1. SH. ABDUR RAZZAQ, J.---This appeal is directed against judgment dated 23-12-1992 passed by Ch. Zahoor Hussain, Judge Special Court, (Suppression of Terrorist Activities) Rawalpindi Division, Rawalpindi whereby he convicted Muhammad Akhtar alias Goo Pehlwan son of Ghulam Hussain, Caste Kashmiri, aged 35 years, resident of Mohallah Gharibpura, Gujrat and Zia Ullah son of Sultan Beg, aged 29 years Caste Mughal, resident of Ali Masjid, Gujrat, and sentenced each of them under section 302/34, P.P.C. to imprisonment for life and a fine of Rs,1,00,000 (Rupees one lac) each or in default thereof to suffer R.I. for five years each. Benefit of section 382-B. Cr.P.C. was also extended to the appellants.
2. 2.Briefly stated the facts leading to this episode are that complainant Muhammad Farid (P W.6) was proprietor of Kukku Coach Service, Chowk G.T.S., Gujrat. The stand of Ghousia Travel owned by Mian Saeed Akhtar was located adjacent to Kukku Coach Service. Both the parties had been exchanging hot words over fetching the passengers. On 23-2-1990 a similar dispute arose between Ijaz Khan, brother of complainant and Zia Ullah, Manager Ghousia Travel. Both of them exchanged abuses. However, the matter was patched up by the intervention of other persons. However, while leaving, Zia Ullah threatened Ijaz Khan (P.W.8) to take revenge of that insult. The complainant along with his brothers Muhammad Naveed and Ijaz Khan, Waqar Booking Clerk, and Tanvir Manager, were present at their coach stand at 2.45 p.m. Muhammad Akhtar alias Goo Pehlwan appellant armed with a Kalashnikov, Arif Saeed (acquitted accused) armed with a 12 bore gun, Mian Saeed Akhtar (acquitted accused) empty handed and Zia Ullah appellant armed with 7. mm rifle arrived there. Zia Ullah raised a Lalkara that none of them should go alive. Accordingly Muhammad Akhtar alias Goo Pehlwan fired with his kalashnikov hitting his brother Muhammad Naveed (deceased of this case) at his right flank. Zia Ullah fired with his rifle at Muhammad Naveed hitting his right wrist.
3. Muhammad Naveed fell down as a result of injuries sustained by him. Subsequently Arif Saeed and Zia Ullah kept on firing in the air and shouting Lalkaras that if anybody tried to intervene, he would meet the same fate. Afterwards all of them while firing went towards their stand. The complainant removed injured Muhammad Naveed to Aziz Bhatti Shaheed Hospital Gujrat. The entire incident was witnessed by Tanvir Ahmad (P.W.7), Ijaz Khan (P.W.8) and Waqar P.W.
4. 3.Abdul Ghafoor Inspector/S.H.O. A/Division (P.W,13) learnt about this incident at 2.50 p.m. while he was on petrol duty. He rushed towards Aziz Bhatti Shaheed Hospital Gujrat, where he reached at 3.15 p.m. He moved an application Exh.P.H. for recording the statements of Muhammad Naveed injured, but the doctor opined that Muhammad Naveed injured was not in a fit condition to make the statement. He collected medico-legal report of Muhammad Naveed injured from the medical officer. He then reached the place of occurrence and on the application Exh.P.K. moved by Muhammad Farid, recorded his supplementary statement. He made the Spot Inspection. He collected blood-stained earth vide memo Exh.P.C. and made it into a sealed parcel. He collected three empties of kalashnikov P.1/1-3 vide memo. Exh.P.D. and made them into sealed parcels. On the same day he arrested Zia Ullah, Mian Saeed Akhtar and Muhammad Akhtar alias Goo Pehlwan.
5. On the same day at 10.00 p.m., Muhammad Naveed injured died. He reached the aforesaid Hospital. He took into his possession the dead body. He prepared injury statement Exh.PL. and inquest report Exh.PM. of the deceased. He despatched the dead body through Muhammad Younas and Akhtar Hussain constables for post-mortem examination. On 24-2-1990, Akhtar Hussain constable produced before him last worn clothes P.4 to P.7 of the deceased handed to him by the Medical Officer which he secured vide memo Exh.P.N. On 24-2-1990, Muhammad Akhtar alias Goo Pehlwan appellant led to the recovery of Kalashnikov P.2 which he secured vide memo.
6. Exh.P.E. attested by Tauqir (P.W.11) and Javed Akthar P.W. (not produced). He sealed that in a parcel.
7. On 25-2-1990, he got prepared site-plans Exh.P.B. and P.B./1 from Akhtar Naqqash. On 4-3-1990, accused Zia Ullah led to the recovery of rifle P.3 which he secured vide memo Exh.P.F. On 13-3-1990, he arrested accused Arif Saeed. He handed over the parcels to the Moharrir and after completing the investigation challaned the accused.
8. 4.A charge under section 302/34, P.P.C. was framed against all the accused to which they pleaded not guilty and claimed to be tried.
9. 5.In order to establish the guilt of the accused, prosecution examined Nisar Ahmad Headconstable P.W.1 who on 23-2-1990 drafted formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. On the same day he was given two parcels containing blood-stained earth and empties of Kalashnikov. He delivered the said parcels to Akhtar Ali constable on 24-2-1990. On 26-2-1990, he was handed over another parcel containing Kalashnikov which he delivered to Nazir Ahmad constable on 27-2-1990 for onwards transmission to the office of Forensic Science Laboratory, Lahore. Nazir Ahmad P.W.2 constable deposed that he was given a parcel containing Kalashnikov which he delivered in the office of Forensic Science Laboratory intact. Akhtar Hussain constable P.W.3 deposed that on 26-2- 1990, he was given two sealed parcels by the Moharrir P.W.1 which he delivered in the respective offices intact. Akhtar Naqqash draftsman P.W.4 deposed that on 25-2-1990, he visited the place of occurrence, prepared site-plans Exhs.P.B. and P.B./1 and handed over the same to the Investigating Officer on 27-2-1990. Abdul Rashid P.W.5 identified the dead body of Muhammad Naveed deceased on 24-2-1990 at the time of autopsy. Muhammad Farid P.W.6 is complainant and has corroborated his version appearing in complaint Exh.P.A. which he produced before Abdul Ghafoor Inspector P.W.13. Tanvir Ahmad P.W.7 and Ijaz Khan P.W.8 are the eyewitnesses of this occurrence and both of them corroborated the prosecution version appearing in complaint Exh.P.A. P.W.9 Tanvir Ahmad is a witness of recovery of blood-stained earth and three empties of Kalashnikov P.1 to P.3. Tauqir Ahmad P.W.10 is a witness of recovery of Kalashnikov P.2 at the instance of Muhammad Akhtar alias Goo Pehlwan appellant. The said. recovery was effected from an iron safe of Ghousia Travel Gujrat. Sanaullah P.W.11 is a witness of recovery of rifle from Zia Ullah. Dr. Nusrat Riaz P.W.12 has deposed that on 23-2-1990, he was posted as Medical Officer, Aziz Bhatti Shaheed Hospital Gujrat, when at 2-20 p.m. he conducted medical examination of Muhammad Naveed and found six injuries on his person. He further deposed that injuries Nos.1 and 2 were declared as dangerous whereas injuries Nos.2, 4, 5 and 6 were declared as simple. All injuries were caused by fire arm within the fresh duration. He issued medico-legal report, Exh.P.G. He further deposed that the S.H.O. had moved an application Exh.P.H. for permission to record the statement of the injured Muhammad Naveed on which he gave his opinion Exh.P.H./1 that the patient was not in a fit condition to make his statements. On 24-2-1990 at 11.00 a.m. he conducted post-mortem examination on the dead body of Muhammad Naveed and found six injuries on his person.
10. According to him all the injuries were ante-mortem and caused by fire-arm. Injuries Nos.1 and 2 were sufficient to cause death due to massive haemorrhage and shdck in the ordinary course of nature. The probable time which elapsed between injury and death was within 10 hours and between death and post-mortem examination was within 14 hours. He issued post-mortem examination report Exh.P.J. and diagram of injuries Exh.P.J./1. Abdul Ghafoor, Inspector P.W.13 is the Investigating Officer of this case. Learned Assistant Advocate-General tendered report of Chemical Examiner as Exh.P.P., that of Serologist as Exh.P.Q. and that of Forensic Science Laboratory as Exh.P.R.
6. When examined under section 342, Cr.P.C. acquitted accused Mian Saeed Akhtar deposed about his non-participation in the occurrence and his false involvement in this case as a result of political rivalry which had been going on between Pagganwala Family and Chaudhry Zahoor Elahi Family in Gujrat. He stated that Muhammad Inayat son of Imam Din alias Mamoon caste Arain Resident of Gujrat was the paternal cousin of complainant and the deceased and an active member of party of Chaudhry Brothers arid their staunch supporters. He stated that he, Muhammad Akhtar alias Goo Pehlwan, Arif Saeed and Zia Ullah had been involved in this case by Muhammad Inayat at the instance of Chaudhry Zahoor Elahi Family. He further stated that Zia Ullah accused belonged to their party and that he has leased out Ghousia Travel to him for a sum of Rs,6,000 per month and since one year before the occurrence with which he had no concern nor he ever visited the Adda.
11. When examined under section 342, Cr.P.C. Muhammad Akhtar alias Goo Pehlwan and Zia Ullah appellants as well as Arif Saeed (acquitted accused) denied the prosecution version and adopted the statement of Mian Saeed Akhtar acquitted accused. Mian Saeed Akhtar (acquitted accused) did not adduce defence evidence who appeared in his own defence on oath under section 340(2), Cr.P.C. Muhammad Akhtar alias Goo Pehlwan appellant and Arif Saeed acquitted accused produced defence evidence who did not appear in their defence under section 340(2), Cr.P.C. Zia Ullah appellant did not produce defence and also did not himself appear under section 340(2), Cr.P.C. in his own defence. The accused examined Malik Mushtaq Ahmad D.W.1, Muhammad Aslam D.W.2, Ghazanfar Ali Gul D.W.3, Ajmal Ali Khawar D.W.4 and Mirza Lal Hussain D.W.S. The trial Court also examined Jamil Akmal Constable No,946 C.W.1 and Shujat Ali C.W.2. Muhammad Akhtar alias Goo Pehlwan appellant produced attested copy of F.I.R. No,179 dated 1-7-1990 as Exh.D.B., attested copy of F.I.R. No,49 dated 13-1-1990 as Exh.D.C., a photo copy of score record dated 23-2-1990.
12. 7.After hearing the parties the trial Court gave the weight to the prosecution evidence to the extent of both the appellants and convicted them as narrated above while acquitted the two co- accused. Hence this appeal by the convicts which has been resisted by the State.
13. 8.We have heard the learned counsel for the appellants as well as the learned State counsel and gone through the record before us.
14. 9.Learned counsel for the appellants argued that no occurrence regarding motive ever took place, as no report to that effect was lodged with the police. There is no doubt that no report in respect of occurrence which took place on that day at 9/10 a.m. was lodged but this fact itself does not disprove the motive especially when the matter was initially patched up. Further the motive stands established from the statements of P.W.6 Muhammad Farid, P.W.7 Tanvir Ahmad and P.W.8 Ijaz Ahmad. Thus, the contention is devoid of any force and is ignored.
15. 10.It was next argued .that the very registration of case is doubtful. His contention is threefold; first, how an application Exh.P.Q. moved by P.W.13 Abdul Ghafoor S.I. at 3.15 p.m. contains number of F.I.R. lodged at 4.00 p.m., secondly, why columns Nos.12 and 20 of inquest report Exh.PM. did not contain that death was due to injuries of Kalashnikov and thirdly, why the names of accused did not appear in applications Exh.PL. and Exh.P.O. So far as the first contention, it has been stated by P.W.13 that he mentioned the number of F.I.R. in Exh.P.O. later on. This statement of P.W.13 removes the objection made by the learned counsel for the appellants which has lost its force. About the second assertion suffice is to say that it is not the requirement of law to describe the exact nature of weapon used and the Investigating Officer has not departed from normal routine by writing that death was due to fire-arm injuries. About the third objection we have to express that an explanation has been given by the learned State counsel that according to the routine with the police unless and until accused are arrested, their names are not mentioned in such applications.
16. Thus, non-mentioning of names of the accused in the said applications does not establish the registration of case with deliberations so as to make it doubtful.
17. 11.Again the evidence of incriminating articles i,e, Kalashnikov P.2 and its empties Exh.P.3/1-3 have been challenged on the ground that both these parcels were not sent on one and the same date by the Fire Arms Expert. There is no doubt that the first parcel was sent on 26-2-1990 and the second was sent on 27-2-1990. However, an explanation in this regard has come on record and the same has not been seriously contested. Be that as it may, the despatch does not make any difference, as the empties have been found to have been fired from Kalahnikov Exh.P.2 as per report Exh.P.R. of Technical Services. Again the recovery has been challenged on the ground how P.W.10 Tauqir Ahmad could accompany the police party to the place of recovery as he belonged to the complainant party. The objection is devoid of any force as no such restriction has been imposed by law.
18. 12.The presence of Muhammad Farid complainant P.W.6, Tanvir Ahmad P.W.7 and Ijaz Ahmad P.W.8 has also been challenged. His contention is that had Ijaz Ahmad P.W.8 been present on the spot, he must have been made the target as the initial incident took place between Ijaz Ahmad P.W.8 and Zia Ullah accused and that the absence of any injury on the person of Ijaz Ahmad P.W.8 makes his presence doubtful. It is further argued that had Ijaz Ahmad P.W.8 been present at the place of occurrence, he must have remembered the names of drivers and number of wagons which were present at the Adda at the time of occurrence. The presence of Tanvir Ahmad P.W.7 has been challenged on the ground that he participated in the cricket match which started on that day at 10.30 a.m. Similarly the presence of P.W.6 Muhammad Farid complainant has been questioned on the ground of introduction of improvements to his first stand contained in complaint Exh.P.A. It is thus contended that occurrence has not taken place in the manner in which it has been described in the complaint Exh.P.A. and actually firing was exchanged between the drivers of both Kukku Coach Service and Ghousia Travel on account of fetching of passengers and as the deceased intervened to settle the dispute, he received injuries and as both the parties belong to two different political groups, so one party has been pitched against the other.
19. 13.There is no doubt that initial incident took place between P.W.8 Ijaz Ahmad and Zia Ullah accused, but the mere fact that P.W.8 Ijaz Ahmad was not made a target does not mean that he was not present on the spot as the choice of hitting the victim was with the assailants.. An effort has been made to make his presence doubtful on the ground that he failed to give the number of wagons or the names of drivers who were present at the time of occurrence or which had left prior to the occurrence. The mere fact that he did not know or remember the names of drivers or the number of wagons does not make his presence doubtful. So far as the presence of P.W.7 Tanvir Ahmad is concerned, it was urged that he was playing a cricket match on that day which started at 10.30 a.m. and thus he was not expected to be present at the place of occurrence at the time of occurrence. Admittedly, P.W.7 participated in the match which started at 9.30 a.m. and not at 10.30 a.m. His participation in the cricket match which started at 9-30 a.m. or 10-30 a.m. does not mean that he could not be present at 2-30 p.m. Thus his presence on that score cannot be termed as doubtful. It was asserted that R.W.6 Muhammad Farid mane the improvements and thus he could not be expected to be present at the spot. The improvements regarding attributing fire shots to Ijaz Ahmad P.W.8 is of no material effect, as his stand finds corroboration from medical evidence. The other improvement relates to ineffective firing whether it took place before or after the deceased fell down is of no consequence. Complainant Muhammad Farid P.W.6 as well as eyewitnesses (P.W.7 and P.W.8) have been cross-examined at length regarding the mode of arrival of the assailants, mode of their attack and mode of their departure from the place of occurrence. All of them have stood the test of cross-examination and learned defence counsel has failed to create any doubt in their statements. The mere fact that they are residents of 2-1/2 miles from the place of occurrence does not mean that their presence at 2.30 p.m. at the place of occurrence was not possible. The objections raised are devoid of any force and the presence of all three witnesses stands proved.
14. In view of the findings noted above, we are convinced that prosecution has succeeded in bringing home the guilt of the appellants. Accordingly we uphold the impugned judgment and dismiss this appeal.