' ABDUR RAUF KHAN LUGHMANI, J.--- The appellant, namely, Said Rasool son of Haqdad Khan, resident of Village Zeran, Tehsil and District Lakki Marwat, has filed this appeal against the judgment, dated 11th February, 1999, passed by the learned Special Judge, Bannu, in case F.I.R., No,1080, dated 27-12-1998 of Police Station City, Bannu, vide which he was convicted under section 302(b), P.P.C. For the murder of Haroon-ur-Rasheed and sentenced to death and to pay Rs,4 Lacs as compensation to the legal heirs of the deceased in terms of section 5/4-A(1), Cr. P.C.
2. The case of the prosecution, as unfolded at the trial, is that on the eventful morning of 27th December, 1998, Muhammad Qisas (P.W.7) along with his sons Nawab Khan (P.W.8) and Haroon- ur-Rasheid (deceased aged about 15/16 years) had gone to the clinic of Dr. Saadullah Khan, situated inside Puhari Gate, Bannu City. It about 9.15/9-30 a.m., appellant Syed Rasool Khan, a Police Constable, posted at Police Post Puhari Gate, which is at a distance of 52 (single) paces from the said clinic, came duly armed with service rifle and started firing at Haroon-ur-Rasheed, who having been hit, fell down and succumbed to the injuries on the spot. P.W. Muhammad Jaseem was also present at the time of occurrence. The motive for the offence is stated to be that the appellant was in love with the deceased and wanted to establish friendship with bad intention, but the deceased refused to oblige him. The appellant rushed towards the Police Post Puhari Gate in order to take shelter, as he was being chased by angry people who wanted to beat him.
3. Ghulam Habib, S.H.O., Police Station City (P.W.9) at about 10-00 a.m:, was informed on telephone that a Police Constable of Police Post Puhari Gate had committed murder. He rushed there, where he noticed the said Police Post encircled by the people, raising full throat slogans. The ;bob apprised him that a boy had been assassinated by the constable, who simuld be handed over to them so, as to avenge the murder of the in deceased. The S.H.O., cooled down the mob by assuring and satisfying them that the culprit was in his custody and action would be taken without any fear or favour. The size of the mob grew in number and so was shouting.' Sensing critical situation, he tactfully shifted the appellant to Police Lines, The dead body had already been sent to the Police Station. Since the spot was close, he, therefore, inspected it cursorily and seized five empties and some blood. Thereafter, he went straight to the 'Police Station. Muhammad Qasim (P.W.7), apprehending that the appellant might not be favoured, submitted report in writing (Exh.P/1) to the S.H.O., which was accordingly incorporated into the FIR., (Exh.P.A,), He prepared injury sheet (Exh.PM/1) and inquest report (Exh.PM/2), Meanwhile, he was informed over wireless that the angry mob grew unchecked and attacking the Police Post Puhari Gate, had set it on fire. Outing the attack, the angry mob also looted the service rifles of the police officials from the police post, besides ransacking public properties and setting ablaze other police posts/stations of the city. Vide F.I.R. No, 1081, dated 27-12-1998 case was registered at Police Station City, Bannu, under section 302/324/ 353/436/395/ 396/427/148/ 149/120-B, P.P.C. Read with section 3/4, Explosive Substances Act, against numerous persons. Dui to extremely deteriorating law and order situation in the city, the Investigating Officer' had to defer the investigation. To control the, law and order situation and to restore normalcy, the District Magistrate clamped curfew with effect from 27th December, 1998, which was later on lifted on the evening of 30th December, 1998.
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4. The Investigating Agency of the State once again came into motion on 31-12-1998. S.H.O.
Ghulam Habib (P,W.9) prepared the site plan (Exh.PB), took into possession shirt (Exh,P.4), Shalwar (Exh.P5), Bunyan (Exh.P6), warm jersy (Exh.P.7). P.M. Report' along with a sealed bottle containing bullets (Exh.P.3), vide recovery memo. (Exh.PR/2). He recorded the statements of the P.Ws. One Azizullah was arrested and on his pointation three service rifles, including the one bearing No,155/BD, allegedly used by the appellant in the commission of offence, were recovered. He took into possession the weapon of offence vide, memo. Exh.PR/1 and sealed it into a parcel. He sent the rifle, five empties recovered from the spot and the bullets extracted from the dead body by the Doctor to the Arms Expert. The Arms Expert, namely, Aziz Khan (P.W.1) found that the five empties had been fired from the crime rifle and that the bullets were of .7.62 bore.
5. Dr. Riyaz Ahmad Khan, Medical Officer (P.W. 3) conducted autopsy on the dead body of Haroon- ur-Rasheed on 27-12-1998 at 2-00 p.m. And found the following:--- LIT2AKLAQUIDI
(1) Entry wound of 1/4" size over tip of right shoulder.
(2) Entry wound of 2" x 3" size just behind right ear in scalp.
(3) Entry wound of 1/4" size in outer upper part of left buttock.
(4) Entry wound of 1/4" size in middle border of back of left thigh, near upper end.
(5) Entry wound of 1/4" size in lateral part of upper end of left thigh.
(6) Entry wound of 1/4" size, in the middle of back of left thigh.
EXIT WOUNDS
(1) Exit wound of 2" x 3" in left side of abdomen above middle of left inguinal ligament.
(2) Exit wound of 1/2" in size in left scrotal cycle injuring penis and testicles.
(3) Exit wound of 1/2" in middle part of front of left thigh, near upper end of it.
(4) Exit wound of 1/2" size in middle part of front of left thigh near upper end.
GR61ZE WOUNDS
(1) A 3' x 6" size graze over .Front of right side of chest.
(2) A 1" graze at upper end of front of, right thigh.
BULLETS RECOVERED
(1) Bullet recovered front right side back of chest over medial angle of scapular spine by giving incision.
(2) Bullet recovered by giving incision over dorsal vertebral-column at the level of fourth vertebra.
INTERNAL EXAMINATION Abdomen and Thorax: ' Cramium, spinal cord, pericardium, heart, walls, peritoneum, small and large intestines, organs of generation and muscles were injured. Scalp bone, left thigh bone, right shoulder, cervical vertebrae and upper dorsal vertebrae were fractured.
' The deceased died due to fire-arm injuries to vital organs like brain and spinal cord. He died instantaneously. A bottle containing two bullets recovered from the dead body and clothes of the deceased were sent to the police.
6. On completion of the investigation, challan was put in the Court of Judge, Special Court, Bannu.
7, The appellant, who was charged under section 302, P.P.C. Did not plead guilty and exercised the right of trial.
8. The prosecution produced as many as 9 witnesses in support of its case, whereas of the witnesses, including Muhammad Jaseem, were abandoned. The appellant, ' during the course of examination under section 342, Cr.P.C., claimed innocence and false implication. He denied that rifle go.155/BD, was handed over to him by ).W. Muhammad Saeed constable for the performance of duty and/or that he used it in the commission of crime. According to him, the was performing his duties as "sentry", when in the meantime he noticed two persons passing in front of the post. He suspected that they were hiding illegal arms. He stopped hem and enquired about the authority under which they were carrying arms. They resisted, whereupon many people gathered and amongst them was one Mir Nawaz, who runs business of Hardware in close vicinity. They started beating him and he ran, to save his skin, towards police post and took shelter there. However, no evidence was called in defence.
9. Syed Zafar Abbas Zaidi, learned counsel for the appellant, vehemently assailed the award of punishment to his client on the following grounds:--- ' Firstly, presence of the eyewitnesses at the crucial time is improbable an-1 highly doubtful as Dr. Saadullah Khan (P.W.2) in whose clinic they were allegedly employed, was to start work from 12-00 noon; ' Secondly, in the absence of marginal witnesses to the recoveries and the Report of Frances.
' Science Laboratory are not reliable; ' Thirdly, there is no reliable evidence forthcoming on the record as what was the immediate cause of the occurrence and the motive is shrouded in mystery; ' Fourthly, that the case was and is not triable by a Special Judge as the offence was allegedly committed with a licensed weapon; and ' Lastly, that at any rate it is not a case of the nature where capital punishment is warranted.
10. Mr. Dost Muhammad Khan, learned counsel for the complainant, and Syed Saeed Hassan Sherazi, learned Assistant Advocate-General, for the State have, however, supported the conviction and sentence awarded by the Special Judge, Bannu, to the appellant by stating that the evidence led by the prosecution proved guilt of the accused beyond any shadow of doubt and in the circumstances, the normal penalty of death is proper.
11. We have anxiously considered the arguments advanced by the learned counsel of both the sides and have also minutely gone through the record of the case,.
12. We are of the considered view that the presence of .,the eye-witnesses at the relevant time is fully established and their testimony is above board. Objection of the learned counsel for the appellant that since Dr. Saadullah Khan (P.W.2) was not present and he was to commence his business at 12-00 noon, the presence of the P.Ws. Muhammad Qasim and Nawab Khan at the crucial time in the said clinic, is not warranted, is devoid of force. The said Doctor, during, the cross- examination, had stated that his clinic opens at 8.00 a.m. And on Sunday he used to go to Domal and returns at 12-00 noon to start his work, It is a matter of common knowledge that the subordinate staff of medical practitioners ordinarily come earlier than the scheduled hours so as to open the clinic, set the things right and prepare list of patients. Dr, Saadullah Khan (P.W.2) did state that deceased Haroon-ur-Rashid with his father, P.W. Muhammad Qasim and Muhammad Jaseem use,1' to work in his clinic. No doubt, P.W. Muhammad Qasim is a lineman in the WAPDA and the deceased was a student, but to eke out better livelihood, the low-paid employees of Various organizations do undertake part time jobs. Similarly, the deceased was also doing part time job to help his father to overcome financial hardships, besides studying regularly. P.Ws. Muhammad Qasim and Nawab Khan have fairly and squarely charged the appellant for the murder of the deceased. They claimed to be eye-witnesses and in their view the appellant fired recklessly 7/8 shots, resulting in the tragic death of the deceased on the spot. All the P.Ws. Were subjected to cross-examination but 'nothing' favourable to the accused could be elicited. There is nothing on record to silo', that the eye-witnesses have any enmity with the appellant or substituted C the appellant for real culprit so as to discredit their testimony. Similarly, there is nothing to suggest that the deceased or the complainant party had enmity or with anyone else. In fact the motive advanced by the prosecution would lend ample support to the prosecution case that the deceased was done to death simply because he refused to give in to the immoral demand of the appellant.
13. Next important piece of evidence h furnished by Muhammad Saeed, F.C. (P.W.4), who deposed that on the eventful morning from 6.00 a.m. To 9.00 a.m. He performed his duty as sentry and thereafter, handed over his responsibility along with rifle No,155/BD (China made) to the appellant Syed"Rasool Khan. He went to sleep and after some time woke up on the report of fire shots. He and Rebhan Shah, F,C. Came out of the Police Post and saw the appellant being chased by people. He confirmed that the people wanted to beat him but they successfully intervened and after some time the S.H.O. (P.W .9) also arrived.
14. The contention of the learned counsel for pie appellant with regard to the absence of the marginal witnesses to the recovery of empties effected from the spot, is without any substance in the circumstances of the case. It is on record, notably, in the statement of Investigating Officer that while going back from the police post to the Police Station, he went to the spot which is at shop distance, and recovered some blood and five empties. The spot inspection was done vein swiftly in a minute or so by picking our Woo( and empties. The police constables accompanying time during the spot inspection were busy in controlling and pushing the people back. His immediate concern was to take into possession the blood and the emptied from the spot at a time when the demonstrators were being pushed back by the constables so as to facilitate the spot inspection by the Investigating Officer. Non association of marginal witnesses would no discredit the recovery which is otherwise quite genuine. The law and order situation deteriorated to Inch an extent that the police officials had to take off uniform and to was civilian dress in order to take the dead box for post-mortem examination. There is reason to doubt the Investigating Officer. He was straightforward in the matter of recoveries though he could fabricate the memo. By mentioning marginal witnesses therein. On 31st December, 1998, he resumed investigation, recovered flie-arm weapon, allegedly used in the commission_ of crime, on 2-1.1998, 3rd January, 1999 happened to be Sunday and on 4th January, 1999, the recovery memos. Were sent to the Forensic Science Laboratory for examination and report. P.W. Aziz Khan, Fire-arm Expert, confirmed that the five 'empties recovered from the spot were fired from the service rifle bearing No,155/BD (China made) which was given to the appellant for the performance of his duties at 9-00 a.m., by P.W, Muhammad Saeed, F.C.
15. With regard to the third grievance of the learned counsel for the appellant about the absence of immediate cause of occurrence and that motive is shrouded in mystery, the presence of P.W.
Muhammad Qasim, father of the deceased and Nawab Khan (P.W.8) brother of the deceased, is sufficient to answer the question which further gets support from the statement of Muhammad Saeed, F.C. (P.W.4) who is in fact colleague of the appellant, This witness had stated that he handed over the service rifle to the appellant at about 9-00 a.m. As it was the turn of the latter to perform duty as sentry and, that after some time he heard report of the fire shots whereupon he woke up and saw the appellant coming towards the Police Post, following by people who wanted to beat him but were successfully prevented. P,W, Muhammad Qasim alleged in his written report (Exh.P/l) that the appellant wanted to have friendship with the deceased with bad intention but the deceased had refused to accede to his demand. He advanced the same motive in his statement before the Court as P.W.8 and on this point he was not at all cross-examined. He being father of the deceased, categorically mentioned this fact in his statement before the Court which cannot be disbelieved by any stretch of imagination. The motive is not shrouded In mystery. The appellant was performing his duties at the Police Post and the moment he came to know of the presence of the deceased at the clinic. He left the place of duty without informing anyone. The manner in which the deceased was done to death speaks for itself. The deceased was sprayed with bullets and this fact is further evident from the medico-legal report confirming about six entrance, four exit and two graze wounds. The ocular evidence is consistent and clear that the appellant is responsible for causing murder of Haroon-ur-Rasheed by firing 7/8 shots.
16. About lack of jurisdiction of the Special Court, it was contended that the offence allegedly committed uy the appellant, is not scheduled offence, if the provisions of section 2(b) are read with paragraphs (b) and (c) of the Schedule of the Suppression of Terrorist Activities Act, 1975. In short, the pleiof the appellant is that the allotment and use of rifle is governed under the Police Rules, 1934 and any violation of the rule is amenable to disciplinary action but cannot be treated as unlicensed fire-arm weapon. Only those arms and ammunitions are called licensed one (or which a licence is issued under the Pakistan Arms Ordinance, 1965 (Ordinance XX of 1965). Admittedly, the appellant did not possess any licence under the Arms Act wherein licence is also defined in section 3(1)(e) of the Arms Act, 1965; No doubt, a sentry while performing his duty is authorized to possess a fire-arm in terms of Rule 6.9(1) of the Police Rules, 1934 which provides that when rifles are issued from the armory each man shall take the particular rifle registered against his name and shall be held responsible for it. The prosecution has succeeded in establishing that the rifle with which the appellant committed murder of the deceased was not allotted to the appellant but was given to Muhammad Saeed F.C. (P.W.4). Tinder section 9 of the Arms Act, 1965, any person having in his possession, or under his control any arm or ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby, shall be guilty of the offence under section 13 of the Act (ibid). Of course, licence is the one issued under the provisions of the Arms Act, 1965. We are also of the view that any violation of the Rule 6.9(1) of the Police Rules, 1934, is not only amenable to disciplinary action but also subject to the Pakistan Arms Act, 1965. Assuming, without conceding, for the sake of arguments that arms and ammunitions supplied to the police personnels and their possession under the Police Rules is not only authorized but also legal one and can be treated as licenced weapon, even in that case, the appellant cannot gain any premium, because the rifle with which he committed the murder of the boy, was neither specifically allotted to him nor had he any authority to use it for the commission of crime. He used a rifle allotted to another sentry, namely, Muhammad Saeed, F.C. (P.W.4) and that too at a place other than that where he was supposed to be armed with a service rifle. The moment he left the place where he was required to perform his duty and went with the intention of committing the murder of the deceased, he violated the terms and conditions of the licence, if at all it is presumed to be a licensed one, because even with the licensed arm murder cannot be committed. In the instant case, the appellant was not possessing the rifle specifically allotted to him and was carrying a rifle allotted to another sentry, and for all practical purposes. Can be treated as unlicensed weapon. On the view of the matt that we take, we are firm in our view that the prosecution has proved to its hilt the murd of Haroon-ur-Rashid, deceased at the ban of the appellant and, therefore, the learn trial Judge rightly convicted him und section 302(b), P.P.C.
17. As regards the punishment, the appellant, after leaving his duty place committed the murder of the deceased is brutal manner in broad daylight by firing a many as 7/8 shots. Crime of violence of this nature committed on account of refusal of the victim to satisfy the appellant's unholy passion by firing recklessly, must be put down with iron hand and the award of dated penalty is adequate and proper for his act of wild aggression. Accordingly, while maintaining conviction and sentence as were the award of compensation under section 544-A, Cr.P.C., we dismiss the appeal.
18. The learned trial Judge has also see to this Court Murder Reference (No,1 1999) for the confirmation of the dear sentence. Under the Suppression of Terroriest Activities (Special Courts)
Act, 1975 to sentence of death passed by the trial Court final at that end and it does not required confirmation by this Court in terms section 374, Cr.P.C., firstly, because under section 374, Cr.P.C., the sentence of de awarded by Court of Session is subject confirmation by the High Court and not sentence of death passed by a Co constituted under the Special Act at secondly, the provisions of Chapter XX' have not been made applicable to proceedings under the Suppression Terrorist Activities (Special Courts) A 1975. In this view we are fully fortified b Division Bench judgment reported as Abdul Qadir and another v. The State (1998 PCr 426) wherein it was held that no reference for the purpose of confirmation of the sentence of death shall be competent before the High Court in accordance with the provisions of section 374, Cr.P.C., passed by the Special Court constituted under the Act of 1975. It was held that if convict submits an appeal against the sentence to the High Court within the prescribed limitation, that would be disposed of in accordance with law. Consequently, the murder reference is disposed of as incompetent.
19. Before we part with the judgment, we direct that a copy of this judgment, besides all the concerned agencies shall be immediately supplied to the appellant free of cost through the Superintendent of the Jail concerned. A copy of the judgment should also be forwarded to the Secretary to the Government of N.-W.F.P. Home Department and to the Inspector-General of Police, N.-W.F.P., for strict compliance. They should issue directions for strict adherence to the Rules and Instructions regarding keeping of arms by the police personnels in accordance with the Rules and Regulations of the Police Department . And for this purpose they should also arrange prompt check system.