' TASSADUQ HUSSAIN JILANI, J.--- This judgment shall dispose of Murder Reference No,288/T of 1999 and Criminal Appeal No,650 of 1999, as they arise out of the same judgment, dated 18-6-1999 passed by Ch. Muhammad Shafique, Special Court No,II, established under Anti-Terrorism Act, 1997 vide which having tried the appellant for the murder of Azhar Imam, Constable attempted dacoity and for causing injuries to P.Ws. He convicted him in the following terms:-- ' Convicted under section 302/34, P.P.C. For committing Qatl-i-Amd of Azhar Imam, Constable and sentenced to death.
' Convicted under section 392/34, P.P.C. And sentenced to undergo R.I. For ten years, also to pay a fine of Rs,10,000 in case of its default, to further undergo R.I. For one year.
' Convicted under section 324/34, P.P.C. For causing injuries to Ghaznvi Fatima Bibi and Qurrat-ul- Aain P.Ws. And sentenced to undergo R.I. For two years on each count.
2. The prosecution -story as given in the F.I.R. Exh.P.A./1 registered by Tahir Majeed P. W.16 on the basis of the statement made by Iqbal Hussain P.W.12 and recorded by P.W.4 Muhammad Yousaf A.S.-I. Briefly stated is that on the fateful day, the complainant alongwith Azhar Imam Constable (deceased) armed with G-3 rifle were riding the Motorcycle bearing No,4372/GAK and besides them Muhammad Afzal Constable was also coming along on a Motorcycle bearing No,4377/GAK.
They were on their routine patrol duty. At about 2-15 p.m. They received a wireless message to the effect that two persons armed with pistols had committed dacoity in the Post Office Satellite Town and having boarded rickshaw they had run towards the Katchery Chowk. Having received this information, they also rushed towards the Katchery Chowk to chase the dacoits. As they reached near the Girls College, Settellite Town, finding a rickshaw to be suspicious, they gave it a signal to stop, whereupon the persons riding the rickshaw started firing at them. One shot hit Azhar Imam Constable on the left side of his chest, (who was sitting on the rear seat) he fell down and died at the spot. The complainant stopped the motorcycle with a view to provide aid to Azhar Imam when the persons riding the rickshaw namely Syed Zaigham Abbas and Ali Imran Kazmi (appellant) forcibly picked up the rifle G-3 of Azhar Imam and resorted to indiscriminate firing with this rifle, in consequence of which Fatima P.W.2, Mst. Qurat-ul-Aain (not produced) and Ghazanvi P.W.1 received injuries. Both the afore-referred assailants boarded another rickshaw and ran away towards the East. In the meanwhile, Ihsan-ul-Haq, A.S.-I. P.W.13, Zulfiqar (not produced) and Muhammad Zahoor Constable (not produced) on board in official vehicle No,2698/GAK being driven by Muhammad Akhtar constable reached the spot. All of them chased the rickshaw in which the assailants had fled but the accused again started firing at the police party. They loudly proclaimed that the accused had been encircled and they should behave but they continued firing. The police also fired in self-defence, which resulted in the death of Zaigham Abbas. The rickshaw driver and co-accused Ali Imran in the meanwhile, managed to slip away.
3. Tahir Majeed, S.-I./S.H.O. Police Station Satellite Town, Gujranwala P.W.16, according to whom he was present in the Settellite Town in connection with investigation of case F.I.R. No,729 of 1998 under section 392, P.P.C. On having received a wireless message about the occurrence, proceeded towards Octroi Post, where Iqbal Hussain Constable got recorded his statement Exh.P.A. Which was sent to the police station for registration of formal F.I.R. Having visited the spot, he prepared the injury statement of Zaigham Abbas vide Exh.P.S. And inquest report vide Exh.P.T. The dead body of Zaigham Abbas was sent to Civil Hospital for post-mortem examination. On search of the dead body he found Rs,3,000 (P.15) and a licensed pistol (P.16) from the pocket of his trouser P.6 which was taken into possession vide memo. Exh.P.M., which recoveries were witnessed by S.-I.
Muhammad Akram (P. W.17) and Iqbal Hussain P.W.12. He also searched the rickshaw No,1957/GAK, in which Zaigham Abbas and Ali Imran were riding and he found G-3 rifle P.17 and one pistol 9 mm P.18. He added that the rifle P.17 is the same which belonged to Azhar Imam Constable deceased and had been picked up by Zaigham Abbas after Azhar Imam had been killed. The rifle and pistol were taken into possession vide memo. Exh.P.N. Which was attested by Muhammad Akram, S.-I.
(P.W.17) and Iqbal Hussain Constable (P.W.12). The blood of Zaigham Abbas lying in rickshaw was also secured through a cotton swa b vide memo. Exh.P.Q. And the afore-referred rickshaw was taken into possession vide memo. Exh.P.O. Which was attested by aforereferred attesting witnesses.
Having reached the District Headquarter Hospital, Gujranwala, he prepared the injury statement of Azhar Imam, Constable deceased whose dead body was there and also prepared the inquest report vide memo. Exh.P.X. He also prepared the injury statement of Qurat-ul-Aain Exh.P.Z., of Ghazanvi Exh.P.AA. And that of Mst. Fatima Exh.P. BB . On being moved the concerned doctor through his report Exh.P.CC. (with regard to Mst. Qurat-ul-Aain) and Exh.P.DD (with regard to Mst.
Fatima injured), reported that both these injured were not fit to make statements. Exh.P.EE is the report of the said Medical Officer to the effect that Ghazanvi P.W.1 was fit to make a statement.
Thereafter, he visited the spot and prepared the site plan of the place of occurrence where Azhar Imam had been done to death. He also collected the blood through cotton swabs from the place where in fact Azhar Imam had been killed. He arrested Ali Imran on 1-11-1998 and obtained his physical remand on 2-11-1998, whereafter, he was transferred to another police station.
4. The investigation of this case was taken up by Maqbool Ahmad, S.-I./S.H.O. P.W.15 who having visited the spot got prepared site plan Exh . P. G. , Exh. P . G. /1, Exh. P.H. And Exh. P . H . /1. He recorded the statement of the prosecution witnesses under section 161, Cr.P.C. And on 9-11-1998 he got recovered pistol P.1 alongwith three live bullets P.2/1-3 as also currency notes of Rs,5,000 on the pointation of appellant Ali Imran. These articles were taken into possession vide memo. Exh.P.J. The rough site plan of the place of recovery is,Exh.P.J./1.
5. During the trial, prosecution examined seventeen witnesses including the four doctors and the Investigating Officers. Dr. Mauzoor Ahmad P.W.6 conducted the post-mortem examination of Zaigham Abbas deceased and found the following injury on the dead body:--
(1) Fire-arm lacerated wound 10 x 8 c.m. Into muscle deep on the front of neck middle part. The trachea was lacerated. The carotid and jugular vessels on the right injured and divided (wound of entry).
' The afore-referred injury, according to him was sufficient to cause death in ordinary course of nature.
6. P.W.7 is Dr. Jamil Ahmad who conducted the post-mortem examination of Azhar Imam Constable and found the following injuries on the dead body:--
(1) A fire-arm lacerated wound of entry 1 x 1/2 c.m. With inverted. Margins, oval shape going deep on the outer side of upper part of left side of chest in the anterior axillary fold, 15 c.m. From the midline.
(2) Fire-arm lacerated wound of exit 1/2 x 1/2 c.m. Everted margins circular in shape, going deep back of right chest middle part lateral side 11-1/2 c.m. From midline and 23 c.m. Below the top of right shoulder.
' The injury No,1 according to him was sufficient to cause death in ordinary course of nature.
7. P.W.8 Dr. Mobasher Yaqoob medically examined Ghazanvi (P.W. 1) and found the following injury on his person:-- ' A fire-arm lacerated wound of entry 2 x 1 c.m. Inverted margins back of right upper arm upper part.
' He also examined Mst. Fatima (P.W.2) and noted the following injuries on her person:--
(1) Fire-arm lacerated wound of entry 3 x 2 c.m. Inverted margins back of left chest middle part 5 c.m. From the midline going deep.
(2) Fire-arm lacerated wound of entry 3-1/2 x 1-1/2 c.m. Inverted margins back of left chest 2 c.m.
Above the injury No,1 going deep.
(3) Fire-arm lacerated wound of exit 3-1/2 x 2 c.m. Everted margins front of left chest middle part 2 c.m. Above the nipple.
' The said doctor also medically examined Qurat-ul-Aain and noted the following injury on her person:-- ' Fire-arm lacerated wound of entry 2 x 1-1/2 c.m. Inverted margins back of right chest lower part 1 c.m. From mid line.
7-A. The ocular account in the instant case was furnished by Iqbal Hussain P.W.12 who lodged the F.I.R. He made statement during trial consistent with the version given in the F.I.R. His statement was corroborated by P.W.3 Muhammad Arshad who is the rickshaw driver of Rickshaw No,1957/GAK in which in the second limb of the occurrence the appellant alongwith co-accused Zaigham Abbas deceased were trying to run away. The statements of P.W.3 and P.W.12 were sought to be corroborated by P.W.13 Ihsan-ul-Haq, S.-I. Who having received Wireless message with regard to the dacoity at the Post Office proceeded towards the Katchery Chowk and found that Azhar Imam, Constable by then had been killed . He was told by Muhammad Afzal and Iqbal Hussain P.W.12 that the culprits had proceeded towards East in rickshaw and they had also taken G-3 Rifle belonging to Azhar Imam Constable deceased. As they chased the assailants they were fired upon, the official vehicle in which they were going was hit. They also fired in self-defence which resulted in the death of Zaigham Abbas one of the accused but the rickshaw driver and the accused appellant managed to run away.
8. P.W.1 is Ghazanvi who received a fire-arm injury. P.W.2 is Mst. Fatima who too received fire-arm injuries during the occurrence. P.W.5 is Shoukat Ali who having received two sealed parcels containing blood-stained cotton swabs kept them in safe custody in Malkhana and thereafter, handed them over to Muhammad Munir P.W.10 for onward transmission to the office of the Chemical Examiner, P.W.9 is Ch. Arif Hussain who prepared the site plan Exh.P.G., Exh.P.G./1, Exh.P.H.
And Exh.P.H./1. P.W.10 is Muhammad Munir Constable who is the witness of recovery of pistol P.1 and currency notes of Rs,5,000 on the pointation of Ali Imran appellant. The pistol P.1 was recovered after digging earth and was wrapped in a shopper. P.W.11 is Ashiq Hussain, Head Constable who took the dead bodies of Zaigham Abbas and Azhar Imam to hospital for post-mortem examination.
9. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and in answer to question as to why this case against him, he replied as under:-- "I am innocent, I was student of B-Corn. In those days Zaigham Abbas was my neighbourer who had family terms with us because of both residents of the same locality and belongs to same brotherhood. On 28-10-1998 I handed him over application form to be deposited with the Punjab University and Rs,500 as application fee. He did not turn up till 30-10-1998. On 30-10-1998 I read in the newspaper about the happening of this occurrence in Gujranwala and death of Zaigham Abbas during police encounter. My father is a Police Officer. He was called upon by the S.S.Q., Gujranwala. I cam alongwith my father to Gujranwala in connection with this case as I was suspected in this case due to presence of application forms which were recovered from the pocket of Zaigham Abbas deceased."
10. In support of this appeal, the learned counsel for the appellant made the following submissions:--
(i) That it was an occurrence unseen by the witnesses who appeared during trial and since the police had killed Zaigham Abbas by accident, they concocted this story to protect their own skin;
(ii) that the prosecution has withheld two important witnesses who were named in the F.I.R. Namely Zulfiqar and Muhammad Afzal Constable and the presumption would go against the prosecution;
(iii) that the involvement of the appellant in the first limb of the occurrence i,e, in which Azhar Imam, constable was killed, has not been proved beyond doubt and in the second limb of the occurrence, the fatal shots are attributed to Zaigham Abbas and not to the appellant;
(iv) that there is no independent corroboration to the statement of P.W.12, the only eye-witness;
(v) that the occurrence which preceded the occurrence subject-matter of the instant case i,e, dacoity has not been proved, no F.I.R. Of the dacoity occurrence at Post Office was produced in the evidence and no wireless message, to which a reference has been made in Exh.P.A./1 was never brought on record either;
(vi) that even if recovery of pistol P.3 from the appellant is accredited with truth, the same is not connected with the alleged crime as no empties were recovered and sent to Forensic Science Expert;
(vii) that as per F.I.R., the appellant was injured but surprisingly although the appellant was arrested within 48 hours of the occurrence he was not medically examined qua the injuries, which partly belies the prosecution story; (viii)that if the police party had chased the appellant and the co-accused who has since died, there was no question of appellant's escaping from the spot;
(ix) that the appellant has given a reasonable explanation of his having been involved in the instant case and the prosecution has failed to prove its case beyond any reasonable doubt to sustain the conviction on a capital charge.
11. The learned counsel appearing for the State assisted by the learned counsel for Azhar Imam deceased's father, have defended the impugned judgment by submitting that it was a daylight occurrence; that the F.I.R. Was lodged promptly; that the accused appellant was specifically named in the F.I.R.; that the story given in the F.I.R. Was proved in Court through P.Ws.1 to 3, 12 and 13 and there was no reason why the appellant should be falsely implicated. He further explains that number, nature and dimension of the injuries on the person of Azhar Imam, constable, clearly indicate that the said injury was caused with pistol fire, as alleged by the prosecution and the injury received by Zaigham Abbas is rifle injury which further corroborates and strengthens the prosecution case.
12. Heard.
13. Admittedly, it was a broad daylight occurrence on a working day and in a busy street of the city concerned. The F.I.R. Was lodged without much delay and both the accused Zaigham Abbas (since killed) and Ali Imran appellant were specifically named. These factors by itself would rule out the possibility of false implication or mistaken identity. The maker of the F.I.R. Iqbal Hussain P.W.12 is a police constable. He is the one who was riding the motorbike and on the rear seat of Azhar Imam, Constable (deceased) was sitting carrying Rifle G-3. While appearing in Court, he made statement consistent with the version given in the F.I.R. He was subjected to lengthy cross-examination but despite that his testimony could not be shaken.
14. The argument of the learned counsel for the appellant that since no identification parade was held, therefore, the identity of the accused is not free from doubt, is not tenable, firstly because P.W.12 has specifically named the appellant in the F.I.R. And during trial while being cross- examined, his identifying Ali Imam appellant was not even challenged. Similarly, even the P.W.13 who had also specifically named Ali Imran appellant was not questioned on this aspect and it was never suggested that these witnesses did not know the appellant personally. The plea that statement of P.W.12 Iqbal Hussain attributing firing at police party to the appellant remains uncorroborated, therefore, the prosecution case is not free from doubt, is of no avail to the defence, because it is a settled proposition of law that it is not the quantity but it is quality which weighs with the Court while appreciating the evidence. P.W.12 Iqbal Hussain is admittedly not inimical towards the appellant. Not even a remote suggestion was made to him during cross-examination as to why the appellant should be falsely implicated. In such a circumstance, conviction can be based on the solitary statement of a witness who is disinterested, has no enmity with the accused, is natural and his testimony inspires confidence. This is in line with the law consistently laid down by this Court as also by the august Supreme Court. In Riaz Hussain v. State 2001 SCM R 177, relying on plethora of precedent case-law, the august Supreme Court at page 189 observed as under:-- "There is no force in the contention that conviction could not be awarded on the basis solitary statement of Mst. Manzooran as it is quality of evidence and not quantity which is to be considered.
The conviction can be based on the evidence of a solitary witness. In this regard we are fortified by the dictum laid down in PLD 1980 SC 225, 1971 SCM R 659, 1969 SCM R 76, 1971 SCM R 273 and 1995 SCMR 1979. As mentioned hereinabove the statement of Mst. Manzooran finds corroboration from medical evidence, motive surrounding circumstances and absconsion irrespective of her inter se relationship with deceased (PLD 1979 SC 144; 1975 Cr.LJ (D.B.) 218."
Secondly, the statement of P.W.3 Muhammad Arshad the rickshaw driver who was carrying the appellant and co-accused Zaigham Abbas (deceased) when they were trying to flee and that of P.W.13 Ihsan-ulHaq S.-I. Who (reached the spot having received wireless message) chased the co- accused and the appellant alongwith Iqbal Hussain P.W.12 would be relevant and of corroborative value. Both of them stated that the appellant and co-accused were being chased and both had fired at the police party. Statement of P.W.12 qua the role attributed to appellant stands fortified by the testimony of these witnesses. The appellant and co-accused Zaigham Abbas (since dead) shared the common intention as both were trying to flee and resist their arrest. The attempt by the learned counsel for the defence to marginalize the appellant's liability and to put it in a water-tight compartment would not be tenable in law as the chain of event starting from the receipt of wireless message that a dacoity had taken place to the initial chase by P.W.12 Iqbal Hussain and Azhar Imam deceased, followed by the final chase by Iqbal Hussain P.W.12, Ihsan-ul-Haq P.W.13 and others would reflect that the whole occurrence consisted of various limbs and the evidence of the witnesses of the said occurrence form part of the same chain of res gestae and testimony of each of those witnesses would be relevant and admissible. This is the ratio laid by the Supreme Court in the case Riasat Ali and another v. The State PLD 1991 SC 397 wherein at page 399 it was held as under:-- "He reported that he had seen to his own father, another eyewitness who supported him. There was no such enmity between the parties so as to imply that this witness or his father would falsely implicate the appellants. The criticism that his statement to his father was not relevant or admissible is also not valid because the timing and locale of the occurrence is such that it must have made various links in the same chain of res gestae and thus, the evidence was admissible."
15. The argument that the appellant cannot be saddled with the liability of having shot at Azhar Imam, Constable (deceased) as the firing was being allegedly made both i,e, by him and Zaigham Abbas deceased at the police party and it is not clear as to whose fire proved fatal, overlooks the fact that in the instant occurrence both the accused were armed with pistols, both were firing, both were trying to flee and avoid the arrest and, therefore, both shared the common intention. Even otherwise, in that anxious moment of tension and hot pursuit, it was quite difficult to specify as to whose pistol shot ultimately proved fatal. The circumstance reflect commonality of interest and intentions. Both of them would be liable for the fire which caused murder.
16. The non-recovery of empties would not be fatal in the facts and circumstances of this case. The ocular account is corroborated by the medical evidence in so far as the time, locale and dimension of the injuries received by the deceased Azhar Imam and Zaigham Abbas are concerned. The nature of injuries received by Azhar Imam squarely reflect that it was the injury which could have been caused by a pistol shot, whereas, the dimension of injury on the person of Zaigham Abbas (was 10 c.m. x 8 c.m.) shows that it was a rifle injury. The doctor also observed that "an empty jacket of the bullet recovered from the right chest, sealed and sent to the police. The right clavical was found fractured. Right pleura, larynx and treachea, right lung and blood vessels on the right side were found injured". This obviously was the fatal injury which as per prosecution case was caused by police party chasing the assailants and Zaigham Abbas deceased. The argument of the learned counsel for the defence that Azhar Imam could have received fire-arm injury from the police party itself, therefore, is without substance.
17. The pistol P.1 was got recovered by the appellant himself after digging out the earth from the place which, it is in evidence was in his exclusive knowledge. The said, pistol has not been connected with 'the offence, inasmuch as, no empties were recovered and sent to the Forensic Science Laboratory but the non-recovery of empties by itself would not be fatal for the prosecution in the facts and circumstances of this case. It is a settled proposition of law that recovery of weapon of offence or empties is not the mandatory requirement of law but is a circumstantial piece of evidence which tends to corroborate the other pieces of evidence i,e, ocular account, motive, medical evidence and any other circumstance which may deem relevant. In the presence of direct evidence, credibility of which has withstood the test of challenge through cross- examination, the absence of this corroborative evidence would not IG be fatal. This lapse may be on account of the fact that firing was made when the rickshaw was on the move on a thoroughfare and empties could not be recovered or it could be a dishonest omission as it is in evidence that the appellant is admittedly the son of a serving Police Officer.
18. For what has been discussed above, we are of the considered view that prosecution has proved its case beyond any reasonable doubt to sustain conviction on a charge under section 302, P.P.C.
For committing the murder of Azhar Imam. However, the learned trial Court did not award the compensation which is a mandatory requirement. We put learned counsel for the appellant on notice qua this aspect and he very fairly conceded that it is a mandatory requirement. Accordingly, while maintaining the conviction and sentence, we hold that the appellant shall also be burdened with Rs,30,000 as compensation, which if recovered shall be given to the legal heirs of deceased Azhar Imam, in default of which he shall undergo R.I. For six months.
Conviction of the appellant under section 324, P.P.C. For causing injuries to Ghazanvi and Mst.
Fatima is also tenable as besides the P. W.12 Iqbal Hussain, the afore-referred injured appeared as P. W.1 and P.W.2 to testify having received the injuries in question. However, the conviction under section 324, P.P.C. For causing injuries to Qurat-ulAain is not proved beyond doubt as Qurat-ul-Aain did not appear as a witness. Conviction on her count is, therefore, set aside.
Conviction under section 392, P.P.C. Is not maintainable because direct evidence of robbery is lacking and Zaigham Abbas who I took the G-3 rifle was killed during the occurrence. Conviction under section 392, P.P.C. Is, therefore, set aside.
19. Resultantly, the Criminal Appeal No,650 of 1999 in so far as conviction under section 392, P.P.C.
And conviction under section 324, P.P.C. On count of having caused injuries to Qurat-ul-Aain, is allowed. The criminal appeal in so far as, it seeks to challenge conviction under section 302, P.P.C.
For causing death of Azhar Imam with modification qua sentence referred to above, as also appeal against conviction under section 324, P.P.C. For having caused injuries to Ghazanvi and Mst. Fatima is dismissed. Murder Reference is answered in affirmative.
Sentence of death is confirmed.