' ASIF SALED KHAN KHOSA, Muhammad Riazul appellant was convicted on four counts of an offence under section 302(a), P.P.C. Vide judgment, dated 8-7-2000 handed down by the learned Judge, Special Court Anti-Terrorism No,1, Rawalpindi Division and Islamabad Capital Territory and was sentenced to death on each count and to pay a sum of Rs, 5,00,000 on each count to the heirs of each of the four deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for five years on each count. The appellant was also convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and was sentenced to death. The appellant was further convicted for an offence under section 353, P.P.C.
And was sentenced to rigorous imprisonment for two years and a fine of Rs, 10,000 or in default of payment thereof to undergo rigorous imprisonment for two months. The sentences of imprisonment passed against the appellant were ordered by the learned trial Court -to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to the appellant. A co- accused of the appellant namely Raziq, a son of the appellant, had become a fugitive in this case and had, thus, not been tried. The appellant has challenged his convictions and sentences before this Court through Criminal Appeal No, 1323 of 2000 which has been heard by us along with Murder Reference No, 54-T of 2001 and we propose to decide both these matters together through the present consolidated judgment.
2. According, to the prosecution's case unfolded in the F.I.R. Muhammad Iqbal complainant was a Forest Guard in the Forest Department and was posted at Lower Topa, Murree. On 18-3-1998 the District Forest Officer and the other higher authorities of the department received a secret information that in village Phrondi Muhammad Riazul appellant and his son Raziq had stolen official wood from Forest No,31 and were keeping the same in their house and the stolen wood could be recovered' from their house if a raid was conducted in that regard. Upon receipt of that/information the District. Forest Officer, Murree directed Imtiaz Baig, Sub-Divisional Forest Officer, to conduct the necessary raid whereupon the said Imtiaz Baig constituted a raiding party.
Consisting of Muhammad Abbas, Block Officer, Gul Nawaz, Forest Guard, Muhammad Nawaz, Forest Guard, Muhammad Shafique, Forest Guard and the complainant and reached village Phrondi at about 7.30 p.m. On 18-3-1998. In the meanwhile Attarad Rehman, Forest Guard of Forest No,31, also reached there. All the members of the raiding party were equipped with torches. The raiding party went to the house of the appellant and found the stolen wood to be present at the back of the appellant's house. The complainant then called out and required the appellant to come out of his house as officials from the Forest Department had come there. Upon the complainant's call the appellant's son namely Raziq came to the complainant party and Imtiaz Baig, Sub-Divisional Forest Officer, introduced the raiding party to him and required him to send his father out so that the matter pertaining to the stolen wood could be inquired into. The appellant's son then went inside the house and shouted to his father that officials of the Forest Department had come to recover the stolen wood for which they should be taught a lesson. Upon that Lalkara of his son the appellant came out of his house armed with a double barrel gun .12 bore and started firing at the raiding party which firing was witnessed by the later in torchlights. The fires made by the appellant hit Imtiaz Baig on his mouth and chest and he fell down. The appellant then fired at the fallen Imtiaz Baig hitting the latter's abdomen and right thigh. Another fire by the appellant hit Muhammad Nawaz at his forehead and head who also fell down. The appellant then fired at, the fallen Muhammad Nawaz hitting him at his left lower leg. The appellant then 'fired at Gul Nawaz"s head and he too fell down upon receipt Off that injury. Thereafter, the appellant fired at Muhammad Abbas injuring his back and left flank and he too fell down. All the injured persons namely Imtiaz Baig, Muhammad .Abbas, Muhammad Nawaz and Gul Nawaz theri succumbed to their injuries at the spot and died. The said incident was witnessed by Muhammad Iqbal complainant, Attarad Rehman and Muhammad Shafique, Forest Guards, in torchlight who had saved their lives by lying down on the ground. It was mentioned in the F.I.R: that the complainant and the other eye- witnesses had then fled from the scene at a time when the appellant was still continuing with firing and the appellant's son namely Raziq was raising Lalkaras warding off the witnesses. Muhammad Iqbal complainant then proceeded to the police station in order to report the incident but he met Asad Ishaque, Inspector (P.W.16) on the way and got his statement (Exh.P.F/1) recorded by him at 12-05 a.m. On 19-3-1998 on the basis of which formal F.I.R. No, 29 (Exh. P.F.) was subsequently registered at Police Station Kotli Sattian, District Rawalpindi at 1-10 a.m. On 19-3-1989 for offences under sections 302/34/353/186, P . P. C .
3. After recording the statement of the complainant Asad Ishaque, Inspector (P.W.16) took up the investigation of this case and went to the place of occurrence. In the morning of 19-3-1998 he arrested the appellant and recovered a gun .12 bore from his possession along with 10 live cartridges. He then prepared ,a rough site-plan of the place of occurrence, recovered the stolen official wood, wireless set, belonging to Imtiaz Baig deceased, ten crime empties, blood-stained earth pertaining to all the four deceased and prepared injury statements and inquest reports regarding the four deceased and then sent the dead bodies to the mortuary for autopsy. After post-mortem examination of the dead bodies he received the last-worn clothes of all the deceased and recorded the statements of witnesses.
4. Post-mortem examinations of the dead bodies of Gul Nawaz and Muhammad Nawaz were conducted by Dr. Zainul Abdin (P. W.1) on 19-3-1998' whereas post-mortem examinations of the dead bodies of Imtiaz Ahmad and Muhammad Abbas deceased were conducted by Dr. Shaheen Akhtar Malik (P.W.2) on the same day.
5. The case in hand was subsequently investigated by Muhammad Saqlain, Inspector/S. H .0 . (P W 15) and he, during the investigation, recovered a rifle 7 MM belonging to Imtiaz Baig deceased along with 7 live cartridges and four torches and battery-cells belonging to the four deceased from the custody of the appellant on 31-3-1998. Thereafter, he completed the investigation and sent the file of this case to the relevant police station for submission of challan.
6. At the commencement of the trial the learned trial Court framed a charge with five heads under section 302/34, P.P.C. (four counts) and section 7 of the Anti-Terrorism Act, 1997 read with sections 181/353, P.P.C. To which the appellant pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as sixteen witnesses in support of its case against the appellant. Muhammad Iqbal complainant (P. W .4), Attarad Rehman (P.W.7) and Muhammad Shafique (P.W.8) furnished the ocular account of the incident in question. Dr. Zainul Abdin (P.W.1) and Dr. Shaheen Akhtar Malik (P.W.2) provided the, medical evidence. Mirza Iftikhar Ahmad (P.W.10) and Hassan Saeed (P.W.14) stated about the recoveries effected from the appellant during the investigation of this case. Asad Ishaque, Inspector (P.W.16) and Muhammad Saqlain Inspector/S.H.O. (P.W.15) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In his statement recorded under section 342, Cr.P.C. The appellant denied and, controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. While responding to a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him the appellant had stated as follows: "I am innocent. In this case actually police has made this case against me in connivance with the Forest Staff, therefore, they were made witness against me. My gun was taken into possession and later on fire was made from it and report of Ballistic Expert was obtained against me."
' The appellant, however, opted not to make a statement on oath under section 340(2), Cr.P.C. And he also did not produce any witness in his defence.
9. At the conclusion of the trial the learned trial . Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
10. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. In support of this appeal it has been argued by the learned counsel for the appellant that the occurrence in this case had taken place during a night and identification of the culprit is claimed by the prosecution in torchlight, the torches allegedly being carried by the eyewitnesses had never been produced before or secured by the investigating Officer, the eyewitnesses did not have a stamp of injuries on their persons so as to vouchsafe their presence at the spot at the relevant time; had the eye- witnesses been present at the spot then they would not have been spared unscathed by the culprits if he had already taken four lives; had the appellant been the' real culprit then he would not have been present at his own house on the following morning so as to facilitate the police to arrest him; it is not believable that the rifle of Imtiaz Baig deceased, the torches belonging to the four deceased and the stolen wood were kept by the appellant in his custody so as to enable the police to recover them from his custody and to provide material for incriminating himself, and the report of the Forensic Science Laboratory showed that some of the crime-empties recovered from the spot had not matched with the gun recovered from the appellant which showed that the occurrence in question had taken place in circumstances different from those alleged by the prosecution. It has also been argued that some of the injuries found on the dead bodies of the four deceased had remained unexplained by the prospection. It has further been argued that the so-called stolen wood recovered in this case had neither been proved to be official wood nor the same had been produced before the learned trial Court during the trial. It has also been vehemently argued that the learned trial Court had, in its judgment, relied upon an inquiry report which had not been exhibited in this case nor_ copies of statements made by witnesses before the Inquiry Officer were made available to the defence during the trial of this case. In this context it has been maintained by the learned counsel for the appellant that the learned tal Court could not have relied upon such an inquiry report nor could such a report be considered against the appellant as the same was never put to the appellant in his statement recorded under section 342, Cr.P.C. In this regard a reference has been made to the cases of Ghulam Muhammad v. The State (1985 SCM R 1442), Asif Ali Zardari and another v. The State (PLD 2001 SC 568 at p.596) and Sheral alias Sher Muhammad v. The State (1999 SCM R 697). As against that the learned counsel for the complainant as well as the State have maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, his convictions and sentences recorded by the learned trial Court. Do not warrant any interference by this Court. It has further been maintained by them that the learned trial Court had only referred to the above-mentioned inquiry report in his judgment but the said inquiry report had not been relied upon by him for the purpose of recording the appellant's conviction which had been based by the learned trial Court only upon the ' evidence produced in the present case.
11. After hearing the learned counsel for the parties and going through the record we have noticed that_ although the occurrence in this case had taken place during a night yet the eye-witnesses produced by the prosecution had consistently maintained that they had identified the appellant in torchlight and four such . Torches being carried by the four deceased had in fact been recovered in this case during the investigation. The claim made by the eye-witnesses that each one of the members of the raiding party was equipped with a torch has not appeared to this Court to be inconsistent with the normal course of things, especially keeping in view the fact that the eye- witnesses belonged to the Forest Department which has to keep a vigil on the official forest day and night and for such a -vigil during the night its officials are ordinary expected to carry torches with them. The F.I.R. In this case had been lodged with sufficient promptitude wherein the present appellant had been specifically nominated as the principal perpetrator of four murders of officials belonging to the Forest Department. Such a prompt nomination of the appellant is also consistent with the claim of the complainant and the other eye-witnesses regarding identifying the appellant at the scene of the crime. On the very next morning following the night of incident the appellant was arrested in connection with this case and some recoveries were effected from him. The complainant and the other eye-witnesses produced by the prosecution are all responsible public servants and no reason whatsoever has been brought on the record of this case by the defence as to why the complainant and the said eye-witnesses would be interested in falsely implicating the present appellant for the quadruply murder of their colleagues in the Forest Department. The site- plan of the place of occurrence (Exh.P.J) clearly established that all the four deceased had rendezvous with their death dutside the appellant's house and there was no other house situated in close proximity of the scene of the crime. The appellant had utterly failed to explain as to how those officials of the Forest Department had been done to death outside his house. In the peculiar circumstances of this case such location of the place of occurrence was also a circumstance which pointed towards the, guilt of the appellant. During the investigation the rifle belonging to Imtiaz Baig deceased as well as four torches belonging to the four deceased had been recovered from the appellant's possession. The gun recovered from the appellant had also matched with four crime-empties recovered from the place of occurrence soon after the incident. It may be true that the crime empties had not, been sent to the Forensic Science Laboratory before recovery of the gun from the appellant but a valid explanation is available to the prosecution in that regard inasmuch as the occurrence in this case had taken place at about 7-30 p.m. On 18-3-1998, the crime-empties had been recovered by the police from the place of occurrence soon after midnight during the same night and on the following morning the appellant was wrested and a gun was recovered from his possession. Thus, there was hardly any time available with the Investigating Officer to dispatch the crime-empties to the Forensic Science Laboratory before recovery of the gun from the appellant. The consistent statements made by the eye-witnesses had, thus, received sufficient corroboration from the said recoveries, i,e, not only of the articles belonging to the deceased but also of the weapon of offence from the appellant's possession, The medical evidence had also provided sufficient support to the ocular account inasmuch as the time of occurrence, the locale of injuries and the weapon used for causing injuries to the deceased had all been confirmed by the medical evidence. Some blunt weapon injuries found on different deceased could have been sustained by them due to their fall on the ground which too was mentioned in the F.I.R. As well as in the statements of the witnesses.
12. The argument advanced by the learned counsel for the appellant that had Imtiaz Baig deceased been armed with a rifle at the time of occurrence then he would have surely used the same in his self-defence has failed to impress us because, according to the prosecution's case, it was Imtiaz Baig deceased who was targeted and hit by the appellant before he had aimed his gun towards any other deceased. It was after fatally injuring Imtiaz Baig deceased and incapacitating him that the appellant had turned his attention to other. In these circumstances the question of Imtiaz Baig deceased using his rifle in self-defence did not arise.
13. It may be true that the torches allegedly being carried by the complainant and the other eye- witnesses had not been secured by the Investigating Officer but at the same time it cannot be lost sight of that four torches belonging to the four deceased had been recovered in this case from the appellant's possession and it is quite believable that the said torches must be a light at the time of the incident when the deceased and the other members of the raiding party had called out the appellant from his house. Thus, in the absence of recovery of torches of the complainant and the other eye-witnesses it is quite believable that they could conveniently identify the appellant in the light of the torches being carried by the deceased.
14. The submission made by the learned counsel for the appellant regarding failure to bring on record the report prepared by an Inquiry Officer and reliance having been placed by the learned trial Court in its judgment upon such a 'report has also been found by us to be without much substance. A perusal of the judgment passed by the learned trial Court in this case shows that the above mentioned inquiry report had only been referred to by the learned trial Court as a fact without placing any reliance upon the same for the purpose of recording the appellant's conviction. As a matter of fact the main judgment passed by the learned trial Court had proceeded only on the basis of the evidence available on the record of this case and it was only at the far end that the said inquiry report had been mentioned by the learned trial Court without placing any reliance thereupon. Apart from that the claim made by the learned counsel for the appellant that copies of the statements of witnesses appearing in the above mentioned inquiry ought to have been supplied to the appellant at the commencement of his trial is a claim which is not supported by the provisions of section 265-C, Cr.P.C. As such statements of witnesses before the Inquiry Officer did not qualify to be termed as statements made under section 161 or 164, Cr.P.C.
It may be pertinent to mention here that during the trial the appellant had applied for supply of copies of such statements as well as a copy of the inquiry report but the appellant's application in that regard had not only been turned down by the learned trial Court but a challenge against the said decision of the learned trial Court had also failed before this Court. We have been told that no further challenge was made in that regard by the appellant before the Hon'ble Supreme Court of Pakistan. No prejudice has been shown to have been caused to the appellant due to non-supply of copies of those statements of witnesses made before the Inquiry Officer or on account of non- supply of a copy of the inquiry report. Be that as it may, we have ourselves gone through the entire record of this case with the assistance of the learned counsel for the parties and have applied our own Independent minds to the evidence available against the appellant without in any manner being influenced by the, above mentioned inquiry report which is not even available before us.
Thus, irrespective of any mention made by the learned trial Court in its judgment to such a report we have formed our own opinions regarding guilt or innocence of the appellant on the basis of the evidence produced against him by the prosecution Wore the learned trial Court so as to decide the present appeal and the -connected Murder Reference on its merits. In this regard we have followed the course which was adopted by the Hon'ble Federal Court of Pakistan in the case of Imran Ullah v.
The Crown (PLD 1954 FC 123).
15. After attending to the entire evidence available on the record we have unhesitatingly arrived at a conclusion that the prosecution had indeed succeeded in proving the guilt of the appellant 'to the hilt. The consistent and straightforward statements made by the complainant and the other two eye-witnesses, who had no personal animus against the appellant to falsely implicate him in a case of this nature, had received ample corroboration' from the recoveries effected from the appellant and had also received sufficient support from the medical evidence. We are, thus quite sanguine that it was the appellant and none else who had murdered the four deceased in this case. We have failed to find any mitigating circumstance regarding the sentences passed against the appellant by the learned trial Court. The appellant had not only stolen official wood but had butchered four officials of the Forest Department who, while performing their official duty, had gone to the appellant's house to recover such stolen wood. The appellant, therefore, deserves no mercy or sympathy in this regard. The normal wages of a crime of murder is death and, in the peculiar circumstances of this case, the appellant deserved no less.
16. We have, however, noticed that proof as required by the provisions of section 304, P.P.C. Was not available in this case and, therefore, the appellant could not have been convicted by the learned trial Court under section 302(a), P.P.C. And the case against the appellant attracted the provisions of section 302(b), P.P.C. Criminal Appeal No, 1323 of 2000 filed by Muhammad Riazul appellant before this Court is, therefore, dismissed with the modifications that instead of 302(a), P.P.C. The appellant's convictions on four counts of murder shall be treated as convictions under section 302(b), P.P.C. And instead of rigorous imprisonment for five years upon failure of the appellant to pay compensation to the heirs of each deceased the appellant shall undergo simple imprisonment for a period of six months on each count as contemplated by the provisions of section 544-A, Cr.P.C. With the above modifications the convictions and sentences passed against the appellant by the learned trial Court are upheld and maintained. The mode of execution of the sentences of death passed against the appellant shall, however, be according to the normal course instead of the method prescribed by the learned trial Court.
17. Murder Reference No, 54-T of 2001 is hereby answered in the affirmative.
' Death sentence is confirmed. #EndJudgment