RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Criminal Appeal No,44-.1 of 2002, Murder Reference No,66/T of 2001 and Criminal Revision No,280 of 2002.
2. The brief facts of the case are that case F.I.R. No,120 of 2000 was registered on 30-7-2000 (Exh.PH) in Police Station Kamar Mashani, District Mianwali under sections 302/353/186, P.P.C. and also under section 13 of the Pakistan Arms Ordinance, 1965 on the statement of Muhammad Anwar Khan, Constable No,937. In the F.I.R. it had been stated by the complainant that on the day of occurrence i,e, 30-7-2000 he and Muhammad Amir, Constable No,198 and Muhammad Ayub, Constable No,138 and also Khaliq Dad, A.S.I. were on routine patrolling in official Vehicle No,MIA 7679 which was being driven by Muhammad Mumtaz. Around 10-15 p.m. they reached Bus Stop of Manda Khel when an informer informed them that Atta Muhammad and Abdul Razzaq both of whom were involved in case F.I.R. No, 85 of 2000 registered on 3-6-2000 in Police Station Kamar Mashani, District Mianwali under section , 302/34, P.P.C., were present at the Dera of Mattiullah Khan and if a raid was conducted they could be arrested. Thereupon the A.S.I. constituted a raiding party and the aforesaid Police Officials headed by an A.S.I. reached near the Dera of Mattiullah Khan around 12- 30 p.m. Mattiullah was sitting on a cot outside the Dera and was identified by the Police Officials in the torch light. Mattiullah was holding a pistol .12 bore in his right hand. Khalid Dad, A.S.I. told him at a loud voice that they are Policemen and asked him to hand over to them Atta Muhammad and Abdul Razzaq. Mattiullah replied that both of them had gone away from there. Thereupon the A.S.I. asked him to hand over his pistol .12 bore to them and if he possessed any arms licence the same be also got checked. But Mattiullah said that he does not have the licence for the pistol and they should not come near him. Khaliq Dad, A.S.I. tried to prevail upon him that if he was having the illicit pistol he should hand over the same to the Police. In the meanwhile Khaliq Dad, A.S.I. got nearer to Mattiullah and thereupon Mattiullah fired a shot with his pistol .12 bore at Khaliq Dad, A.S.I. and which hit him on his chest towards the left side and Khaliq Dad fell down. The complainant alongwith the other Police Officials caught hold of Matuullah who was trying to re-load the pistol and the pistol was also taken into custody. The complainant attended to the A.S.I. but he had expired at the spot. Leaving his companions at the spot near the dead body of the deceased, the complainant himself proceeded to the hospital and where he got registered the F.I.R.
3. After investigation, the Police challaned the accused in this case and on the completion of the investigation, the case was ultimately sent to the Anti-Terrorism Court for trial.
4. The accused was formally charged by the learned Special Judge Anti-Terrorism Court, Sargodha Division, Sargodha on 12-12-2000 under section 216/302 and 353, P.P.C. and also under section 7 of the Anti-Terrorism Act, 1997. The accused pleaded not guilty and the prosecution was thus asked to produce its evidence.
5. The prosecution has examined in this case 8 P.Ws. Of them P.W.1 is Dr. Mehr Khan. Medical Officer.
D.H.Q. Hospital, Mianwali who on 31-7-2000 had conducted the post-mortem examination of the dead body of the deceased and had found the following injury on his person:-- "An entry wound of fire-arm 3 c.m. x 2-1/2 c.m. over the front of left chest, just over the nipple, with blackening around and burnt margins.
In his opinion the cause of death was severe haemorrhage and shock caused in Injury No,1 which was sufficient to cause death in ordinary course of nature. He stated that the injury was ante- mortem and had been caused by fire-arm and that the duration between the injury and death was immediate and between the death and post-mortem examination was 5 to 8 hours. Copy of the post-mortem report is Exh.PA while the sketch of injuries is Exh.PA/1. He had also signed the inquest report Exh.P/B and the injury statement Ex.P/C.
6. P.W.8 is Muhammad Anwar, S.-I. who stated that on 30-7-2000 while he was posted as S.I. at Police Station, Kamar Mashani, District Mianwali, he had recorded the statement Exh.P/H of Muhammad Anwar, Constable/complainant, around 1-00 a.m. mid-night. Thereafter, he proceeded to the place of occurrence alongwith the other Police Officials and reached there around 2-30 a.m.
He inspected the dead body and prepared injury statement Exh.P/3 and also the inquest report Exh.P/B. He sent has dead body to D.H.Q. Hospital, Mianwali under the escort of Muhammad Amir, Constable for the purpose of autopsy. He collected bloodstained earth from the spot and sealed into a parcel and he recovered/collected an empty cartridge from the place of occurrence and also sealed it into a parcel. The pistol Exh.P.1 recovered from the accused was produced before him by Muhammad Mumtaz Constable and he took the same into possession and arrested the accused. He also took into possession from the spot a cot and also blood-stained earth. He stated that the blood-stained earth he empty cartridge and the cot had been taken into possession vide memo. P.D. while the pistol P.1 has been taken into possession vide recovery memo. Exh.PE. He deposed that on the personal search of Mattiullah accused 6 live cartridges P.2/1-6 were recovered and which were secured vide recovery memo. Exh.P/F. After the autopsy, Muhammad Amir, Constable produced before him the last worn bloodstained uniform of Khaliq Dad, A.S.1./deceased which is Exh.P/3 alongwith wad and pellets and which he seized vide a memo. Exh.P/1. He recorded the statements of P.Ws., inspected the spot and prepared the visual site-plan Exh.P/J. On 2-8-2000 he took 'the Revenue Patwari to the venue of crime and he took rough notes and prepared the site- plan Exhs.P/G and P/G-I and produced the same before him on 3-8-2000 (S.I./P. W.8 thereafter added that the date on which the Patwari had taken rough notes was 31-72000). He deposed that on the day of the arrest of the 'accused he had made a disclosure and then had got recovered the illicit 7MMrifle. 11 live bullets were also recovered after unloading the said rifle and a case under section 13 of the Arms Ordinance, 1965 was also got registered against the accused.
7. P.W.7 is Muhammad Mumtaz, Constable No,341 who deposed that on 30-7-2000 he had snatched the .12 bore pistol Exh.P/1 from Mattiullah accused at the time of occurrence and had also recovered six live cartridges from the pocket of the accused and which are Exh.P1/1-6. On 30-7- 2000 he produced the pistol P/1 before the Investigating Officer and who seized the same vide recovery memo. Exh.P/E attested by him and also by Shafa Ullah, Constable.
8. P.W.2 is Shafa Ullah, Constable No,917 who had joined the investigation of this case on 30-7-2000.
He had attested the seizure memo. Exh.P/D by which the Investigating Officer had taken into possession the' blood-stained earth from the spot after making it into a parcel and empty cartridges and also a cot. He stated that on the same day, i,e, 30-7-2000, Mumtaz, Constable had produced the pistol .12 bore before the Investigating Officer i,e, the same pistol which had been used by Mattiullah accused during the occurrence and the Investigating Officer had seized the said pistol vide memo. Exh.P/E after making it into sealed parcel. He further deposed that at the time of his apprehension six cartridges of .12 bore P.2/16 were recovered from his pocket on his personal search and which were taken into possession vide memo. ExP/F which was attested by him and also by Mumtaz Constable/P.W.
9. P.W.3 is Mehr Muhammad, Patwari Halqa who on 31-7-2000, under the direction of Police and on the pointation of P. Ws. had taken rough notes at the time of his visit to the place of occurrence and had prepared the site-plan Exh.P/G and Exh.P/G-1 in triplicate in the scale of 40-Karams equal to one inch.
10.P.W.4 is Fazal Karim, Head Constable No,314 who on 30-7-2000 was posted as Moharer Head Constable at Police Station Kamar Mashani District Mianwali. On the said day the Investigating Officer delivered to hint the parcel of blood-stained earth, the parcel containing pistol and also a parcel containing empty of .12 bore and which he kept in Maalkhana and thereafter, on 1-8-2000, handed over the parcel containing blood-stained earth to another Constable for onward transmission to the office of Chemical Examiner. He also handed over rest of the parcels to him for delivering the same in the Forensic Science Laboratory.
11.P.W.5 is Muhammad Anwar, Constable/complainant. In his statement he supported the contents of the F.I.R. He deposed that they had identified Mattiullah accused in the headlight of the vehicle and in the light of torch. After gong detail of the story which led to the occurrence he deposed that Khaliq Dad, A.S.I. deceased lent forward to snatch the pistol but when he reached near the accused, he fired at him, hitting on the left side of his chest. He deposed that when the accused was trying to re-load the pistol they over-powered him and Muhammad Mumtaz, Constable/P.W. snatched the pistol from him. When they attended to Khaliq Dad, A.S.I./deceased he had succumbed to the injuries. He then went to the police station and lodged the F.I.R. Exh.PH.
12.P.W.5 is supported by P.W.6 Muhammad Amir, Constable No,198 who was also a member of the raiding party of the police which had raided Dera of the accused.
13.P.W.6 also deposed that he had escorted the dead body and got the autopsy performed from the D.H.Q. Hospital, Mianwali and that he and Ayub P.W. identified the dead body at the time of post-mortem examination. After the post-mortem examination, the Medical Officer had delivered to him the last worn clothes of the deceased i,e, shirt P.3 (uniform which was blood-stained and the wad and pellets) which he produced before the Investigating Officer and who accursed the same vide memo. Exh.P1 who 11 was attested by him and also by Muhammad Ayub, Constable. During the cross-examination he stated that when Mattiullah accused had fired at Khaliq Dad, the distance of the pistol and the deceased was 1 foot. He deposed that he had stated before the Police that Khaliq Dad was at a distance of 2-1/2 or 3 Karams from the accused when the accused had fired at him.
But he denied that he had described the distance between the deceased and the pistol as one foot (in his statement before the Court) to bring his deposition in line with the medical evidence. le stated that all of them were armed except Muhammad Mumtaz, Driver but stated that probably Khaliq Dad deceased was empty handed but he could not assign any reason as to why Khaliq Dad, A.S.I. was not armed. He admitted that usually the Sub-Inspectors or A.S.Is.' have their service pistols with them while patrolling at night.
14.On 10-12-2001, the Public Prosecutor gave up rest of the P.Ws. tendered in evidence report of Serologist Exh.P/K an attested copy of report of the Chemical Examiner as Exh.P/L and closed the prosecution evidence.
15.On the conclusion of the prosecution evidence the statement of the accused was recorded under section 342, Cr.P.C. and wherein he denied all the incriminating circumstances. In answer to the Question No,6 he deposed that no weapon had been recovered from his person. In answer to Question No,9 he stated that the empty recovered from the place of occurrence had not been sent to the Forensic Science Laboratory. In answer to Question No,10 he stated that so far as he recollects, Khaliq Dad deceased had been murdered when he was in civil dress and that the piece of evidence (relating to the blood-stained uniform Exh.P.3 of the deceased) had been fabricated for covering the notorious activities of the deceased. In answer to Question No,11 as to why this case against him and why the P.Ws. have deposed against him, he stated as under:-- "Atta Muhammad and Abdul Razaque against whom a case under section 302, P.P.C. was allegedly registered are not even known to me. Neither the F.I.R. nor any other documentary evidence nor oral evidence had been produced by the prosecution to substantiate the motive against me as I had no relation with the aforesaid _accused. So, the question of their arrival at my Dera does not arise. On 30-72000 in the early dark hours of the morning the people of the vicinity informed the local police about killing of deceased who was lying unattended in the Mongi Crop. The police reached there. They enquired from me about the death of the deceased. My reply infuriated the police. They took me to police station and got me involved in this case. I never committed the murder of Khaliq Dad. .I never possessed any illicit arms. I am innocent. Khaliq Dad deceased was not a man of good reputation. He met his death under some mysterious circumstances."
The accused did not make statement on oath under section 340(2), Cr.P.C. nor did he produce any evidence in defence.
16.On the conclusion of trial, the learned Special Judge Anti-Terrorism Court, Sargodha Division Sargodha convicted the accused/appellant under section 302(b), P.P.C. and sentenced him to death. He also directed him to pay an amount of Rs,1,00,000 as compensation to the legal Walis of the deceased or in default thereof to further suffer 6 months S.I. and in that case the amount of compensation shall be recoverable as arrears of land Revenue. He also convicted the accused/appellant under section 7 of the Anti-Terrorism Act, 1997 and awarded him the sentence of death. He further convicted the accused/appellant under section 353, P.P.C. and awarded him the sentence of 2 years R.I.
17.Aggrieved of the said judgment the appellant filed a Jail Appeal (Crl. Appeal No,44-J/2002).
The learned trial Judge sent Murder Reference No,66-T of 2001. The State also filed a criminal revision (Criminal Revision No,280 of 2002) for enhancement of compensation under section 544- A, Cr.P.C.
18.Arguments have been heard and record perused.
19.The learned counsel for the appellant has argued that in fact, it was an unseen occurrence and that the deceased had been murdered in the dark hours of the night by some unknown person while he was not on official duty and on 30-7-2000 in the early hours of the morning, the people of the vicinity had informed the local police about the killing of the deceased while his dead body was lying unattended in the Mongi crop. He has argued that the police had reached the spot and conducted the preliminary investigation. They had also enquired from the accused/appellant about the death of the deceased and it was the reply of the appellant/accused which infuriated them and it was then that they falsely implicated him in this case which was otherwise as un- witnessed occurrence. He has argued that Khaliq Dad, A.S.I./deceased did not enjoy good reputation and that he had been killed under mysterious circumstances and that P.W.5 and P.W.6 who are the police officials were not present at the time of occurrence and that they had not witnessed the occurrence and their statements as P.Ws./eye-witnesses were clearly false and suffer from infirmities/inconsistencies. He has argued that P.W.5 and P.W.6 effected improvements in their statements on a number of points and that P.W.6 himself admitted that he had described the distance between the deceased and he pistol (of the accused) as 2-1/2 or 3 Karmas before the Investigating Officer while he described the said distance as 1 foot while appearing in this Court and that he did so in order to bring his deposition in line with the medical evidence. He has also argued that the pistol P.1 which is the alleged weapon of offence in this case was never sent to the Forensic Science Laboratory for comparison with the crime empty and that there is no explanation for doing so. He has argued that no report exists on record that the crime empty was found matched with the weapon of offence and that from the aforesaid fact the presumption could be drawn in favour of the accused/appellant. He has further argued that the recovery of weapon of offence from the accused was fake and that the pistol P.1 had been, in fact, planted on the accused/appellant and it was due to the said reason that it has ' not been sent to the Forensic Science Laboratory. He has argued that the prosecution evidence on record is not of such a nature to warrant conviction on capital charge as it suffers from contradictions and infirmities.
20.The learned counsel for the State has supported the impugned judgment and has argued that there was sufficient ocular and medical evidence and other incriminating evidence on record to justify the conviction. He has argued that the learned trial Court had delivered a well-reasoned judgment based on the evidence on record and requested that the same should be upheld.
21. We have carefully considered the arguments and have also gone through the record. It is not the case of the accused/ appellant that the deceased Khaliq Dad A. S.1. /deceased had any enmity with him. The appellant has not also taken the plea that P.W.5 and ,P.W.6 as well as other police officials including the Investigating Officer who are P.W s. in this case were inimical towards him.
The reason given by him for his implication in this case is weak. It cannot be assumed that the police officials whose companion in uniform had been killed would have allowed the real culprit to go scot-free merely in order to falsely implicate the appellant in this case. It cannot be believed that merely the reply of the appellant had infuriated the police to such an extent that they thought it fit to substitute the appellant for the real culprit. The eye-witnesses as well as recovery witnesses did not have any previous enmity with the accused/appellant and hence there could be no reason for his false implication. While the blood-stained uniform of the deceased has been produced in evidence, it cannot be assumed that the deceased was not on official duty at the time of occurrence or that he was in plain clothes. The ocular account furnished by.the P. Ws. in this case has fully corroborated the postmortem report Exh.P.A and is further corroborated by the report of the Serologist Exh.P.K, and copy of the report of the Chemical Examiner Exh.PL. It is correct that the pistol P.1 does not appear to have been sent to the Forensic Science Laboratory for comparison with the crime empty, yet the other evidence available on record in the form of eye-witnesses account, medical evidence and the reports of the Chemical Examiner and the Serologist are sufficient to connect the accused with the offence. Admittedly, substitution is a rare phenomenon.
As mentioned above, there was no logical reason for substituting the appellant/accused for the real culprit.
22.The prosecution evidence on record proves the prosecution story to the hilt while the ,defence version of the accused is very feeble and does not inspire confidence at all. Under .the circumstances, there is no justified on for interference in the impugned judgment in any manner. It may be mentioned here that the circumstances of the case and also the evidence on record had not provided any mitigating circumstances which may entitled the appellant/accused to a lesser punishment.
23.So far as the revision petition filed by the State for the enhancement of the compensation under section. 544-A, Cr.P.C. is concerned. the same is also without any justification as the amount of compensation awarded by the learned trial Court i,e, Rs,1,00,000 to be given to the legal heirs of the deceased as compensation seems to be in order and is fully justified.
24.In view of what has been discussed above, we uphold the conviction of the appellant on all the charges and dismiss the criminal appeal filed by the appellant (Criminal Appeal No,44-J of 2002) and also the criminal revision filed by the State (Criminal Revision No,280 of 2002).
25.The sentence of death awarded to the appellant by the learned trial Court is confirmed and the Murder Reference hearing No,66-T of 2001 is answered in the affirmative.