' MUHAMMAD NASEEM CHAUDHRI, J.--- This appeal is directed against judgment, dated 31-5-1992 passed by Ch. Ghulam Sarwar, Judge, Special Court, No,IV Suppression of Terrorist Activities, Lahore Division, Lahore whereby he convicted and sentenced Muhammad Amir appellant son of Fateh Muhammad, caste Jat, aged 35 years, resident of village Saidpur, District Kasur to death and to fine of Rs,50,000 or in default of its payment to undergo R.I. For two years under section 302/34, Pakistan Penal Code who also convicted and sentenced Sher Muhammad appellant son of Khuda Bakhsh, caste Jat, aged 25 years, resident of Saidpur District Kasur and Muhammad Boota alias Booti appellant son of Noor Muhammad caste Arain aged 25 years resident of Chak No,7 District Kasur to life imprisonment each and to fine of Rs,50,000 each or in default of its payment to undergo for a period of two years each under section 302/34, Pakistan Penal Code. In case of recovery of fine the same was directed to be distributed amongst the heirs of Muhammad Hussain deceased as compensation under section 544-A of the Code of Criminal Procedure.
2. The occurrence took place on 27-10-1990 at about 5-00 p.m. Within the area of village Saidpur after the conclusion of the General Election to the Provincial Assembly. The facts giving rise to this appeal are that Muhammad Aslam complainant P.W.13 got drafted complaint Exh.P.D. From Sardar Muhammad Ashiq Dogar, Advocate, Kasur C.W.1 on 30-10-1990 which alongwith copy Exh.D.B. Of medico-legal report pertaining to Muhammad Hussain deceased he produced before Liaqat Ali Shah, Inspector/S.H.O. Police Station Khudian, District Kasur P.W.21 in the company of the said Sardar Muhammad Ashiq Dogar, Advocate while the said S.H.O. Was present in the office of the Superintendent of Police, Kasur. He sent complaint Exh.P.D. To Police Station Khudian, District Kasur where formal F.I.R. Exh.P.D./1 was prepared by Muhammad Siddique, Head Constable P.W.4 who also substituted section 307, Pakistan Penal Code by section 302, Pakistan Penal Code due to the death of Muhammad Hussain. Muhammad Aslam complainant P.W.13 alleged in the complaint Exh.P.D.
That in the Punjab Provincial Assembly Elections held on 27-10-1990 his brother Muhammad Hussain (deceased of this case) was acting as the polling agent of Sardar Muhammad Hussain Dogar candidate against his rival candidate Sufi Sardar Khan. Muhammad Hussain (deceased) had a quarrel with Muhammad Amir appellant and Suleman acquitted accused, who were the polling agents of Sufi Sardar Khan, over casting of bogus votes by the voters. On the same day at about 5-00 p.m. When the polling was over Muhammad Hussain deceased went to the nearby field of peddy crop for urinating. Abruptly there emerged Muhammad Amir appellant armed with klashnikov Sher Muhammad appellant armed with mauser pistol, Sumair Khan acquitted accused armed with carbine and Suleman acquitted accused armed with rifle alongwith two other persons both armed with rifles whom he could identify. The aforesaid persons fired at Muhammad Hussain which hit different parts of his body who fell on the ground. The occurrence was seen by him (Muhammad Aslam complainant), Sardar Khan P.W.15 and Haji Bashir Ahmad P.W.16. On their alarm the assailants made good their escape alongwith their respective weapons. Muhammad Hussain was taken in an injured condition to District Headquarters Hospital, Kasur where he was medically examined and on the advice of the Medical Officer was shifted to May Hospital. Lahore where he remained as indoor patient and expired on 9-11-1990.
3. After getting registered formal F.I.R. Exh.P.D./1 Liaqat Ali Shah, Inspector/S.H.O. P.W.21 went to the place of occurrence. He made the spot inspection and prepared rough site plan Exh.P.O./2. He took into possession blood-stained earth vide memo. Exh.P.E. Attested by Muhammad Hussain P.W.6 son of Noor Ahmad and Muhammad Nawaz P.W.9. He recorded the statements of the P.Ws. He handed over the sealed parcel containing the bloodstained earth to Moharrir Thana on whose transfer the same went under the possession of Muhammad Hussain, Moharrir Constable P.W.8 who handed over the same to Sher Muhammad, Constable P.W.7 on 17-3-1991 which he delivered in the office of the Chemical Examiner, Lahore.
4. On 27-10-1990 and 28-10-1990 Fazal Din, A.S.-I., Police Station Khudian District Kasur P.W.10 visited Mayo Hospital, Lahore who submitted application Exh.P.G. To enquire as to whether or not Muhammad Hussain admitted there was fit to make the statement. The Medical Officer gave his opinion Exh.P.G./1 in the negative.
5. ON 8-11-1990 Fateh Muhammad, S.-I. Police Station Khudian P.W.11 received the information about the death of Muhammad Hussain who reached May Hospital, Lahore on 9-11-1990 at 12-30 a.m.
(midnight). He took into possession the dead body of Muhammad Hussain and prepared inquest report Exh.P.H. He handed over the dead body to Muhammad Iqbal, Constable P.W.5 and Muhammad Rafique constable (not produced) who took the same to the D.H.Q. Hospital, Kasur for post-mortem examination. After the post-mortem examination Muhammad Iqbal, Constable P.W.5 handed over the dead body to the relatives.
6. The case was also investigated by Muhammad Iqbal Butt, Inspector/new S.H.O. Police Station Khudian P.W.18 who got prepared site plan Exh.P.O. And Exh.P.O./1 from Muhammad Nasrullah Draftsman P.W.17 containing the notes and drawing with black ink in the hand of the aforesaid Draftsman and with red ink in his own hand. He got issued the proclamation and notices pertaining to Muhammad Mukhtar alias Chhambi proclaimed offender from the Area Magistrate which he handed over to Jehangir Ali, A.S.-I. P.W.1. However, the said accused could not be arrested.
7. 'Muhammad Boota alias Booti appellant was arrested on 8-4-1991 by Dr. Muhammad Shafique, Additional Superintendent of Police, Kasur P.W.23.
' Through application Exh.P.Q. Containing order Exh.P.Q./1 of the Area Magistrate this accused was sent to the judicial lock-up of District Jail Kasur as the identification parade qua him was to be got conducted. This witness (P.W.13) also made the spot inspection on 1-12-1990 who arrested Muhammad Amir and Sher Muhammad appellants as well as Sumair Khan and Suleman acquitted accused on 20-12-1990. Abdus Samad Shah, Deputy Superintendent of Police, Range Crimes, Lahore P.W.22 submitted application Exh.P.J. For holding identification parade of Muhammad Boota alias Booti appellant. Muhammad Hameed, S.-I. Range Crimes, Lahore also investigated the case.
He took the P. Ws. To District Jail Kasur on 5-6-1991 whereunder the supervision of Mr. Riaz Mahmood Magistrate 1st Class, Kasur P.W.12 the identification parade pertaining to Muhammad Boota alias Booti appellant was conducted who was correctly identified by Muhammad Aslam complainant P.W.13 and Haji Bashir Ahmad P.W.16 while Sardar Khan P.W.15 could not identify him.
Mr. Riaz Mahmood, Magistrate 1st Class, Kasur P.W.12 prepared report Exh.P.K. Of the identification parade. Thereafter, the physical remand of Muhammad Boota alias Booti appellant was obtained by Muhammad Hameed, S.-I. P.W.20 who on 19-6-1991 led to the recovery of 7 mm rifle P.1 from a deserted Haveli situated in Mauza Saidpur which was taken into possession vide memo. Exh.P.L.
Attested by Muhammad Aslam complainant P.W.13 and Sher Muhammad P.W. (not produced). He prepared site plan Exh.P.L./1 of the place of recovery of rifle P.1. This rifle was sealed in a parcel. The sealed parcel remained in the custody of Abdus Samad Shah, D.S.P. P.W.22 who sent the same to the office of the Forensic Science Laboratory, Lahore through Ghulam Rasool, Constable P.W.19 on 26-6-1991 from where the report was not received as the same does not form part of the record.
8. Dr. Adnan Hakeem, Medical Officer D.H.Q. Hospital Kasur P.W. Medially examined Muhammad Hussain injured on 27-10-1990 at about 7-00 p.m. Whose blood pressure at that time was 90/70 m.m. HG and his pulse was 90 p.m. He found four injuries with fire-arms on the person of the aforesaid injured caused within a probable duration of three hours. He issued Exh.P.B., medico-legal report, and advised that the patient may be immediately taken to Mayo Hospital, Lahore.
9. In Mayo Hospital, Lahore Muhammad Hussain injured was operated upon. Dr. Shafqat Bazaz, Medical Officer, North Surgical Ward, Mayo Hospital, Lahore P.W.14 issued death certificate Exh.P.M.
Pertaining to Muhammad Hussain injured admitted in Mayo Hospital, Lahore who was earlier operated upon there and Exh.P.N. Is a copy of the operational notes.
10. Dr. Zia-ul-Haq, Medical Officer D.H.Q. Hospital, Kasur P.W.3 conducted the post-mortem examination on the dead body of Muhammad Hussain on 9-11-1990 at 8-00 a.m. Muhammad Hussain P.W.6 son of Noor Ahmad identified the dead body. This medical witness found ten injuries on the person of Muhammad Hussain deceased which included the injuries received during the operation. According to this medical witness Muhammad Hussain deceased died of shock due to injuries to small and large intestine and left lung which were caused by fire-arm weapons. He issued Exh.P.C. Carbon copy of post-mortem report and Exh.P.C./1 carbon copy of the diagram showing the location of the injuries in the person Muhammad Hussain deceased.
11. After completing the investigation the police submitted the challan before the Trial Court. At the trial the aforesaid witnesses appeared in the witness-box and supported the prosecution case. The District Attorney produced in evidence report of the Chemical Examiner as Exh.P.R. And that of the Serologist as Exh.P.R./1 making out that the blood-stained earth was stained with human blood. It is pertinent to mention that the report of the Fire-arm Expert was not produced in evidence.
12. When examined under section 342, of the Code of Criminal Procedure, all the accused persons stated about their non-participation in the occurrence and took up the stand that they were falsely involved due to enmity. Muhammad boota alias Booti appellant took up the stand that he was kept in Thana for more than two months who was shown to the P. Ws. And that the identification parade was without any legal weight. Zafar Maqbool, Headmaster who worked as Presiding Officer at the Polling Station Saidpur on 27-10-1990 appeared as D.W.1 and stated that a quarrel took place at the polling station between the polling agents namely Sumair Khan and Muhammad Hussain deceased. He continued that they heard a blast report after the conclusion of the polling time.
Abdul Ghafoor D.W.2 was the Polling Officer at the Polling Station Village Saidpur who stated that no dispute occurred regarding the casting of the votes. Muhammad Ismail D.W.3 stated that after the polling on 27-10-1990 he heard the fire shot and saw two persons running from east to west alongwith their pistols. Dr. Muhammad Javed Athar Senior Registrar, Mayo Hospital, Lahore D.W.4 stated that Muhammad Hussain injured was operated upon, but no bullet was removed from his body. The accused persons did not choose to appear under section 340(2) on oath in their respective defence.
13. After hearing the parties learned counsel Trial Court gave the weight to the motive, ocular evidence, medical evidence and abscondance of Muhammad Boota alias Booti appellant as well as the identification parade conducted qua him. The appellants namely Muhammad Amir, Sher Muhammad and Muhammad Boota were convicted and sentenced as narrated above. However, Sumair Khan and Muhammad Suleman were acquitted by the grant of benefit of doubt. Feeling aggrieved the convicts have preferred the aforesaid Criminal Appeal No,551 of 1992 which has been resisted by the State. Muhammad Aslam complainant preferred Criminal Revision No,564 of 1992 with the prayer to enhance the sentences awarded to Sher Muhammad and Muhammad Boota alias Booti convicts to get the same converted to death penalty and also prayed for the enhancement of the fine to the extent of all the convicts. The appellants-convicts have resisted the aforesaid revision. Both the aforesaid matters are being disposed of through this consolidated judgment.
14. We have heard the learned counsel for the appellants-convicts, learned counsel for the complainant and the learned State Counsel and gone through the record before us. Learned counsel for the appellant argued that the occurrence allegedly took place on 27-10-1990 at 5-00 p.m. While the matter was reported to the S.H.O. Police Station Khudian in the office of Superintendent of Police Kasur through the submission of complainant Exh.P.D. By Muhammad Aslam complainant P.W.13 and that in between the deliberations were effected to rope iri the innocent persons and this aspect of the matter is enough for the purpose of the exoneration of the appellants. We do not agree with the learned counsel for the appellants in this respect. As rightly pointed out by the learned State Counsel it is a case wherein the Executive Authorities supervising the General Elections to the Punjab Provincial Assembly as well as the Police showed the lethargy and indolence in the matter. During the arguments it was intimated that Sardar Muhammad Hussain lost the election and Sufi Sardar Khan won the same. We are of the view that admittedly Muhammad Hussain deceased was the polling agent of the loosing candidate Sardar Muhammad Hussain and the Executive Authorities as well as the police did not initiate the criminal proceedings even though the occurrence took place at 5-00 p.m. On 27-10-1990. Muhammad Hussain was removed to D.H.Q. Hospital, Kasur just after the occurrence who was examined thereby Dr. Adnan Hakeem P.W.2 who issued medico-legal report a copy of which is Exh.P.B., but did not intimate the police. At his advice Muhammad Hussain injured was removed to Mayo Hospital, Lahore. It is in the statement of Fazal Din, A.S.-I. P.W.10 that he visited Mayo Hospital, Lahore on 27-10-1990 and 28-10- 1990 when he submitted application Exh.P.G. To get the opinion from the Medical Officer as to whether or not Muhammad Hussain injured was in a position to make his statement who was replied in the negative. Fazal Din A.S.-I. P.W.10 had visited Mayo Hospital on 27-10-1990 and 28-10- 1990 who must have met some relatives or at least some attendant of Muhammad Hussain injured.
However, Fazal Din, A.S.-I. Did not proceed to register the case. Even the Medical Officer attending Muhammad Hussain injured in Mayo Hospital, Lahore also did not inform the police. All this shows the apathy of the police towards the complainant party with respect to the registration of the F.I.R.
In this view of the matter the contention of the learned counsel for the appellants that the F.I.R. Was registered with deliberations and previous investigation is devoid of any legal value. It all happened because the winning candidate must have the pressure upon the police, as is a matter of common scene and frequent observation in our society. We are tempted to record our observation that whenever an injured is taken to the hospital who is examined there, it is the bounden duty of the Medical Officer to inform the concerned Police so that the legal machinery is set in motion. However, in an occurrence of the instant nature which took place just on the day of the General Election to the Provincial Assembly the Executive Authorities and the Police as well as the polling staff were bound to initiate the criminal proceedings as the occurrence had taken place close to the polling station just after the conclusion of the polling time and Presiding Officer as well as his staff had become aware of the same. This assertion. As such, has failed to impress us and we hold that the delay in the registration of the F.I.R. Wherein the complaint Exh.P.D. Was submitted by Muhammad Aslam complainant before the S.H.O. In the company of a learned Advocate in the office of the Superintendent of Police, Kasur, due to the texture of working of the Police, has no adverse effect to the prosecution case and is not fatal thereof. Learned counsel for the appellant argued that the statements of the eye-witnesses have no legal force because it is the admitted position that Muhammad Aslam complainant P.W.13 is a brother of Muhammad Hussain deceased while Haji Bashir Ahmad P.W.16 is a maternal-uncle of Muhammad Hussain deceased whose statements are to be viewed with caution which are liable to be ignored as they are the interested witnesses. On the contrary learned State Counsel laid the emphasis that in view of the fact that the General Election to the Provincial Assenibly took place on 27-10-1990, the presence of both Muhammad Aslam P.W.13 and Haji Bashir Ahmad P.W.16 at the polling station in Village Saidpur where the aforesaid P.Ws. And the deceased lived was natural. Further, Sardar Khan P.W.15, a resident of village Saidpur, is not related to the deceased who is an independent person. We hold the view that this assertion need not be given the weight. Sardar Khan P.W.15 is an independent witness and is Meo by caste who was aged 52 years when examined on 6-5-1992. There was no previous history and enmity between the P.Ws. And the accused persons. The statements of the aforesaid related prosecution witnesses are independently enough to connect the appellants named in the F.I.R. Who even otherwise have been supported and corroborated by the statement of the aforesaid independent witness. The occurrence took place at 5-00 p.m. On 27-10-1990 during day light and the chance of error with respect to the identification of Muhammad Amir and Sher Muhammad appellant cannot be expected. At this stage it is proper to express that in the complaint Exh.P.D. It is specifically narrated that the dispute emanated on the ground of bogus voting between Muhammad Amir appellant and Muhammad Hussain deceased. This part of the statements of the eye-witnesses has to prove as a corroborative piece of evidence. The statements of the D.Ws. That no dispute arose need not be given the weight particularly when the facts mentioned in the statements of the D.Ws. Were not put to the aforesaid eye-witnesses and as such the statements of the D.Ws. Can be ignored in the matter. We pass an . The occurrence did not take place in any house or in a street. The place of occurrence is a field which was close to the building wherein the polling was conducted which stood concluded just before the occurrence and at the aforesaid time all the persons interested in the matter are expected to be present near the polling station to know as to what is in store for the contesting candidates on the basis of the counting of the votes. The P.Ws. Were expected to be present at the polling station which was in village Saidpur wherein they lived and thus to the extent of the appellants named in the F.I.R. The statements of the eye-witnesses with respect to the occurrence and the motive cannot be ignored as desired and required by the learned counsel for the appellants. We, therefore, give the weight to the motive and the ocular account.
15. Learned counsel for the appellants argued that according to site plan Exh.P.O. The deceased was at point "A" while the assailants were at point "B" and the distance in between was 30 feet.
According to him Dr. Adnan Hakeem, P.W.2 found burning around the four wounds found by him on 27-10-1990 after examining Muhammad Hussain injured who issued medico-legal report Exh.P.B. He stressed that the medical evidence is in conflict with the statements of the eye-witnesses when viewed in the light of site plan Exh.P.O. Wherein the distance was 30 feet between the deceased and the assailants. He maintained that according to the aforesaid report of Dr. Adnan Hakeem P.W.2 the assailants could be at a close range between 4 to 6 feet. We do not agree with him in hii assertion that the case of the prosecution has become doubtfully. The exact distance in such a state of affairs when the assailants emerged abruptly to surprise the deceased cannot be determined by the eye-witnesses. Further during these days the weapons are sophisticated and are of latest model. This aspect of the matter is not enough to make doubtful the prosecution case and we discard this assertion. As such the medical evidence shall play the legal role so as to prove corroborative piece of evidence and we hold that the learned Trial Court rightly relied upon the same.
16. We, therefore, agree with the learned Trial Court to the extent of the conviction of Muhammad Amir and Sher Muhammad appellants on the basis of motive, ocular evidence and the medical evidence adduced by the prosecution against them and hold that both the said appellants cannot escape their criminal liability in the matter.
17. We now take up the case of Muhammad Boota alias Booti applicant. Learned counsel laid the emphasis that he was not named in the F.I.R., that according to para. 19 of the impugned judgment the recovery of .7 mm rifle P.1, attributed to him, from a deserted 'Haveli' has not been given the weight and that . His identification parade was conducted about two months after his arrest as he was apprehended on 8-4-1991 and the identification parade was arranged and conducted on 5- 6-1991. On the contrary learned State Counsel as well as the learned counsel for the complainant laid the emphasis that in the identification parade Muhammad Boota alias Booti appellant was correctly identified by the eye-witnesses and that he has correctly been convicted. We, however, express the view that the reasoning adopted by the learned counsel for Muhammad Boota alias Booti appellant has to prevail. He was not named in the F.I.R. And his features were not entered in the F.I.R. He was arrested on 8-4-1991. The recovery of .7 mm rifle P.1 from a deserted 'Haveli' attributed to him has not been given the weight by the learned Trial Court. The solitary ingredient of identification parade independently is not enough for the purpose of his conviction. Even otherwise, the aforesaid identification parade need not be relied upon because Muhammad Boota alias Booti appellant was arrested on 8-4-1991 and the identification parade was conducted on 5-6-1991. At the time of identification parade Muhammad Boota alias Booti could not be identified by Sardar Khan P.W.15. Further he made the objection before Mr. Riaz Mahmood Khan, Magistrate 1st Class Kasur P.W.12 during the identification parade that for about two months he was kept in the police station and he was shown to the P.Ws. Further in the identification parade report Exh.P.K. No role was specified by Muhammad Aslam complainant P.W.13 and Haji Bashir Ahmad P.W.16 to Muhammad Boota alias Booti appellant and this ingredient of the prosecution case has lost its value and force. Admittedly the recovery of .7 mm rifle P.1 has not been relied upon by the learned Trial Court. We, therefore, hold that there was no justification to connect Muhammad Boota alias Booti appellant against whom the prosecution has miserably failed to establish its case. As such he is declared to be innocent and is not liable to face the criminal liability for which he was charged.
18. Learned counsel for Muhammad Aslam complainant argued that there was no extenuating circumstances to grant lesser punishment to Sher Muhammad appellant-convict and that all the convicts have been burdened with less compensation to be paid to the heirs of the deceased. We do not agree with him. The direct motive is attributed to Muhammad Amir appellant-convict.
Keeping in view the normal financial circumstances of the convicts the amount of compensation is held to be reasonable.
19. For what has been said above, we dismissed Criminal Revision No,564 of 1992 filed by Muhammad Aslam complainant.
20. In view of our aforesaid findings we accept this Criminal Appeal No,551 of 1992 to the extent of Muhammad Boota alias Booti appellant, set aside the same to his extent and pass the order of his acquittal who shall be set at liberty forthwith, if not required to be detained in any other case.
21. We, however, dismiss Criminal Appeal No,551 of 1992 to the extent of Muhammad Amir and Sher Muhammad appellants.