1. ' BASHIR A. MUJAHID, J.---Shahid Javed son of Muhammad Latif and Zulfiqar Hussain son of Mushtaq Hussain have challenged judgment, dated 27-8-1999 passed by Judge, Anti-Terrorism Court No,1, Lahore whereby they were convicted under section 302/34, P.P.C. And were sentenced to death on two counts for causing death of A.R. Sharif and Khurshid Ahmad. They were further ordered to pay compensation of Rs,one laceach on each count under section 544-A, Cr.P.C. To be paid to the legal heirs of both the deceased or in default of payment of compensation they had to further undergo one year R.I. On each count.
2. ' The occurrence which resulted into murder of A.R. Sharif and Khurshid Ahmad took place at 7-30 p.m. On 23-11-1998 in Tegore Park at a distance of one K.M. From Police Station, Naulakha, Lahore and F.I.R. No,499 of 1998 (Exh.PA/1) was recorded on the written application Exh.PA of Muhammad Rashid P.W.2, moved to Yousaf Ali Khan, S.-I. P.W.23 on the same day, at the spot at 8-30 p.m. And formally F.I.R. Was recorded by Imran Khan, A.S.-I. P.W.20 at Police Station at 8-50 p.m. On the same day.
3. ' Brief facts of the prosecution case as. Narrated in the application Exh.P.A. Are that on the day of occurrence at 7-30 p.m. The complainant received telephonic call that his brother-in-law namely A.R. Sharif has been murdered by the unknown persons so he was asked to arrive at Tegore Park, immediately, where 1,1 a house Abdul Aziz son of deceased A.R. Sharif has his business of carpets.
4. He arrived t.t the spot and saw the,deceased lying in pool Df blood, after receiving fire-arm injuries.
5. The blood was spread all over in the office, corridor and courtyard. Abdul Aziz son of the deceased had gone to America. The servants of Abdul Aziz were namely Zulfiqar (driver) Shahid Javed (accountant) and Naseer P.W. And Khurshid apart from other employees whose names were not known to the complainant. The deceased had no personal enmity with any one and he might have been murdered by the employees or any one of them. It was also stated that at the spot he was informed that Khurshid, one of the employees, was also injured at the spot who subsequently succumbed to the injuries.
6. ' Yousaf Ali P.W. 23 who had arrived at the spot on receipt of information of the occurrence sent the application Exh.P.A. To Police Station through Faryad Hussain, Constable for registration of case with his endorsement. He inspected the place of occurrence and took into possession the piece of carpet P.4 and one softy chappal of left foot P.3, crime empties P.1/1-7 and 3 lead of bullet P.2/1-3 vide recovery memo. Exh.P.W. He also took into possession blood with cotton from the place of occurrence vide memo. Exh. P.B. From near the door of coridore and a softy chappal of right foot.P.5 vide memo. Exh.P.D. He also took into possession 4 buttons P.6/1-2 from the store room at first floor of the house, a piece of Nawar (Patti) with knots P.8 and scissor P.9, two wrist-watches with broken straps P.7/1-2 vide memo. Exh,P.E.. He also took into possession Shalwar P-11 and Shirt P.10 vide memo. Exh.P.F. He prepared the injury statement of dead body of A.R. Sharif vide memo. Exh.PV and inquest report vide memo. Exh.PY and entrusted the dead body to Munawar All and Javed Khan Constables for post-mortem examination. He also recorded the statement of Naseer Ahmed P.W.
7. Under section 161, Cr.P.C. Who gave all the details of the occurrence and implicated the present appellant and Khurshid (deceased) as accused. He prepared the site plan of place of occurrence Exh.P.Q. At the spot. He received information that Khurshid Ahmad injured also died in Emergency Ward of Mayo Hospital, Lahore where he arrived and took into possession the dead body of Khurshid Ahmad where Fayyaz, Head Constable, Mujahid Squad was present near the dead body.
8. He prepared the inquest report vide memo. Exh.P.O and injury statement Exh. PT and entrusted the dead body to Ghulam Rasool, H.C. And Muhammad Amin, LHC for post-mortem examination. He arrived at the place of occurrence again and got prepared the photographs through Ijaz Ahmad P.W.16.
9. ' On 30-11-1998 he arrested Shahid Javed and Zulfiqar accused. On 8-12-1998 Shahid Javed accused while in police custody led to the recovery of pistol P-29 with silencer and five live bullets P.30/1-5 vide memo. Exh.P.S. On the same day Zulfiqar accused also led to the recovery of pistol P- 27 with two live bullets P.28/1-2 which were taken into possession vide recovery memo. Exh.P.M. He recorded the statements of the prosecution witnesses, completed the investigation and challaned the accused.
10. ' They denied the allegation and claimed the trial.
11. ' During the trial prosecution has examined as many as 23 witnesses to prove the guilt of the accused. The medical evidence was furnished by Dr. Imtiaz Ahmad Bhatti P.W.7 who on 3-11-1998 at 9-20 p.m. Medically examined Zulfiqar Hussain accused and found the following injuries on his person:--
(1) Healing abrasion 0.4 x 0.2 c.m. On back middle phalanx of right middle finger.
(2) Healing abrasion 0.4 x 0.2 c.m. Onthe back middle phalanx of right index finger.
12. ' According to his opinion the injuries were Damayah under section 337-F(i), P.P.C. And were caused by blunt means (consistent with teeth bite) within the duration of one week.
13. ' Dr. Amir Mirza P.W.14 conducted post-mortem examination of Khurshid Ahmad deceased on 25-11- 1998 and found the following injuries on his dead body:---
(1) 1.75 x 1.3 c.m. Fire-arm wound of entry present on the top of right chest near the shoulder. It was 16 c.m. From middle and 12 c.m. Above right nipple at 11'O clock position.
(2) 1.5 x 1 c.m. Wound with everted margins on the back of right upper arm near the posterior axillary fole. It was 13 c.m. Below top of shoulder and 30 c.m. Above right elbow.
14. ' Dr. Tanvir Hussain Rana P.W.22 conducted the post-mortem examination on the dead body of A.R.
15. Sharif on 26-11-1998 and found the following injuries on his dead body:---
(1) A grazed wound measuring 5 x 1c.m. x bone deep was present on the top and back of head 5 c.m. Above occipital protuberance and 1.5 c.m. To the right of midline.
(2) Grazed wound measuring 9 x 2.5c.m. x bone deep on the left side of head and forehead. 6 c.m.
16. From midline and 3.5 c.m. From left earpinna.
(3) Grazed wound measuring 7 x 2 c.m. Starting from the left side of lip up to right side including the under surface with upper 6 central teeth were broken.
(4) A lacerated wound measuring 2 x 0.5 c.m. Present on the left side of back of head 2 c.m. From midline and 12 c.m. From left earpinna.
(5) Grazed wound measuring 7 x 0.5 c.m. On the tip of middle finger of left hand.
(6) A lacerated circular wound of entry measuring 0.5 x 0.5 c.m. Into going deep with tatooting in an area of 8 x 8 c.m. All around the wound was present on the palm of right hand. 7 c.m. Below wrist-joint and 7 c.m. Above proximal joint of little finger.
17. (6-B) A lacerated fire-arm wound of exit with everted margins measuring 1 x 0.5 c.m. On the back of right wrist, 1 c.m. Below wrist-joint.
18. (7-A) A lacerated fire-arm wound of entry with inverted margins measuring 1 x 1 c.m. On the front of left arm. 6 c.m. Above left elbow-joint.
19. (7-B) A lacerated wound of fire-arm of exit with everted margins measuring 1 x 1 c.m. On the back of left arm. 10 c.m. Above elbow joint under line bone i,e, humerous was fractured.
20. (8-A) A lacerated fire-arm wound of entry with inverted margin measuring 1 x 1 c.m. Fircular wound present on the front of upper most part of chest 1 c.m. Below left clavicle and 0.5 c.m. Left of midline.
21. It was going deep.
22. (8-B) A lacerated fire-arm wound of exist with everted margins measuring 1 x 0.7 c.m. Present on the back of left side of chest on the middle part. 13 c.m. To the left of middle.
23. ' The ocular account was furnished by P.W.2 Muhammad Rashid Ahmad, who was complainant of the case. He corroborated the version of the F.I.R. Naseer Ahmad is star witness of the occurrence who was examined as P.W.1. He stated that he was working as a labourer with Abdul Aziz son of the deceased for the last about 1-1/2 years. On 23-11-1998 he came at his duty about 9 a.m. Shahid Javed accused asked him that Dil Muhammad Chowkidar is on leave being sick, therefore, he had to work as Chowkidar on which he went back to his house and came back with his bedding at 6 p.m. Zulfiqar accused took his bedding to upper storey of the house. Thereafter, he came out of the room and collapsed with him (Naseer), when Khurshid was present in the kitchen and Zulfiqar accused told him that Naseer is not a strong man. Shahid Javed accused came out of his office and asked him to check the locks of the room of upper storey. Zulfiqar took him up-stair where Khurshid deceased was standing in the stairs. He was pushed by Zulfiqar into the room where Khurshid caught hold of him and Zulfiqar and Khurshid tried to gage his mouth with tape. He resisted and grappled with them. He was thrown on the ground by Zulfiqar and in the course of grappling he gave teeth bite on the hand of Zulfiqar. They tied his legs with Nawar then the accused went down-stairs. He cut the Nawar with scissor and got himself freed and came down in the office where A.R. Sharif was sitting and saw Khurshid Ahmad was standing nearby A.R. Sharif while Shahid Javed and Zulfiqar Hussain accused were firing at him with their respective weapons.
24. During the firing Khurshid Ahmad also received injuries. After causing injuries at the A.R. Sharif all the three accused including Khurshid, in injured condition, went out of the house. A.R. Sharif tried to come out of the room but fell near the door and died at the spot. He went out of the building being freightened and rang the complainant from P.C.O. And informed him about the occurrence. He further stated that during the struggle two buttons of his shirt and wrist-watch was also broken.
25. Accused Zulfiqar was driver of the proprietor while Shahid was Accountant and Khurshid was typist of the firm. The business was owned by Abdul Aziz son of A.R. Sharif deceased who was in America in those days.
26. ' Nasir Ahmad Malik P.W.6 attested the recovery memos. Of articles taken into possession from the spot. Abdul Aziz proprietor of the firm son of the deceased was examined as P.W.8. He narrated the motive for the occurrence for misappropriation of amount as narrated by the complainant P.W.2 in his supplementary statement recorded on 23-11-1998. Ghulam Muhammad P.W.19 attested the recovery memos. Of weapons of offence got recovered by the accused. The remaining witnesses are of formal in nature, and need not to be discussed. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Ddi.PAA and that of Forensic Science Laboratory Exh. PBB.
27. ' The trial culminated into conviction of the accused appellants as mentioned above.
28. ' Zulfiqar appellant has challenged his conviction and sentence through Criminal A. No,770 of 1999 while Shahid Javed has filed Criminal Appeal No, 840 of 1999. The appellants were also convicted under section 13/13-XX-1965 of the Arms Ordinance. They have challenged these convictions through Crl.As. Nos.771 of 1998 and 939 of 1999 respectively which are being decided by separate judgment. The complainant has filed Criminal Revision No,537 of 1999 for enhancement of compensation. The trial Court has sent up Murder Reference No,298-T of 1999 for confirmation of death sentence. All these matters are outcome of one and the same occurrence, therefore, these are disposed of by this single judgment Ch. Muhammad Hussain Chachhar, Advocate for Zulfiqar Hussain and Muhammad Iqbal Bhatti, Advocate for Shahid Javed have addressed arguments on behalf of the appellants while Mr. Ijaz Hussain Batalvi, Advocate has appeared on behalf of the complainant. Mr. A.H. Masud, Advocate appeared for the State.
29. ' It has been argued on behalf of the appellants that Naseer Ahmad P.W.1 was implicated as an accused in the F.I.R. But subsequently he has been made prosecution witness. His presence at the spot has not been proved as the story given by him has not been mentioned in the inquest report; that the complainant P.W.2 has mentioned in his application that he came to know that Khurshid accused was also injured during the occurrence but has not disclosed his source of information.
30. The presence of Naseer Ahmad P.W.1 has been shown by making dishonest improvement. Articles taken into possession from the spot are result of padding; that the post-mortem examination of Khurshid Ahmad was conducted on 25-11-1998 while of A.R. Sharif on 26-11-1998 and it appears that inquest report was not prepared till their postmortem examination; that the motive of occurrence was mentioned in the supplementary statement of the complainant and there were two motives alleged by the prosecution one was that the deceased was Qadiani by faith and he was murdered due to sectarian hatred while the second motive was that the accused misappropriated huge amount of the firm but alleged motive has not been proved by the prosecution during the trial. Mr. Muhammad Iqbal Bhatti, learned Advocate has also raised objection that section 7 of Anti- Terrorism Act was not attracted and the trial before the Court established under the Anti-Terrorism Act of 1997 was coram nonjudice and the case is to be remanded for de novo trial; that the recoveries of alleged weapons of offence have got no evidentiary value as the crime empties were despatched to the Forensic Science Laboratory after causing arrest of the accused and possibility cannot be ruled out that after planting recoveries of weapons of offence, empties were fired by the police and thereafter despatched for its comparison; that sole witness of the occurrence was Naseer Ahmad and his evidence has not been corroborated by any independent source and case of prosecution is highly doubtful and the appellants be acquitted.
31. ' On behalf of the complainant and the State the appeal has been opposed and they have supported the impugned judgment. Learned counsel for complainant has also pressed his criminal revision.
32. ' According to the complainant he received the telephonic information at his office at 7-30 p.m.
33. And thereafter he arrived at the spot and moved written application Exh.P.A. In which he has not nominated any one as accused except Naseer Ahmad and other 3 accused. The application was written by him at the spot and handed over to the Investigating Officer, Yousaf Ali P.W.23 at 8-30 p.m. And on the same application F.I.R. Was recorded at 8-50 p.m. At the Police Station a distance of one k.m. From the place of occurrence. The F.I.R. Is promptly recorded without any deliberation or consultation. Naseer Ahmad P.W.1 himself appeared before the Investigating Officer at 9/9-30 p.m.
34. And got his statement recorded under section 161, Cr.P.C. By giving full details of the occurrence. He narrated in his statement that Khurshid Ahmad accused after _receiving injuries went out of the building, who was admitted in the Mayo Hospital, Lahore through Fayyaz Constable Mujahid Squad.
35. This fact has been proved by Muhammad Yousaf S.-I., Investigating Officer when he arrived in Emergency Ward of Mayo Hospital and found said Fayyaz F.C. Present with the dead body who escorted Khurshid to Mayo Hospital in injured condition. Neither Naseer P.W.1 has any previous enmity with the accused to involve them falsely nor the complainant or the family of the deceased.
36. Articles taken into possession from the spot by the Investigating Officer fully corroborate the prosecution story and the statement of Naseer. He stood to test of lengthy cross-examination and nothing has been brought on record to discard his testimony. He was employee of the firm and natural witness. His statement is confidence inspiring and has been further corroborated by recovery of weapons of offence and positive report of Forensic Science Laboratory Exh.P.B.B. In which the empties taken into possession by the Investigating Officer from the spot tallied with the weapon of offence. The arguments of the learned counsel for appellants that motive has not been proved, has no force as in recent judgment of apex Court, reported as Imtiaz Ahmad v. The State (2001 SCM R 1334), wherein it has been laid down that absence or weakness of the motive is immaterial if the case is otherwise proved by direct evidence.
37. It is also settled law that the conviction can be based on evidence of solitary witness if he is absolutely dependable, natural, confidence inspiring and disinterested. Reliance can also be placed on D Ali Ahmad alias Ali Ahmad Mia (PLD 1962 SC 102), Shah Wali v. The Crown (1971 SCM R 273), Muhammad Ashraf v. The State (1971 SCM R 530), Muhammad Siddique alias Ashraf alias Achhi v. The State (1971 SCM R 659). In criminal cases it is not the number of witnesses which is important but the quality of evidence which is to be considered. Reliance can be made to Allah Baldish v. The State (PLD 1980 SC 225) and Abdul Nasir v. The State (1980 PCr.LJ 898).
38. The prosecution case is further corroborated by M.L.R. Of Zulfiqar accused who according to Naseer Ahmad P.W.1 was injured by his teeth bite and was medically examined on 30-11-1998, the day he was arrested and according to the doctor the duration of his injury was within one week.
39. ' The complainant or P.Ws. Have no ill-will, ulterior motive or enmity to implicate the appellants falsely and to substitute them by letting off the real culprits.
40. ' The argument advanced on behalf of the appellant that provisions of section 7, Anti-Terrorism Act were not attracted, therefore, the trial was coram non judice, has also no force as they had not raised this objection before the trial Judge at the time of framing of charge or at any subsequent date by moving an application under section 23 of the Anti-Terrorism Act. Now it is too late to raise this objection.
41. ' After deep re-appraisal of evidence we are convinced that the prosecution has successfully established its case against both the accused/appellants beyond any shadow of doubt and we do not find any reason to interfere in the conviction recorded or sentence awarded to them by the trial Court.
42. Resultantly their conviction and sentence is maintained. Death sentence of Shahid Javed and Zulfiqar is confirmed. Criminal Appeals Nos.770 of 1999, 840 of 1991 and Criminal Revision No, 537 of 1999 are dismissed.