1. ' BASHIR A. MUJAHID, J.--- Ghulam Hussain son of Muhammad Yagoob, Faryad son of Muhammad Tufail and Iftikhar alias Khara son of Muhammad Din have challenged judgment dated 28-3-2000 passed by Judge, Special Court, ATA Lahore whereby they were convicted and sentenced for committing dacoity in the house of one Muhammad Latif and causing death of Khawar Latif, as under:-
(1) Ghulam Hussain son of Muhammad Yaqoob Shah to death under-section 302, P.P.C. And a fine of Rs,1;00,000, if realized to be paid to the legal heirs of the deceased.
(2) Ghulam Hussain, Faryad and Iftikhar alias Khara to undergo 10 years' R.I. Under section 392, P.P.C. And a fine of Rs,25,000 each, in default thereof to undergo R.I. For six months each.
(3) Ghulam Hussain, Faryad and Iftikhar alias Khara to undergo 10 years' R.I. Each under section 324, P.P.C. And a fine of Rs,25,000 each in default thereof to undergo six months' R.I. Each.
(4) Ghulam Hussain, Faryad and Iftikhar alias Khara to undergo imprisonment for life each under section 7(1) (b) of Anti-Terrorism Act, 1997 and a fine of Rs,20,000 each; in default thereof to undergo R.I. For six months each.
(5) Ghulam Hussain, Faryad and Iftikhar -alias Khara to undergo 7 years' R.I. Each under section 7-B of Anti-Terrorism Act, 1997 and a fine of Rs,20,000 each, in default thereof to undergo R.I. For six months each.
(6) Ghulam Hussain and Faryad to undergo three months each under section 186, P.P.C.
(7) Ghulam Hussain and Faryad to undergo 7 years' R.I. Each under section 13 of Arms Ordinance XX of 1965.
(8) All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the accused/appellants.
2. ' Briefly the facts of the prosecution case are that F.I.R. No,463 of 1999 (Exh.P.A) was registered with Police Station Mughalpura, Lahore on 4-12-1999 at the instance of Anjum Tauqeer P.W.1 with the allegation that he along with his brother Khawar Hanif, Ijaz-ul-Hassan, P.W.2, Suhail Abbas, P.W.3, Deyar, Baqir Ali Mehmood Akhtar were standing in street No,26 Gunj, Mughalpura, Lahore. All of a sudden they heard hug and cry of women from the house of one Muhammad Latif to the effect that some dacoity has been committed in their house and three young persons were running. The accused came from the street No,26 and entered into street No,28. The complainant and the P.Ws.
3. Chased the accused. Khawar Hanif brother of the complainant grappled with one of the accused at Jehangir Road in front of Popular Medical Store. - The remaining two accused started firing. The accused with whom Khawar Hanif had grappled got himself released and fired from Pistol on the head of Khawar Hanif who fell down on the ground and died at the spot. All the three accused ran away towards the Dry Port while firing. The P.Ws. Kept in chasing the accused and raising noise.
4. Meanwhile the police officials and two army men also joined them in chasing the accused. The accused continued firing to create terror in the area. Ultimately two of the accused were arrested by the police from a abandoned house near the Dry Port while the third accused made his escape good. The arrested accused were Ghulam Hussain and Faryad appellants and the accused who succeeded to escape was disclosed as Iftikhar alias Khara. It was also stated by the complainant in the F.I.R. That Ghulam Hussain appellant was the accused who had grappled with Khawar Hand who had also fired at the deceased.
5. ' Muhammad Ikram, S.I. P.W. On receipt of information about the incident arrived at the place where both the accused Ghulam Hussain and Faryad were hiding and caused their arrest and were brought to the place of occurrence where Khawar Hand died and he recorded the statement Exh.P.A of Anjum Tauqeer P.W,1. He prepared the inquest report of Khawar Hanif deceased through memo. Exh.F1.P and sent the dead body for post-mortem examination through Zulfiqar, FC. He collected the blood-stained earth from the spot and four empties P.1 to P.4 through memo. Exh.P.B.
6. On the personal search of accused he took Pistol P.5 from the possession of Ghulam Hussain along with two live bullets P.7 and P,8 through. Memo, Exh.P.0 and Pistol P.6 from the possession of Faryad and -two live bullets P.9 and P.10 through memo. Exh.P.D. He also recovered earring P.11 from his possession through Exh.P.E which was identified by Mst. Samina P.W.4 through identification memo.
7. Exh.P.N. He recorded the statements of the P.Ws. Under-section 161, Cr.P.C. And prepared the site plan of the place of occurrence. On 15-12-1999, he 'arrested Iftikhar alias Ithara accused and got recovered one golden chain and a golden bangle at his instance which were taken into possession through memo. Exh.P.O, which were also identified by Mst. Samina P.W.4 through identification memo. Exh.P.G. Bast worn clothes of the deceased were produced before him which were taken into possession through memo. Exh.P.K. He completed the investigation and submitted the challan in the Court. The trial Court framed the charge which was denied by the laccused and they claimed trial.
8. ' During the trial the prosecution examined as many as 14 witnesses to prove the guilt Of the accused.
9. ' The medical evidence was furnished by Dr. Sarfraz Mehmood P.W.12, who on 5-12-1999 conducted the post-mortem examination on the dead, body of Khawar Hanif and found the following injuries on his person:- (1). A lacerated wound- measuring 2 x 1.5 c.m. Located on the left temporal region. 2 c.m. Behind the outer canphis of left eye 'and 5 c.m. In front of left ear which inverted margins and sounded by tattooing in an area of 10 x 10 c.m.
(2) On exploration of the above cited injury it was found that the projectile after entering through above-stated injury entered into the cranial cavity, traversed through the brain substance damage the cerebrum, cerebellum. 'medulla and pons and itself broken into small pieces. Two of them recovered.
10. ' Dr. Zulfiqar-ul-Hassan, 'P.W.13 had prepared the X-Ray film of the skull of the body of deceased and prepared report Exh.PT.
11. ' The ocular account was furnished by Anjum Tauqeer P.W.1, who was complainant of the case and has supported the version, of the F.I.R. Ijaz-ul-Hassan P.W.2 was eyewitness of the occurrence who was standing with the complainant in the lane and he also chased the accused along with others.
12. Suhail Abbas P.W.3 was also companion of the complainant and Ijaz-ul-flassan. His statement is in line with the statement of P.W.1 and P.W.2. He supported the prosecution story as an eye-witness of the occurrence. Ijaz-ul-Hassan P.W.2 and Suhail Abbas P.W.3 also supported the complainant by stating that Ghulam Hussain was the accused who had grappled with Khawar Hanif, brother of the complainant and fired at him from Pistol. Mst. Samina P.W.4 was the victim of dacoity committed by the accused in her house. She identified golden ornaments recovered from the possession of the accused/appellants. The remaining witnesses are of formal nature and need not to be discussed.
13. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.S and that of Serologist Exh.PT and of F.S.L. Exh.P.S/1. According to the report of Forensic Science Laboratory, two empties out of four taken into possession from the spot nearby the dead body vide memo. Exh.P.B tallied with the Pistols recovered from the possession of Ghulam Hussain and Iftikhar alias Khara appellants.
14. ' The statements of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Ghulam Hussain, appellant/accused in reply to Question No,9 as to why the case against him and the P.Ws,.
15. Deposed against him, replied as under:- "Sister of Faryad accused was married with Manzoor Hussain Shah in the same street where occurrence took place. Manzoor Hussain Shah divorced his sister and I along with Fary ad went to Manzoor Hussain Snah for return of dowry articles where quarrel took place. Womenfolk raised hue and cry. Where from we ran away and while running Manzoor Hussain etc. Fired at us Bullet hit the deceased Khawar Hanif, resultantly Khawar Hanif died. We both were arrested under, suspicion.
16. Being friend of Faryad I was involved in this case. P.Ws. Being residents of the same locality and related to the deceased and being friend of Manzoor Shah have deposed against us and the reply of Faryad appellant to the similar question was as under:- "My sister was married with Manzoor Hussain Shah in the same street and Manzoor Shah divorced her. I alongwith Faryad went to the house of Manzoor for taking back dowry articles where the quarrel took place. The women folk raised hue and cry. We ran away and while running Manzoor Hussain etc. Fired at us. Bullet hit the deceased Khawar Hand, resultantly Khawar Hanif died. We both were arrested under suspicion. Being friend of Fsaryad I was involved in this case. P.Ws. 'being residents of the same locality and related to the deceased and being friend of Manzoor Shah have deposed against us".
17. ' Faryad also produced Nikah Nama Exh.D.A of his sister whose marriage had taken place with Manzoor Hussain Shah resident of street No,9 and divorce certificate Exh.DB in his defence.
18. ' The trial culminated into conviction of the appellants as mentioned above. Ghulam Hussain and Faryad have filed Criminal Appeal No, 415 of 2000 while lftikhar alias Khara has filed Criminal Appeal No,244-J of 2000 against their conviction and sentence. The trial Court has sent up Murder Reference No,256-T of 2000 for confirmation of death sentence of Ghulam. Hussain. All the matters are being decided by this single judgment.
19. ' Learned counsel for the appellants have argued that the appellants have been implicated in the case falsely; that the arrest of Ghulam Hussain and Iftikhar alias Khara is doubtful; that nothing was recovered from their possession at the, place wherefrom they were arrested and recoveries have been planted by 'the prosecution with mala fide intention; that the death sentence awarded to Ghulam Hussain is not proper and legal.
20. ' Conversely, the appeals have been opposed by the learned counsel for the State who has supported the impugned judgment.
21. ' Heard. Record perused.
22. The F.I.R. Was lodged at the spot after apprehending two accused Ghulam Hussain and Faryad. The weapons of offence were also recovered from their possession. The empties taken into possession from the spot tallied with the weapons of offence used by both Ghulam Hussain and Faryad appellants. The ocular account furnished by Anjum Tauqeer P.W.1 who was complainant of the case and brother of the deceased and Ijaz-ul-Hassan P.W.2 and Suhail Abbas P.W.3, which were witnesses of the occurrence, all of them chased both the accused and their presence at the spot cannot be doubted, has been corroborated by the medical evidence against Ghulam Hussain for causing murder of Khawar Hanif. The recovery of weapons of offence and looted articles duly identified by Mst. Sameena, P.W.4 and Mst. Uzma, P.W.11 further supports the prosecution case.
23. There is no motive for false implication or substitution of the appellants. The statements of the prosecution witnesses are confidence inspiring and they are truthful witnesses. Identity of Iftikhar alias Khara was disclosed by the co-accused and after his arrest he also led to the recovery of golden locket and a chain snatched by him in the commission of dacoity which were duly identified by Mst. Uzma, P.W.11. 'The defence side could not prove their innocence or false involvement as alleged by them. The prosecution case has been proved against all the appellants, beyond any shadow of doubt by ocular account, recovery of weapons of offence, recovery of looted articles and the impartial investigation of the case and arrest of two of the accused/appellants at the spot: We do not find any misreading or mis-appreciation of evidence to interfere in the' conviction recorded gains the appellants or the sentence awarded to them by the trial Court. Resultantly, Criminal Appeal No,415 of 2000 filed by Ghulam Hussain and Faryad and that of No,244-J of 2000 filed by Iftikhar alias Khara are dismissed having no force. The death sentence of Ghulam Hussain, appellant is confirmed.
24. ' Murder Reference No,256-T of 2000 is answered in the affirmative.