1. ' BASHIR A. MUJAHID, Muhammad Azam son of Ghulam Sarwar, Haji Bashir Ahmad son of Hidayat Ali, Muhammad Ali alias Chitta son of Faqir Muhammad, Malik Ansar son of Faiz Muhammad and Shahzad son of Muhammad Alam have challenged judgment dated 12-7-2000 passed by learned Additional Sessions Judge/Judge, Special Court Suppression of Terrorist Activities, Lahore, whereby Haji Muhammad Azam was convicted under section 302(b), P.P.C. For commission of murder of Karamat Ali and sentenced to death. He was further ordered to pay compensation of Rs,50,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default thereof to undergo six months simple imprisonment. He was further convicted under section 337-F6, P.P.C. For causing injuries to Shaukat Ali, P.W. And sentenced to 5 years rigorous imprisonment and to pay Daman.
2. Haji Bashir was convicted under section 337-D, P.P.C. And sentenced to five years rigorous imprisonment and Arsh to the tune of 1/3rd of Diyat amount to be paid to the legal heirs of Karamat Ali deceased. Muhammad Ali alias Chitta, Shahzad and Ansar appellants were convicted under section 302, P.P.C. And sentenced - to imprisonment for life and were ordered to pay compensation of Rs,50,000 to the legal heirs of deceased, in default thereof to further undergo six months simple imprisonment. All the appellants were also convicted under section 148, P.P.C. And sentenced to six months rigorous imprisonment.
3. ' Briefly the facts of the prosecution case are that F.I.R. No,76 of 1998 (Exh.P.A/1) was registered at Police Station Lorry Adda 26-5-1998 at 12-35 night on the statement Exh.P.A of Shaukat Ali, P. W.1 recorded by Muhammad Awais, S.I. P.W.8 at Emergency Ward of Mayo Hospital, Lahore at 12-05 night, about the occurrence which took place on 25-5-1998 at 10-30 p.m. At General Parking of Lorry Adda. It was stated by the complainant that he was a transporter and at 10-30 p.m. He along with Zulfiqar alias Bhutto, Ch. Karamat Ali son of Jamal Din, Riasat Ali son of Meraj Din, Safarish Ali and Haji Taj Din arrived at General Parking of Lorry Adda to get their bus repaired and parked the bus in front of shop (Kuku Autos) of Haji Muhammad Azam, appellant, when Haji Azam came and directed him to remove the bus from the spot and he flared up and became furious and went away by extending threats to teach a lesson for not removing the bus and came armed with rifle.
4. 222 bore while Haji Bashir was also armed with rifle .222 bore along with three unknown persons armed with fire-arms. Haji Azam raised Lalkara that Ch. Karamat All be caught lesson for not removing bus and nobody should go alive on which all the accused started firing at the complainant party. Haji Azam fired at Ch. Karamat Ali hitting on front side of his belly and second fire hit at left thigh of the complainant while Haji Bashir fired at Zulfiqar hitting his left thigh., All the injured fell on the ground and the accused fled away while firing. The injured were removed to Mayo Hospital where Ch. Karamat Ali succumbed to the injuries on the way.
5. ' Muhammad Arif, S.I. P. W.6 after receiving the information regarding the occurrence arrived at Emergency Ward, Mayo Hospital, Lahore on, 25-5-1998 at 11-45 p.m. And after obtaing opinion of the doctor through applications Exh.P.M about the condition of Shaukat Ali, P. W.1. Whether he was fit to make statement he recorded the statement Exh.P.A and sent the same for recording the formal F.I.R. Which was recorded by Muhammad Younas, P.W.8. He also moved an application Exh.P.N to inquire about the condition of Zulfiqar, P.W. Whether he was fit to make statement and who was stated to be not fit to make statement. He took the dead body of Karamat Ali into possession and prepared inquest report through memo. Exh.P.P and injury statement Exh.P.Q and handed over the dead body for post-mortem examination. He himself arrived at the place of occurrence and took the bloodstained earth into possession through memo. Exh.P.F and three empties of rifle 222 P.1 to P.3 through memo. Exh.P.D. He also took into possession three empties of pistol .30-bore P.4 to P.6 through memo. Exh.P.E. Both these recovery memo.s. Were attested by Safarish Ali and Riasat Ali, P.W.4. Last worn-clothes of the deceased were also produced before him which were taken into possession through memo. Exh.P.S. He also took into possession the blood-stained clothes of Shaukat Ali, P.W.1 through memo. Exh.P.J and that of Zulfiqar Ali, P.W. Through memo. Exh.P.K. He got prepared the site plan of the place of occurrence. On 12-6-1998, he arrested Haji Muhammad Azam, Shahzad and Haji Bashir Ahmad accused. On 20-6-1998, Haji Muhammad Azam accused led to the recovery of rifle 222 P.7 and three live cartridges P.9 to P.11 and licence P.8 which were taken into possession through memo. Exh.P.G. On 21-6-1998, Shahzad accused led to the recovery of pistol .30-bore P.12 and two live cartridges P.13 to P.14 and licence P.15 which were faken into possession through memo. Exh.P.H. He also obtained warrants for arrest of accused Ansar and Muhammad Ali on 2-7-1998 who were not arrested and proceedings under section 87/88, Cr.P.C.
6. Were initiated against them and they were declared proclaimed offender on 22-7-1998. The investigation of the case was got transferred by the accused party which was entrusted to Mubarak Iftikhar Warraich, D.S.P./D.W.4 and he declared the accused Haji Muhammad Azam innocent and the complainant being dissatisfied with the investigation filed a private complaint Exh.P.B on 19-9-1998. Challan case and the private complaint were consolidated and proceedings were taken in complaint Exh.P.B and both were disposed by the impugned judgment.
7. ' The prosecution examined as many as 17 witnesses to prove the guilt of the accused.
8. ' The medical evidence was furnished by Dr. Muhammad Aslam Joya, P.W.12, who on 25-5-1998 medically examined Shaukat Ali P.W.1 and found the following injuries on his person:-
(1) A lacerated punctured wound .5 x 1 c.m. On the outer aspect of the right thigh about 10 c.m.
9. From the anterior superior iliac spine with swelling deformity of the area and restriction of movement of right joint, with collar of abrasion, D.N.P. (Depki not probed).
(2) Lacerated punctured wound 5 x 3 c.m. On the medial surface of the right thigh about 8 c.m.
10. Below parietal area with everted edges. D.N.P.
(3) A lacerated wound 1 x .5 c.m. On the - right parietal region of the scalp. D.N.P.
11. ' On the same day, he also medically examined Zulfiqar P.W.2 and found the following injury on his person:- ' A lacerated punctured wound 4 x 4 c.m. On the right lumbar region lateral aspect, penetrating the abdominal cavity with blackening of the margins of the wound.
12. ' Dr. Imran Jawad, P.W.13 on 26-5-1998 at 9-15 a.m. Conducted the postmortem examination on the dead body of .Ch. Karamat Ali and found the following injuries on his body:- (1-A) A circular lacerated wound .5 x .5 c.m. With inverted margin having collar of abrasion all around present on the right side of front of abdomen. 4 c.m. Right of midline. 7 c.m. From umbilicus at 11.00 O'clock position.
13. (1-B) A lacerated wound with everted margin .3 x .8 c.m. On the left side of upper part of buttock. 10 c.m. From left anterior superior iliac spine. 44 c.m. From left axilla.
(2) An almost circular lacerated wound 1 x.1 c.m. On the inner surface of upper lip on right side. 2 c.m. Medial from right angle of mouth.
(3) A lacerated wound 4 x 1.5 c.m. On the top of left side of skull. 10 c.m. From left ear.
(4) A lacerated wound 3 x 1 c.m. On the back of right side of skull. 12 c.m. From right ear. 3 c.m.
14. Above posterior occipital protuberance.
15. ' The ocular account was furnished by Shaukat Ali, who was complainant of the case. He supported the version as contained in complaint Exh.P.B. He was injured in the same occurrence. He also narrated the motive for the occurrence. Zulfiqar P.W.2 was also injured in the same occurrence. He supported the version of the complaint. Riasat Ali P.W.4 was also eye-witness of the occurrence. His statement is a line with the statement of Shaukat Ali, complainant and of Zulfiqar, injured witnesses.
16. Farman Ali, A.S.I./ P.W.5 had produced the blood-stained clothes of Shaukat Ali before the Investigating Officer and of Zulfiqar, P.W.2 through Exh.P.K: He attested both the recovery memos.
17. Wahid Ishaque, P.W.7 arrested Muhammad Ali alias Chitta accused on 25-5-1999 Muhammad Awais, P.W.8 recorded the formal F.I.R. Exh.P.A/1. Khalid Farooq, Moharrar/Head Constable P.W.9 kept the sealed parcels of weapons of offence in police Maalkhana. Muhammad Younas, A.S.I/P.W.10 took the sealed parcels and delivered the same with the office of Forensic Science Laboratory and Chemical Examiner at Lahore. Abdul Ghafoor, F.C. P.W.14 had escorted the dead body for post- mortem examination. Muhammad Akram, F.C. P.W.15 had delivered the sealed parcel containing blood-stained earth to .The office of Chemical Examiner. Muhammad Naeem, P.W.16 also delivered the sealed parcels of rifle 222 at the office of Forensic Science Laboratory at Lahore. Akhtar Hussain, P.W.7 was entrusted the warrants of arrest of Ansar accused who was not traceable and was got declared proclaimed offender.
18. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.KK and that of Serologist Exh.P.LL.
19. ' The statemeots of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Muhammad Azam appellant in reply to Question No,11 as to why the case against him, he replied as under:- " The reason of this occurrence is that Karamat Ali deceased came in a Lorry and parked the same in front of my shop. I objected to this parking for the reason that my own lorry was about to come and for that reason hot words were exchanged between me and the deceased Karamat Ali who went away from the spot while murmuring something in his mouth. After two hours the deceased Karamat, Zulfiqar, Shaukat and 6/7 other persons armed with Sotas and fire-arms weapon came at my shop and they started raising Lalkaras and firing. Shaukat Ali, Karamat Ali , and Zulfiqar who were armed with Sotas entered into my shop and started beating me with their respective Sotas and entered into my shop and dragged me out from my shop and again started assaulting and beating me. On that moment some of my servant took my licensed rifle from my shop and started firing in self-defence of my person and property in order to clear away the said8/9/10 persons. I became unconscious and sometime afterwards somebody took me to the Mayo Hospital but as in the hospital the complainant party and their relatives were present as such I was taken to Services Hospital where I was medically examined. During investigation, the first Investigating Officer refused to record my version and also to place my M.L.R. On the record. I got the investigation transferred to D.S.P., where I produced my defence evidence. The said Investigating Officer also reached the conclusion that I did not participate in the occurrence. I am innocent. I have falsely been involved in this case with twisting story. The P.Ws. Have intentionally suppressed my injuries during investigation."
20. ' The appellants examined, Naeem Ahmad as D.W.1 in supported of the defence version, who stated that the firing started from both sides and 7/8 persons from the complainant party equipped with fire-arms injured Muhammad Azam and thereafter he was dragged out of his shop and was given beating when Shahzad employee of Azam opened fire. Muhammad Yaqoob, D.W.2 also supported the story put by Naeem D.W.1 Mubashar Hassan, D.W.3 also claimed to be the eye-witness of the occurrence and his statement is in line with the statement of Muhammad Naeem, D.W. 1 and Muhammad Yaqoob, D.W.2. Mubarak Iftikhar Warraich, D.S.4 had investigated the case and declared the accused innocent.
21. ' The trial culminated into conviction of the appellants as mentioned above. Criminal Appeal No,1026 of 2000 has been filed by Haji Muhammad Azam, Haji Bashir Ahmad, Muhammad Ali alias Chitta and Ansar accused against their conviction and sentence while Criminal Appeal No,1552 of 2000 has been filed by Shahzad accused. The complainant has filed Criminal Revision No, 575 of 2000 for enhancement of sentence compensation.
22. ' Learned counsel for the appellants has argued that the complainant party was the aggressor and the occurrence took place at the spur of the moment ,and when they caused injtries, to Haji' Azam, Shahzad appellant, fifed in, exercise of right of self-taken place at the spur of the moment without any premeditation or in exercise of , self-defence and by placing the prosecution story and defence plea in juxta-position, the defence plea is more probable, believable and natural; that the injuries on Muhammad Azam appellant were suppressant by the prosecution, therefore, the prosecution story is now doubtful; that it was a case of culpable homicide not amounting to death and intentional murder. Learned counsel has placed reliance on 1988 SCMR 857, PLD 1976 SE 2441, 1986 SCMR 1715 and PLD 1988 Lahore 643. It has been further argued that Shahzad, Ansar and Muhammad Ali alias Chitta were net nominated in the F.I.R. Their names were mentioned in the supplementary statement and in the complaint after long time, therefore, their involvement is result of deliberations; that three empties of rifle. 222, taken into possession tallied with the licensed rifle of Haji Azam which was used by Shahzad appellant and the injuries on the complainant, Zulfiqar and the deceased were result of three shots fired by Shahzad and that other appellants are innocent.
23. ' Conversely, the appeals have been opposed by learned counsel for the complainant and counsel for the State. Learned counsel for the complainant has also pressed his revision petition.
24. ' Heard. Record perused.
25. Muhammad Azam was nominated in promptly recorded F.I.R. With specific role. The time and place of occurrence has been admitted. The stand of Muhammad Azam is that the complainant party was aggressor, he was injured and was medically examined by Dr. Muhammad Ashraf, D.W.5 at mid-night on 26-5-1998 and his injuries were suppressed by the prosecution, but we find that he was arrested on 12-6-1999 and he never put his version before the first Investigating Officer i,e, Muhammad Arif, P.W.6 and the injuries on his person were minor and for about four weeks he failed to surrender himself before the police and it' appears that he procured ,his medical report in the meantime to create his defence plea. The rifle .222 bore was got recovered by him from his own shop and the three empties of the rifle allegedly fired tallied with it, vide report of Forensic Science Laboratory Exh.P.LL which corroborates the use of his rifle and his version that he was attacked by the complainant party and in exercise of right of self-defence, Shehzad, his employee, fired at the deceased has not been supported from any independent source. Shahzad has also denied his participation in the occurrence in his statement under section 342, Cr.P.C. He (Shahzad) has not appeared before the Court to, make statement on oath under section 340, Cr.P.C. To support the defence plea taken by Muhammad Azam. The investigation was transferred by Muhammad Azam to a police officer of his choice Mubarik Iftikhar, D.W.4 who without any basis declared him innocent.
26. He has tried to find a scapegoat i,e, Shahzad, his employee. According to the statements of Naeem Ahamd D.W.1, Muhammad yaqoob D.W.2 and Mubashir Hassan D.W.3 both the parties resorted to firing but except three empties fired from rifle 222 tallied with the rifle of Muhammad Azam and three of pistol .30-bore no other empty was taken into possession from the spot by the Investigating Officer, and therefore, the defence plea is not true and believable. The case against Muhammad Azam, appellant has been proved beyond any shadow of doubt by. Shaukat Ali, complainant D.W.1 and Zulfiqar, D.W.2 who were also injured in the same occurrence and their presence at the spot cannot be doubted and by recovery of weapons of offence which is further corroborated by medical evidence.
27. ' Shahzad, Muhammad Ali alias Chitta and Ansar were nominated in supplementary statement.
28. Although three unknown assailants were mentioned in the F.I.R. But by introducing their names in supplementary statement without any basis or source of information makes the case against them doubtful. Haji Muhammad Azam was attributed two fire injuries, one to Karamat Ali at his belly and second to Shaukat, P. W.1 and possibility cannot be ruled out that the third fire from the same rifle might have hit Zulfiqar P.W.2. Haji Bashir Ahmad was stated to be armed with rifle. 222 bore but same was not recovered from his possession and he was also declared innocent during the investigation, therefore, his involvement and active participation is doubtful. Shahzad was stated to have cause fire-arm injury on the leg of Shaukat Ali P.W.1 but that injury, according to the medical examination, was an exit wound. Muhammad Ali alias Chitta has been attributed only but blow with pistol on the deceased and Ansar appellant has been attributed iron rod injury to the deceased but from the nature of the injuries cause by blunt weapon the possibility cannot be ruled out that those could have been caused by hitting the deceased on hard surface and the prosecution case against them has not been proved beyond doubt. So, benefit of doubt is extended in their favour. Resultantly, Criminal Appeal No,1026 of 2000 to the extent of Haji Muhammad Azam, appellant is dismissed and his conviction and sentence is maintained. The appeal to the extent of Muhammad Ali alias Chitta, Ansar, .Shahzad and Haji Bashir Ahamd is allowed.
29. ' Their conviction and sentence is set aside, they are on bail, their sureties are discharged. Criminal Appeal No,1552 of 2000 of Shahzad stands allowed.
30. ' Criminal Revision No,575 of 2000 filed by the complainant is dismissed having no force.