' TASSADUQ HUSSAIN JILANI, J.--- Appellant was tried by the learned Judge, Special Court, Gujrat constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (in the case registered vide F.I.R. No,109, dated 10-4-1996 under sections 302/392/411/34, P.P.C. Police Station Kunjah, District Gujrat) for the murder of Atib Shah and vide judgment, dated 17-5-2000, the appellant was convicted under sections 302 and 392, P.P.C. In the following terms:-
(i) Under section 302-B, P.P.C., appellant was sentenced to death with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo R.I. For one year.
(ii) Under section 392, P.P.C., he was sentenced to five years' R.I. And a fine of Rs,10,000 in default whereof to further undergo S.I. For six months. , ' (Note. Initially co-accused Tanvir alias Billa and Azhar alias Kala were also sent up for trial but Tanvir died before the framing of charge whereas Azhar absented himself and was declared a proclaimed offender).
2. The prosecution story as given in the F.I.R. (Exh.P.M./1) registered by Mujahid Farooq, A.S.-I. (P.W.9) on the statement (Exh.P.M.) of Muhammad Saleem complainant (not produced) briefly stated was that on 10-4-1996 when the complainant alongwith two others, namely, Syed Iftikhar Hussain (P.W.2) and Zulfiqar Ali (not produced were having a round of their fields, they saw a person lying on the ground smeared with blood on the roadside, alongwith a motorcycle bearing No,GTA 5377 Yamaha. As they went near him, they saw that it was the dead body of Muhammad Atib Shah who had been murdered by some unknown persons with fire-arms.
3. After recording the statement and sending the same to the police station for recording formal F.I.R. To the police station, P.W.14 Ghulam Sarwar, S.-I. Proceeded to the place of occurrence, prepared the Inquest Report (Exh.P.O.), sent the dead body to the hospital for post-mortem examination, prepared the site plan (Exh.P.Q.) secured eight crime-empties from the place of occurrence, made them into a sealed parcel vide memo. Exh.P.T. And the motorcycle referred to above was taken into possession vide memo. Exh.P.C. He arrested the appellant on 25-5-1996. On 7-6-1996 Mazhar Shah appellant, while in police custody, led to the recovery of a kalashnikv (P.3) from his house which was taken into possession vide memo. Exh.P.G. He also got recovered an amount of Rs,100 (P.4/1-2), a ring (P.5) from his Dera which were taken into possession vide memo.
Exh.P.H. And Exh.P.J. Is the recovery memo. Of the recovery of Rs,150 from his possession.
4. During trial prosecution examined fourteen witnesses including the doctor and the Investigating Officer. P.W.1 is Dr. Abid Mehmood Ghori who conducted the post-mortem examination of Atib Shah deceased and found following injuries on his person:--
(1) A lacerated fire-arm wound of 6 x 4 c.m. x tearing the underline tissues crushing the humorous on the lateral aspect of right upper arm with everted margins posteriority and everted margins anteriorily, there was corresponding tearing of clothes, blackening of margins on posterior aspect was present.
(2) A fire-arm wound of entry with inverted margins 1.5 x 1.5 c.m. On the posterior aspect of chest upper part right side, blackening of margins was present.
(3) A fire-arm wound of exit with everted margins 3 x 3 c.m. On the fourth intercastal space on the anterior axillary line right side.
(4) A fire-arm wound of entry with inverted margins, 1.5 x 1.5 c.m. On the middle of chest posteriority blackening of margins was present.
(5) A fire-arm wound of exit of the size 4 x 3 c.m. With overted margins on front of chest second intercastal space.
(6) A fire-arm wound of entry 1.5 x 1.5 c.m. With inverted margins with blackening of margins on the upper part of the left side chest posteriorily.
(7) Multiple abrasions on the anterior aspect of left knee joint.
' P.W.2 is Syed Iftikhar Shah who made statement consistent with the one recorded under section 161, Cr.P.C. And corroborated the F.I.R. Story. P.W.3 is Habib Shah. He stated that on 9-4-1996 Tanveer alias Billa, Azhar and Mazhar Shah (appellant) came to him and made a confession that they had committed the murder of Atib Shah and that he should help them for seeking pardon. P.W.4 is Ijaz Ahmad who stated that on 9-4-1996 in the evening time he was with Arif when they were stopped by Tanveer alias Billa (since dead). Azhar and Mazhar Shah (appellant) at gun-point and were asked to take out whatever they had. They were searched and Azhar Shah took out Rs,100 from the pocket of Arif. They were asked to keep quiet. A little later, they stopped another motorcycle but the persons who were driving the motorcycle told them that they had identified them whereafter appellant Mazhar Shah and Tanveer fired at the person who was driving the motorcycle and the latter was Atib Shah. While leaving the place of occurrence, they threatened Ijaz (P.W.4) that if he told anybody about the occurrence, he would have to face dire consequences. P.W.5 is Muhammad Arif who corroborated the statement of P.W.4 on all material particulars. P.W.6 is Rashid Ahmad whose statement is to the effect that on the fateful day at 6-15 p.m. He saw all the three accused going towards Jahangirpur side and at about 8-30 p.m., the same evening he saw them going back from Jahangirpur to Pooranwala side. Mazhar appellant and Tanveer co- accused were armed with kalashnikov at that time. P.W.7 is Ziaul Haq who is a witness of recovery of eight crime-empties from the spot, the last-worn clothes of the deceased and of kalashnikov (P.3) from Mazhar Shah appellant. P.W.10 is Muhammad Ismail Patwari who prepared the site plans (Exhs.P.N. And P.N./1). P.W.11 is Mubashir Ahmad Moharrir/Constable who was given sealed parcel containing empty cartridges and bloodstained earth for safe custody. On 25-4-1996, he handed over parcel to Nadir Ali, Constable for onward transmission to the Forensic Science Laboratory.
P.W.12 is Nadir Ali who corroborated the statement of P.W.11 and stated that he delivered the sealed parcel in the Forensic Science Laboratory without there being any tampering. P.W.13 is Muhammad Sarfraz Constable who delivered rifle in the Office of Forensic Science Expert. P.W.14 is Muhammad Sarwar, S.-I., the Investigating Officer. Exh.P.R. Is the report of the Forensic Science Laboratory and the same is to the effect that the empties were fired from the kalshnikov recovered from the appellant.
5. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity. In an answer to a question as to why this case was registered against him, he added as under:-- "The deceased was murdered by some unknown assailants. I had political rivalry in the village because I belong to Muslim League and supported Sardar Khan whereas the complainant party belong to P.P.P. And supported opponent of above Sardar Khan and due to this grudge I have been falsely involved in this case due to suspicion."
6. Learned counsel for the appellant, in support of this appeal, made following submission:--
(i) That it was unseen occurrence and no reliance can be placed on the so-called witnesses.
(ii) That the story given by the P.W.4 and P.W.5 is repellent to common sense as there is no reason why these witnesses should have been let off if the appellant had killed Atib Shah.
(iii) That the evidence of extra-judicial confession furnished by P.W.3 is of no consequence as the confession was joint and there was no earthly reason for the appellant to come to the said witness for pardon.
(iv) That the place of alleged recovery of the kalashnikov is accessible to public and there is nothing in evidence to indicate that the same was in the exclusive possession of the appellant.
7. Learned counsel for the State assisted by the learned counsel for the complainant defended the impugned judgment by submitting that the prosecution has succeeded in proving the case against the appellant beyond reasonable doubt.. He added that the F.I.R. Was lodged with promptitude, the witnesses who appeared in Court to furnish the ocular account, are disinterested and their evidence is corroborated by the factum of recovery as also the report of the Forensic Science Expert.
8. Heard.
9. The machinery of law in the instant case was set into motion by registration of F.I.R. (Exh.P.M./1).
Exh.P.M. Is the complaint on the basis of which the F.I.R. Was registered. The complainant merely mentioned to have seen the dead body of Atib Shah and did not name anyone as an accused.
Although he did not appear himself in Court as he had gone abroad but the F.I.R. Was proved not only by P.W.9, who recorded the same, but also by P.W.2 Syed Iftikhar Shah who accompanied the complainant when they saw the dead body and the latter while appearing in Court made statement consistent with the story as given in Exh.P.M. The statements of P.Ws.4 and 5 gave graphic details of how they were robbed and how thereafter they robbed Aftab Shah deceased.
Their evidence inspires confidence. Nothing was suggested in cross-examination as to why they should falsely depose against thed appellant. Their statements are corroborated by the factum of recovery of kalashnikov which was witnessed by P.W.7 Ziaul Haq and P.W.14 Muhammad Sarwar.
P.W.7 although is related to the deceased yet mere relationship would not discredit a witness unless anything is brought on record to indicate that he had any motive to falsely implicate the appellant. Notwithstanding the fact that his testimony inspires confidence the same is corroborated by the report of the Forensic Science Expert (Exh.P.R.). Admittedly, the empties were sent to the Forensic Science Laboratory on 25-4-1996, appellant was arrested on 25-5-1996, kalashnikov was recovered on 7-6-1996 and was sent to the Laboratory thereafter. The fact that the empties were sent to the Forensic Science Laboratory much earlier than the weapon, would further make the report (Exh.P.R.) credible. Nothing was suggested to Nadir Ali (P.W.12) who took the sealed parcel, containing empties, to the Forensic Science Laboratory to indicate that those were, in any manner, tampered with. No challenge was thrown to the report either in the cross- examination of P.W.14 the Investigating Officer, or by leading defence evidence. In similar circumstances, the conviction was upheld by the august Supreme Court in Mian Amjad Hussain and others v. Nadeem Abbas and another 2000 PSC Criminal 722 wherein at page 724 it was held as under:-- "The statements of eye-witnesses are corroborated by the opinion of Ballistic Expert who had opined that crime-empties recovered from inside the car of the deceased, matched with the pistol recovered from the petitioner. The statement of the doctor also indicates that the deceased was fired at from a close range. These aspects prove the involvement of petitioner beyond doubt."
10. For what has been discussed above, we are of the considered view that the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt to sustain conviction on a capital charge. However, coming to the question of sentence we note that the learned trial Court, while burdening the appellant with a compensation of Rs,50,000 directed that he shall undergo R.I. For one year in case of default. This is violative of section 544-A, Cr.P.C.
Resultantly, while dismissing the appeal, we hold that the default of payment of the afore-referred amount of compensation he shall undergo S.I. For six months.
' Death sentence confirmed.