MUHAMMAD NAWAZ ABBASI, J.- Gohar Ali son Afridi, appellant in the present appeal along with two others namely Abuharera son of Ghulam Muhammad and Arshad Khan son of Bacha Gul were tried for the charges under Section 302/398/34, PPC read with Section 7 of Anti-Terrorism Act, 1997, by the Special Court established under Anti-Terrorism Act, 1997, for Rawalpindi Division and Islamabad Capital Territory. The learned trial Judge having found the appellant and his co- accused guilty of the charge convicted and sentenced them vide judgment dated 4.2.2000 as under-
(1) Under Section 398/34, PPC.
Rigorous imprisonment for ten years to each of the appellant.
(2) Under Section 302/34, PPC.
Gohar Ali appellant was sentenced to death whereas remaining two accused namely Abuharera son of Ghulam Muhammad and Arshad Khan son of Bacha Gul were acquitted from the said charge.
(3) All the three accused were acquitted under Section 7 of the Anti-Terrorism Act, 1997.
2. Gohar Ali appellant has challenged his conviction and sentence through Criminal Appeal No. 40- T of 2000.
3. The learned Trial Judge having found defects in the investigation issued show-cause notice to Muhammad Arif Mahmood, Sub-Inspector, who investigated the case and framed charge against him for committing an offence under Section 27 of Anti-Terrorism Act, 1997. The Sub-Inspector denying the charge submitted explanation without producing any other evidence that the defects in the investigation if any was due to lack of experience and was not intentional and deliberate. The learned Judge being not satisfied with the explanation offered by the Sub- Inspector vide judgment dated 6.7.2000 convicted and sentenced him under Section 27 of the Anti-Terrorism Act, 1997, to one year's R.I. With a fine of Rs.10,000/- and in default of the payment of fine to undergo R.I.
For two months. Muhammad Arif Mahmood, Sub-Inspector has challenged his conviction and sentence through Criminal Appeal No. 288 of 2000. Bashir Ahmad complainant of the case has challenged the acquittal of Abuharera son of Ghulam Muhammad and Arshad Khan son of Bacha Gul from the charge under Section 302, PPC and 'the acquittal of all the accused under Section 7 of the Anti-Terrorism Act, 1997, and also prayed for the payment of compensation under Section 544- A, Cr.P.C. The three criminal appeals bearing Nos. 40-T/2000, 74- T/2000 and 288-T/2000 are proposed to be disposed of through this single judgment.
4. Briefly the facts in the background as narrated in the complaint Ex.PA lodged by Bashir Ahmad, on the basis of which the case was registered vide FIR Ex.PA/1 at Police Station Pirwadhi, District Rawalpindi, are that on 16.3.1998, Atta Muhammad deceased in the company of the complainant PW-7 and Ghulam Muhammad PW-8 went to Raja Bazar at 7-00 p.Rr. To collect the Committee and after going the needful, while putting the amount of the Committee in a cotton bag, travelled for their home through a passenger Suzuki and on de-boarding from near Anarkali Hospital, Pirwadhai proceeded towards their house and when they reached near the house of the deceased, the accused namely Gohar Ali son of Afridi, Abuharera son of Ghulam Muhammad and Arshad Khan son of Bacha Gul suddenly grappled the deceased from behind to snatch the bag containing money and on the resistance of the deceased, Gohar Ali appellant while taking out pistol fired successive shots at the deceased, as a result of which the deceased sustained injuries on different parts of the body. On raising hue and cry by the complainant and Ghulam Muhammad, the police party having reached there apprehended the accused at the spot with pistol. Haji Ata Muhammad in an injured condition was taken to the Hospital but he succumbed to the injuries at mid night in the Hospital. The Sub-Inspector having recovered the pistol used by the appellant as weapon of offence took the same into possession. He also recovered five crime empties from the spot. The statement Ex.PA of the complainant was recorded in the Hospital on the basis of which the case was registered at Police Station Pirwadhai.
5. Dr. Muhammad Shafiq PW-5 medically examined Haji Atta Muhammad shortly after the occurrence and found the following injuries on his person:-
(1) Wound of entry of fire-arm in front of abdomen, 6 c.m. From umbilicus in a straight line on right side, edges were lacerated, inverted and slightly black.
(2) Wound of entry of fire-arm 0.5 c.m. x 0.5 c.m. In front of upper abdomen, on left side just near to xiphisternum, edges were lacerated and inverted, mild blackening was present.
(3) Wound of entry of fire-arm 0.5 x 0.5 c.m. In front of right thigh, 14.5 c.m. Below in genial region, edges were lacerated inverted and blackish.
(4) Wound of entry of fire-arm .75 x .75 c.m. At Ontario medial aspect of left arm, 14 c.m. Below tip of shoulder joint, edges were lacerated and inverted. No blackening was present.
(5) Abrasion 1.5 x 1 c.m. At left chest, 3 c.m. Above left nipple, corresponding holes were present on shirt, Shalwar, burian and sweater, which were handed over to police after signing, patient was referred to surgical under unit for management. All the injuries were kept under observation.
6. The same doctor on 17.3.1998 at 3-30 a.m. Examined Gohar Ali son of Afridi accused and found the following injuries on his person:-
(1) Contused swelling 3 x 2 c.m. Just below right eye.
(2) Swelling 4x2 c.m. At left maxillary region.
(3) Slant deeper in colour 8x4 c.m. At Ontario medial side of middle of left arm.
(4) Slant red in colour 4x6 c.m. At outer side of right arm.
(5) Swelling 3x2 c.m. At unless side of left writs, movements were normal.
7. Dr. Zain-ul-Abdeen PW-10 conducted the post-mortem examination on the dead-body of Haji Ata Muhammad on 17.3.1998 at 11-30 a.m. And traced the following injuries on his person:-
(1) A circular lacerated wound of entry of fire-arm, with inverted margins and .5 x .5 in size, present on the front of chest, about 12 c.m. Infero medial to left nipple.
(2) A lacerated wound of entry of fire-arm with inverted edges and .5 x .5 c.m. In size, present over right size of the abdomen, about 5 c.m. Laterals to umbilicus.
(3) A lacerated wound of entry of fire-arm .75 c.m. x .75 c.m. With inverted edges present over the medial aspect of left arm.
(4) A lacerated wound of entry of fire-arm circular with inverted edges measuring .5 x .5 c.m.
Present over the anterior aspect of right thigh, about 22 c.m. Interior to the right anterior/superior iliac spine.
(5) A lacerated circular wound of entry of fire-arm with inverted edges present over the anterior aspect of right thigh, just above knee with the size of .5 x .5 c.m.
(6) A lacerated wound of exit of fire-arm .75 c.m. .75 c.m. With averted margins present over the postero medial aspect of the right thigh.
(7) A vertical linear, midline stitched surgical incision present in front of the abdomen.
8. Noor Muhammad PW-1 identified the dead-body of Haji Ata Muhammad at District Headquarters Hospital, Rawalpindi. Muhammad Afzal PW-2 Moharrir of the Police Station Pirwadhai was given two sealed parcels containing pistol and the empties recovered from the accused at the spot by Muhammad Arif Mahmood, Sub-Inspector, who kept the same in Malkhana till 25.3.1998 and handed over the same to Muhammad Nawaz for onward transmission to Forensic Science Laboratory at Lahore. Imtiaz Ali PW-3 recorded FIR Ex.PA/1 on the basis of complaint Ex.PA sent by.
Muhammad Arif Mahmood, Sub-Inspector to Police Station. Muhammad Nawaz, PW-4 took the sealed parcels of crime empties and the pistol- to Forensic Science Laboratory at Lahore. Qamar- ud-Din, draftsman PW-6 on the direction of Police and pointation of the PWs having taken rough notes prepared site- plans Ex.PD an d Ex.PD/1 and handed over the same to Investigating Officer.
Bashir Ahmad PW-7 complainant of the case and Ghulam Muhammad PW-8 have furnished the ocular account of the occurrence. Umar Hayat PW-9 delivered the last worn clothes of the deceased and a Phial contained lead to the Investigating Officer. Muhammad Arif Mahmood, the Investigating Officer of the case was examined as PW-11.
9. The accused in their statements under Section 342, Cr.P.C, denied the charge and pleaded false implication.
10. Learned counsel for the appellant namely Gohar Ali son of Afridi in Cr. Appeal No. 40-T/2000 contended that as per prosecution story, the accused were apprehended at the place of occurrence in the street by the police officials but no person from the said street was cited as a witness and that the accused being strangers to the witnesses were required to be properly identified as the mere apprehension at the spot in the street would not be an evidence to connect them with the commission of offence. Learned counsel argued that the crime empties were collected from the place of occurrence and at the same time, the weapon of offence was recovered from the accused at the spot, therefore, the possibility of tampering with the empties being not ruled out in the given situation and the report of the fire-arm Expert regarding the matching of the crime empties with the weapon of offence in question would be of no evidentiary value, It was also argued that the cash amount in question was not taken into possession as case property, which would negate the prosecution story that the deceased was done to death while committing robbery.
11. Learned State counsel has contended that it was a day light occurrence and the accused haying been apprehended at the spot were not required to be put to identification parade. Learned counsel next submitted that the weapon of offence and crime empties were recovered genuinely and taken into possession through separate parcels at the spot, therefore, neither there was any possibility of tampering wit the evidence of recovery nor there was any possibility of false implication of the accused.
12. We have heard the learned counsel for the parties at length and perused the record with their assistance. The appellant and his co-accused belonging to the Province of NWFP were strangers to the PWs and the deceased. They were not even temporarily residing in the street in which the fateful occurrence had taken place or at least in the area of Police Station Pirwadhai and their presence at the place of occurrence remained explained. They eye-witnesses in the company of the deceased traveled from Raja Bazar to Pirwadhai in a Suzuki and were proceeding towards their residence together when the accused made an attempt to snatch the bag containing cash from the deceased at the short distance from his residence and on his resistance, Gohar Ali appellant while picking out his pistol fired successive shots at the deceased. The appellant along with his co- accused was apprehended at the spot by Muhammad Arif Mahmood, Sub inspect of the Police Station Pirwadhai and the weapon of offence used by him was taken into possession. The crime empties were also collected from the spot and taken into possession by the Sub- Inspector. The witnesses who were strangers to the appellants have no reason to make a false statement against the accused in the case of capital punishment. They eye-witness's account being entirely independent and natural was further supported by the arrest of the appellant with weapon of offence at the spot, therefore, the minor discrepancies and contradictions as pointed out by the learned counsel for the appellants would not be material to disbelieve the unimpeachable evidence of the eye-witnesses.
The argument of the learned that in the light of the allegation that the co-accused of the appellant grappled with the deceased at the time when the appellant fired at the deceased, therefore, they would must sustain the injuries would apparently appeal to mind but there is nothing on record to suggest that at the time of sustaining the injuries by the deceased, ha was still in the clutches of the co-accused of the appellant, It seems that the co-accused of the appellant probably grappled with the deceased with the purpose to snatch the bag and in consequence to the resistance of the deceased, the appellant while picking-up a pistol fired at the deceased. The circumstances under which the occurrence took place would not suggest that the same did not take place in the manner as stated. The perusal of the evidence would show that the story was narrated by the eye- witnesses giving the detail of occurrence without any addition or omission or improvement. We, therefore, do not find any defect in the findings of guilt of the appellants arrived at by the learned trial Judge. Learned counsel for the appellants also has not been able to point out any mitigation in favour of the appellants for lessor punishment. The appellants while committing the offence of robbery committed the murder of the deceased and, therefore, would not deserve any leniency in the matter of sentence. Consequently, we while maintaining the conviction and sentence awarded to Gohar Ali appellant by the learned trial Judge dismissed his appeal.
13. Taking into consideration the case of the respondents namely Abuharera son of Ghulam Muhammad and Arshad Khan son of Bacha Gul, who were issued notices under Section 439(c), Cr.P.C, we find that the said respondents were convicted and awarded sentence under Section 395, PPC for committing an offence of robbery. Learned counsel for the appellant in Cr. Appeal No. 74- T/2000 filed by Bashir Ahmad complainant of the case against the acquittal of the said respondents from the charge under Section 302, PPC contended that the said respondents being equally responsible for the murder of the deceased Haji Ata Muhammad were wrongly acquitted.
The perusal of the evidence would show that the appellants undoubtedly were party in committing the offence of robbery but they Were empty handed and there was no evidence to establish their common intention to commit the murder of the deceased on the resistance put to. The accused.
We find that picking out of pistol and firing upon the deceased Haji Ata Muhammad was an individual act of Gohar Ali son of Afridi appellant, therefore, learned trial Judge has rightly acquitted the above-named two accused from the charge under Section 302, PPC and convicted them under Section 395, PPC. We for the foregoing reasons discharge notice under Section 439(c), Cr.P.C, issued to the respondents in Cr. Appeal No. 74- T/2000.
14. We find that the learned trial Judge while pointing out the defects in the investigation, (a) the Investigating Officer had not prepared the memo, of recovery of cash amount and (b) had not take into possession the blood-stained earth from the place of occurrence charged him for the commission of an offence under Section 27 of the Anti-Terrorism Act, 1997, and having formed an opinion that the Sub-Inspector intentionally, deliberately and dishonest caused defects in the investigation for the benefit of the accused convicted him under Section 27 of the Anti-Terrorism Act, 1997, and sentenced him to one year's R.I. With a fine of Rs.1000/- and in default of the payment of fine to undergo R.I. For two months through separate judgment dated 6.7.2000, which is under challenge through Cr. Appeal No. 288-T of 2000. Learned counsel for the appellant in the said appeal has contended that the explanation offered by the Investigating Officer for the defects in question in the investigation was not properly considered by the learned trial Judge. Learned counsel submitted that nonpreparation of recovery memo, was in good faith and would only be a bona fide mistaken as the amount was safely handed over to the legal heirs of the deceased and that non-taking into possession the blood-stained earth from the spot would be an innocent omission or negligence due to lack of experience as the case may be, but was not an intentional omission. Learned counsel submits that the appellant with the crime weapon was arrested by the Sub-Inspector at the spot and the eye-witnesses have categorically supported the prosecution story including the arrest of the accused by the Sub-Inspector at the spot in tooth and nail and if by mistake the blood-stained earth was not taken into possession from the spot, it would not materially effect the prosecution case.
15. We having considered the matter are of the view that the omission on the part of the Investigating Officer if any in the investigation was not in bad faith or for any extraneous consideration. The Investigating Officer appears to be honest person as he handed over the cash safely to the legal heirs of the deceased and knowing that the appellant was armed with pistol, apprehended him at the spot darely, therefore, he had no intention to extend any benefit to the accused through the omissions in question. We, therefore, find that the explanation offered by the appellant was more than enough to show the bona fide of Sub- Inspector. We consequently while setting side the conviction and sentence awarded to Sub-Inspector Muhammad Arif Mahmood (appellant in Criminal Appeal No. 288/2000) allowed the said appeal.