A.-G., who, has defended impugned judgment and acclaimed the same to be correct in all respects.
13. To appreciate the same, record has been scanned by able assistance of the learned counsel for the parties.
14. The prosecution has relied upon ocular account, medical evidence and recoveries to prove its case. Naveed Ikram, S.-I. P.W.6, Muhammad Nawaz, Constable and Ghulam Mustafa, Constable, an injured P.W., have furnished ocular account of the gory incident that claimed lives of Muhammad Ashiq and Muhammad Athar Siddiqui, Constables and injuries to Ghulam Mustafa, Constable.
Naveed Ikram, S.-I. Testified as to how, he and police party was holding Naka at University Chowk, when, appellant Muhammad Bahadar and his two compatriots happened to come there, riding a motorcycle and were stopped for checking as the motorcycle was not bearing any registration number. He thus, provided convincing details of incident reported in complaint Exh.P.C., made by him in Emergency Ward of B.V. Hospital, Bahawalpur where he had gone immediately after the occurrence with dead body of Muhammad Ashiq, Constable and alongwith Muhammad Athar Siddiqui, Constable, since deceased, and Ghulam Mustafa, Constable in injured condition. He elaborated that Muhammad Bahadar appellant also sustained injuries which were mentioned by him in complaint Exh.P.C. He successfully withstood the test of cross-examination.
15. Ghulam Mustafa, Constable P.W.7 a gunman of D.I.-G., Bahawalpur suffered injuries in the incident. He too, corroborated Naveed Ikram, S.-L, P.W.6 on material particulars. He was in police van, which came at the spot when Muhammad Bahadar appellant was being chased by police party led by Naveed Ikram, S.-1. P.W.6. Muhammad Athar Siddiqui and Muhammad Ashiq, Constables, since deceased, was with him in the same van, besides, Azhar Hussain, driver. Seeing the police party, in hot pursuit of appellant, they too, joined the chase displaying high sense of their duty. While overpowering appellant, witness sustained injuries. He could not be shattered by defence in cross-examination. He denied the suggestion that he and two deceased constables robbed appellant of Rs,3,500 and chased him, while, he was on run even after being robbed of. It was suggested to this P.W. That he and his two companions since deceased were injured by the appellant while running away and, in this way, presence of this P.W. At the time of occurrence, injuries on his person and death of his two companions at the hands of appellants has been admitted by the defence itself, however, with a plea, the truth or falsity whereof shall be sifted in this judgment at appropriate stage. Muhammad Nawaz P.W.8 also testified about the eye-witness account; withstood gruelling cross-examination and fully corroborated P.W.6 and P.W.7 the other two eye-witnesses.
16. Medical account has been furnished by Dr. Aslam Baig P.W.2, who, had examined Ghulam Mustafa P.W.7 for his injuries on 22-11-1996 in B.V. Hospital immediately after the occurrence. 'He proved medico-legal report Exh.P.A. In this regard, according to which, the injured sustained 3 fire- arm wounds on his left upper forearm and thigh. Duration of the injuries was noted within two hours.
17. He also examined Muhammad Bahadar appellant at the same time, when, police brought him in hospital. He had sustained two lacerated wounds mentioned as under:--
(1) There was a lacerated wound measuring 2.05 c.m. On the fronter region, X-Ray was advised.
(2) There was lacerated wound measuring, 1.5 x 5 c.m. In direction 9 c.m. From the right ear. X-ray was advised.
' Duration of his injuries was also within two hours like the injuries of Ghulam Mustafa injured P.W.7.
18. Dr. Muhammad Javed Akhtar P.W.4, conducted post-mortem examination on the dead body of Muhammad Ashiq on 22-11-1996 vide postmortem report Exh.P.D. On 23-11-1996, he conducted similar examination on the dead body of Muhammad Athar Siddiqui and his post-mortem report is Exh.P.F. Both the aforesaid deceased, according to post-mortem reports died of fire-arm injuries. As the appellant has not challenged the infliction of these injuries from his pistol though with a plea, therefore, further dilation of these injuries or re-capitulation thereof is not necessary. Rest of prosecution evidence is of formal nature.
19. As a necessary corollary defence plea in juxtaposition with case set up by the prosecution is to be evaluated. Plea of the accused in nutshell is that Muhammad Ashiq, Muhammad Athar Siddiqui, both deceased, and Ghulam Mustafa the injured P.W. Previously not known to him, surprised him, while, he was on his way back to home with Rs,3,500. Ghulam Mustafa P.W. Robbed him of the cash and as the two deceased were attracted by the cash robbed; he ran for his life, but, Muhammad Ashiq and Muhammad Athar Siddiqui chased and caused injuries to him and he, but for, his life and property injured them in return with his pistol. Even an uninitiated and naive would not believe this tailored defence. Two deceased and Ghulam Mustafa the injured P.W. Were not known to the appellant; they could not have any animosity with him. If they had robbed him of Rs,3,500, all property with him, why, did they chase him and what for when he was running away from them. If the intention was to arrest him and plant some fake case to show "Police Carvie" they had already overpowered him without any resistance and one of them had robbed him of the cash. Why then the other two were attracted to cash. Even otherwise, they, as per defence version, were unarmed and accused already having been robbed of without any resistance could not have apprehended any danger of receiving any hurt what to speak of "danger of life". Thus, the defence plea is false, manufactured and figment of imagination of the appellant and is liable to be discarded altogether.
20. Production of an extract from Rozenamcha to prove presence of Naveed Ikram, S.-I. At spot was not essential for the prosecution; the defence while cross-examining this witness could have requested the Court for production of Rozenamcha, but, same was not done at any stage and thus, no adverse presumption can be gathered and drawn against prosecution. Presence of Naveed Ikram, S.-I. P.W.6 at the place of occurrence stands proved beyond any shadow of doubt. He has been fully corroborated by Ghulam Mustafa injured P.W. And Muhammad Nawaz P.W.B. He has no rancour against appellant or interest in two deceased or Ghulam Mustafa injured P.W. They were Foot Constables. Had they committed robbery, no one in police, had saved them at the cost of innocent victim. Naveed Ikram, S.-I. P.W.6 was under no compulsion of the department to purge himself under oath.
21. We, therefore, see no force in this appeal, which, is hereby dismissed. As a sequel thereto, conviction and sentence of the appellant is maintained and murder reference is answered in the affirmative.