' ASIF SAEED KHAN KHOSA, J. Sadiq Hussain Shah appellant was convicted for an offence under section 302, P.P.C., by the learned Additional Sessions Judge, Gujrat vide judgment, dated 27-2-1993 and was sentenced to death and a fine of Rs,50,000 or in default of payment thereof to undergo R.I.
For five years. He was also convicted for an offence under section 307, P.P.C., and was sentenced to R.I., for ten years and a fine of Rs,20,000 or in default of payment thereof to undergo R.I. For two years. The appellant was also convicted by the learned Trial Court for an offence under section 353, P.P.C., and was sentenced to R.I. For one year. It was further ordered by the learned Trial Court that if the sentence of death passed against the appellant was not confirmed by the High Court then all the sentences of imprisonment passed against the appellant would run concurrently. However, through the same judgment, the learned Trial Court had acquitted the appellant's co-accused namely Mazhar, Shan and Akram. Sadiq Hussain Shah has challenged his convictions and sentences before this Court through Criminal Appeal No,149 of 1993 which has been heard by us along with Murder Reference No,76 of 1993 seeking confirmation of the sentence of death passed against him. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution case unfolded in the F.I.R., was that on account of an information about apprehended breach of peace between one Muhammad Bashir on the one hand and Baqir and others on the other hand Ahmad Khan, Constable had gone to village Harya on 26-7-1990 along with Ghulam Qadir, Constable and Ch. Muhammad Baqir, A.S.I., on a car driven by one Javed Iqbal.
At about 4-00 p.m. On the same day when they were returning on the said car after arresting the said Baqir, etc. a tyre of that car got punctured at a canal bank upon which Ch. Muhammad Baqir, A.S.I., and the others got down from the car and Javed Iqbal driver then changed the punctured tyre. In the meanwhile Sadiq Hussain Shah appellant, Abid Shah, Mazhar, Shan and Akram accused came there. Sadiq Hussain Shah appellant was armed with a .30 bore pistol whereas the others were armed with sotas. Immediately after their arrival Akram accused exhorted his companions by shouting that the police officials would not be allowed to take their relatives to the police station as the same would be an insult to them. Upon that Ch. Muhammad Baqir, A.S.-I., tried to pacify the accused party and told them that Baqir, etc., had been arrested in view of the apprehended breach of piece and that they would be released from the police station if they could satisfy the complainant. Suddenly Sadiq Hussain Shah appellant fired a shot from his pistol which hit Ch. Muhammad Baqir, A.S.-I., on right side of his chest and upon receipt of that injury the latter fell down. Ghulam Qadir, Constable and Ahmad Khan, Constable then tried to apprehend Sadiq Hussain Shah appellant but during that effort the appellant fired two shots from his pistol at Ghulam Qadir, Constable hitting him in his right arm-pit and on the back of his right shoulder. Soon, thereafter, Ahmad Khan, Constable and Javed Iqbal driver took both their injured companions to Malikwal Hospital but Ch. Muhammad Baqir, A.S.I., succumbed to his injuries upon reaching the hospital. Ghulam Qadir, Constable was, however, admitted to the hospital for medical treatment.
According to Ahmad Khan, Constable the accused party had taken Baqir, etc., with them while fleeing form the place of occurrence.
3. Upon receipt of information about the occurrence Ch. Muhammad Ashraf, Inspector/S.H.O., (P.W.14) went to the Civil Hospital, Malikwal whereas he recorded the statement (Exh.PA) of Ahmad Khan, Constable in respect of the occurrence in question at 4-40 p.m. On the same day.
Subsequently formal F.I.R. No,342 (Exh.PA/1) was recorded in that regard at Police Station Malikwal, District Gujrat on the same day at 4-50 p.m. For offences under section 302/307/148/149, P.P.C., Allah Yar, A.S.I. (P.W.2) had recorded the said formal F.I.R.
4. After recording the statement of Ahmad Khan, Constable (Exh. P.A) Ch. Muhammad Ashraf, Inspector/S.H.O. (P.W.14) took up the investigation of the case and, while at the hospital, he prepared an injury statement in respect of Ghulam Qadir, Constable as well as an injury statement and an inquest report in respect of Ch. Muhammad Baqir, A.S.I., deceased. He then sent the dead body of Ch. Muhammad Baqir, A.S.I., to the mortuary for autopsy. Still later on the same day, i,e,, 26- 7-1990 Ch. Muhammad Ashraf, Inspector/S.H.O., (P.W.14) went to the place of occurrence and secured blood-stained earth therefrom.
5. Ghulam Qadir, Constable was medically examined by Dr. Arshid Mahboob (P.W.5) at 4-45 p.m.
On 26-7-1990 who found four injuries on the person of the injured. Injury No,4 was declared to be simple in nature whereas the remaining injuries were kept under observation. Injury No,4 was found by the doctor to have been caused by blunt weapon whereas the other injuries were caused by fire-arm. According to the doctor the injuries had been caused within a duration of half an hour to one hour. Subsequently after receipt of the operation note injury No,1 sustained by Ghulam Qadir, Constable was declared to be grievous and all the other injuries were declared to be simple in nature.
6. Post-mortem examination of the dead body of Ch. Muhammad Baqir, A.S.I., was conducted by Dr. Masood Ansar (P.W.9) at 7-40 a.m. On 27-7-1990. The doctor had found three injuries on the dead body out of which injuries Nos.1 and 2 had been caused by fire-arm whereas injury No,3 had been caused by blunt weapon. In the opinion of the doctor death had occurred due to haemorrhage and shock as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. Injuries. Nos.2 and 3 were opined by the doctor to be simple in nature. Probable time elapsing between the injuries and death was immediate and that between the death and post- mortem examination was about fifteen hours.
7. After medical examination of Ghulam Qadir, Constable his last-worn blood-stained clothes were received by Ch. Muhammad Ashraf, Inspector/S.H.O., (P.W.14), the Investigating Officer, on 26-7- 1990. On the next day, i,e,, 27-7-1990 he received the last-worn blood-stained clothes of Ch. Muhammad Baqir, A.S.I., deceased after the post-mortem examination. On 5-8-1990 he arrested the accused persons of this case and on the same day he took into possession a pistol and six live cartridges produced before him by Arif, H.C., after recovering the same from Sadiq Hussain Shah appellant. Subsequently on 10-8-1990 he recovered sotas from the other accused persons. Later on he got a formal site-plan of the place of occurrence prepared by a Patwari and also completed the other formalities during the investigation of this case. Upon completion of investigation he prepared and submitted a challan against the accused persons of this case.
8. At the commencement of the trial the learned Trial Court framed a charge with four heads under sections 148, 302/149, 307/149 and 353/149, P.P.C., against the appellant and.His co-accused to which they pleaded not guilty and claimed a trial.
9. During the trial the prosecution produced as many as fifteen witnesses in support of its case against the appellant and his co-accused. Ahmad Khan, Constable, complainant (P.W.2) and Ghulam Qadir, Constable (P.W.8) furnished the ocular account of the incident in question. The medical evidence was provided by Dr. Arshid Mahboob (P.W.5) and Dr. Masood Ansar (P.W.9).
Ahmad Khan, Constable (P.W.2), Muhammad Arif, H.C. (P.W.6) and Ghulam Rasool (P.W.13) deposed about the recoveries of weapons of offence from different accused persons during the investigation of this case. Ch. Muhammad Ashraf, Inspector/S.H.O. (P.W.14). Stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
10. In their statements recorded under section 342, Cr.P.C., the appellant and his co-accused denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him Sadiq Hussain Shah appellant had stated as follows: "I have been falsely involved in this case because I am a party man of Noor Muhammad alias Noor resident of Chimon, Tehsil Phalia, District, Gujrat. An uncle of the deceased was murdered and for that reason in that case Noor Muhammad alias Noori mentioned above was challaned. I prosecuted that case for defence on behalf of Noori and supplied them with all the material available with me and had also produced witnesses before police against uncle of the deceased. It is on account of that reason that I was challaned at the instance of the ' relatives of the deceased and so the police falsely implicated me in this case."
' The said answer given by Sadiq Hussain Shah appellant was also adopted by all his co-accused.
However, the appellant and his co-accused neither made any statement on other under section 340(2), Cr.P.C., nor did they produce any witness in their defence.
11. At the conclusion of the trial the learned Additional Sessions Judge, Gujrat convicted and sentenced Sadiq Hussain Shah Appellant as mentioned and detailed above but acquitted his co- accused. Hence, the present appeal and the connected Murder Reference before this Court.
12. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have gone through the record with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, at any rate, the facts of the present case did not warrant capital sentence against the appellant. As against that the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and also that there was no mitigating factor available in the present case so as to warrant reduction of the appellant's sentence.
13. After hearing the learned counsel for the parties and going through the record we have felt no hesitation in concluding that the prosecution had indeed succeeded in proving] its case against Sadiq Hussain Shah appellant beyond reasonable doubt. It was a daylight occurrence and the F.I.R., in that respect had been lodged quite promptly wherein the appellant had been specifically nominated to be the principle perpetrator of the offences in question. Ahmad Khan, Constable, complainant (P.W.2) and Ghulam Qadir, Constable (P.W.8) had absolutely no animus against the appellant so as to falsely implicate him in a case of this nature. Ghulam Qadir, Constable (P.W.8) had the stamp of injuries on his person so as to vouchsafe his presence at the place of occurrence during the incident in question. Both the said eye-witnesses had made consistent statements regarding the main incident especially as far as the role played by the appellant therein was concerned. Some minor improvements or contradictions found in their statements were negligible as far as the appellant was concerned and the same did not detract from the veracity of their statements. Both the said witnesses were responsible police officials and nothing was available on the present record so as to inter any malice on their part so as to falsely implicate the appellant in this case.
14. It has significantly been noticed by us that during cross-examination of the eyewitnesses produced by the prosecution it was not disputed by the defence that on account of an apprehension of breach of peace in the village in question the local police had visited the said village and had arrested Baqir, etc., who belonged to the accused party of this case. It was also not disputed by the defence that the said Baqir, etc., had been arrested by the police and that they were being taken to the police station at the time when the present occurrence took place. It was the appellant's own case during cross-examination of the eye-witnesses that the arrest of Baqri, etc., by the police had given rise to protest by the appellant and others and during the said protest somebody from the protestors had fired at the complainant party. With all his experience and ability the learned counsel for the appellant has argued before us that indications were available on the record to the effect that at the said occasion the police had shown extreme high- handedness and had, during the process, insulted and manhandled the womenfolk of the accused party and, therefore, the crowd gathered at the spot had reacted to the same resulting in firing at the police party by someone from that crowd. However, despite his erudite arguments addressed before this Court in that context the learned counsel for the appellant has remained unable to point out any material on the record regarding the alleged manhandling and high-handedness on the part of the police during the said occasion. Apart from that the learned counsel for the appellant has also failed to point out any reason for the police witnesses to pick the appellant out of the whole village and to attribute to him the injuries sustained by the deceased and the injured witness. In this context we are mindful of the fact that one of the fire-arm injuries sustained by the deceased had blackening around it which manifested firing at the deceased from a close range.
Thus, it was not possible to seriously argue in this case that the eye-witnesses were not in a position to locate and identify the person firing at the police party.
15. Although there was no ongoing or pre-existing motive for the appellant to commit the present murder or to launch murderous assault yet it is common ground between the case of the prosecution and the suggestions put to the eye-witnesses by the defence that an intention to kill had been formed by the culprit during the proceedings of the occurrence itself. In this context we are conscious and cognizant of the legal position that the evidence of motive serves as a pointer to the culprit and helps locate and identify a possible assailant in a case requiring corroboration to the ocular account but where the ocular account is furnished by completely independent witnesses who are found by the Court to be entirely reliable then absence of an on-going or pre- existing motive is not necessarily fatal or detrimental to the prosecution's case. An intention to kill can surely be formed during the progress of an occurrence and the same, we are confident, had happened in the present case.
16. It is true that recovery of a pistol from the appellant during the investigation of this case was not of much avail to the prosecution as in the absence of any matching of the said pistol with a crime- empty corroborative value of such a recovery was reduced to nothing. However it is equally true that where the statements of eyewitnesses in a criminal case commend themselves for whole- hearted reliance on account of their disinterestedness as well as consistency then lack of corroboration from the evidence of recovery of weapon of offence does not impair or affect the prosecution's case against the culprit with any degree of seriousness.
17. The medical evidence available on the record of the present case had provided sufficient support to the ocular account. The time of occurrence, the weapon used by the culprit and the locale of injuries stated by the eye-witnesses were all confirmed by the medical evidence.
Although one of the injuries found on the dead body of the deceased had initially not been explained by the prosecution yet the absence of explanation regarding one of the injuries found on the dead body could not furnish a platform sound or solid enough to destroy or dismantle the entire edifice of the prosecution's case. It was not unnatural for the eye-witnesses to have failed to notice a shot fired by the assailant or an injury sustained by the deceased. After all a gruesome murder committed with fire-arm can hardly be learned as a statistical proposition wherein audit and account is to be maintained for each and every shot fired and each and every injury sustained. Thus, this minor lapse on the part of the prosecution has not been found by us to be sufficient to discard the prosecution's case against the appellant as a whole. As a matter of fact the said lapse not only fitted into the natural course of things but the same also pointed towards registration of the F.I.R., before medical examination or post-mortem examination of the deceased.
Had the deceased been medically examined or his dead body subjected to post-mortem examination before registration of the F.I.R., then all the injuries found on the deceased would have been properly explained in the F.I.R. We must observe here that appreciations of evidence in criminal cases depends entirely on the perceptions of the Court regarding veracity of the witnesses produced during .The trial. In the present case we have found the eye-witnesses produced by the prosecution not only to be independent and disinterested but also worthy of implicit reliance for the purposes of recording conviction of the appellant. Thus, failure of the said witnesses to explain one of the injuries sustained by the deceased has not impaired their trustworthiness in our eyes.
18. For the foregoing reasons we have entertained no doubt that the learned Trial Court was amply justified in recording the convictions of the appellant as the prosecution had indeed succeeded in proving its case against the appellant beyond reasonable doubt.
19. We have also anxiously considered the question of sentence to be awarded to the appellant on the Charge of murder. We have already noticed above that there was no preexisting or ongoing motive on the part of the appellant propelling him into a premeditated aggression against the deceased and also that the appellant was sucked into an ugly situation which was not of his own making. Be that as it may the fact remains that the appellant attacked a police party with fire-arm at 'a time when the police party was performing its legal duty towards maintaining peace between parties bent upon breaching the same. The institution of police represents the authority of the State and it stands for maintenance of law and order in the society. We are of the considered opinion that mounting an assault on the police amounts to mounting an assault on the State and its authority. Ch. Muhammad Baqir, A.S.I., deceased was fired at and killed by Sadiq Hussain Shah appellant at a time when the former was performing his official duties regarding avoidance of breach of peace. There is nothing on the present record establishing any high-handedness shown by the deceased or the other police officials towards the appellant or the members of his family or community at the relevant time providing any justification to the appellant to fire at and kill the deceased. A lenient treatment dished out to the appellant in the matter of sentence on a capital charge in the present case would amount to recognizing and extending a licence to the citizens to assault or kill functionaries of the State whenever exercise of jurisdiction by them is perceived by the citizens to be unjustified. Laying down such a perceived by the citizens to be unjustified. Laying down such a principle on such a vague basis is going to be extremely dangerous for the society at large and we are not ready to do so. We are also mindful in this context that the normal wages of a crime of murder is death and the appellant in this case does not deserve any less. We are not ready to invoke a laboured pretext to withhold from the appellant the normal wages of his crime.
The sentence of death passed against the appellant by the learned Trial Court is, therefore, maintained and confirmed.
20. For the foregoing reasons Criminal Appeal No,149 of 1993 filed by Sadiq Hussain Shah appellant is dismissed and his convictions as well as sentences recorded by the learned Trial Court are hereby maintained.
21. As the sentence of death passed against Sadiq Hussain Shah appellant has been confirmed by us, therefore, Murder Reference No,76 of 1993 is hereby answered in the affirmative.
' The sentence of death is confirmed.