' TANVIR BASHIR ANSARI, J.--- Four persons namely Mehmood Khan, Ejaz Ahmad, Yar Muhammad And Tabeer Ahmad were tried under sections 302/364/34, P.P.C. For the murder of Amjad Mahmood by the learned Special Judge, Suppression of Terrorist Activities, Islamabad. The trial Judge vide his judgment dated 31-1-2000 convicted Yar Muhammad and Tabeer Ahmad under section 302(b)/34, P.P.C. And sentenced them to death plus compensation of Rupees one lac each to be paid to the legal heirs of the deceased or in default 6 months S.I. Each. The remaining two accused namely Mehmood Khan and Ejaz Ahmad were acquitted of the charge on account of benefit of doubt.
2. This criminal appeal has been filed by Tabeer Ahmed and Yar Muhammad against their conviction and sentence.
3. The prosecution case, in brief, is that on the night of 6-6-1996 at 12-30 a.m. Complainant Khalid Mahmood alongwith his brother Nasir Mahmood and Ishtiaq Asif P.Ws. Were present in the house of his younger brother Amjad Mehmood. He alleged that Tabeer Ahmad rang the call bell and also called Amjad Mehmood to come out as he had to talk with him on an important issue. On hearing the call of Tabeer, his brother Amjad switched on the outside bulb and went near Tabeer. After shortwhile, his brother Amjad Mehmood raised alarm and on hearing the alarm, Khalid Mehmood, alongwith Nasir Mehmood and Ishtiaq Asif ran out of the house and saw that Mehmood Khan armed with .30 bore pistol, Yar Muhammad armed with .222 rifle, Tabeer Ahmad and Ejaz Ahmad armed with .30 bore pistols were grappling with Amjad Mehmood and were forcibly putting him in a Suzuki Pick-up bearing No,RIN-8244. Yar Muhammad appellant was exhorting at the top of his voice that they would teach him a lesson for the humiliation. When the complainant and the P.Ws.
Reached near the Suzuki, the accused persons had put Amjad Mehmood in the Suzuki Pick-up and abducted him and sped towards Tumair while firing.
' The motive for the occurrence was that at about 7-30 p.m. Yar Muhammad appellant while driving Suzuki pick-up bearing No,RIN-8244 had hit their maternal-cousin Shahid Mahmood near High School Pind Begwal and had run away and said Shahid was injured. The complainant also alleged that when his brother Amjad Mehmood learnt of the incident then he stopped the said Suzuki near Tumair Chowk and admonished Yar Muhammad and had also slapped Yar Muhammad. In order to take revenge of the dishonour, Yar Muhammad alongwith his co-accused had abducted Amjad Mehmood. The complainant expressed his apprehension that the culprits would murder his brother and reported the matter to the police for legal action.
4. To prove its case, prosecution examined as many as twelve witnesses.
5. Khalid Mehmood P.W.1 reaffirmed the contents of his complaint Exh.P.A. Both P.W.1 and Nasir Mehmood P.W.2 gave the eye-witness account of the abduction of Amjad Mehmood and also divulged the motive of the occurrence which led to the murder of Amjad Mehmood. These P.Ws.
Also deposed that they alongwith police were present at Chirah Chowk when a wireless message was received by the police that a dead body was lying at Painth Road which was identified by P.W.1 and recovery memos. Were signed by the P.Ws. P.Ws.1 and 2 also witnessed the recovery of Suzuki Pick-up No,RIN-8244 which was found near the tunnel of Simly Dam and from which police recovered seven empties of .222 rifle.
' Fiaz Akram P.W.3 stated to be taking his truck to Patriata on the night of 5-6-1996 which was driven by Muhammad Rafique driver when he saw Suzuki bearing No,RIN-8244 driven by Yar Muhammad appellant overtake his truck and that he saw Ijaz Mehmood Khan and Tabeer Ahmed seated in the rear side of the Suzuki. According to him the Suzuki was heading towards Kror.
6. Dr. Muhammad Arshad P.W.6 conducted the post-mortem examination on the dead body of Amjad Mehmood on 6-6-1996 and found the following injuries:--
(1) Right thumb tip was amputated because of the fire-arm and it was blown off.
(2) A wound of entry measuring 3/4 inch on the lateral surface of forearm 4 inches above the left wrist. There was no burning/blackening or tattooing left whom the left arm was totally deformed as there was fracture of radius and ulna.
(3) A wound of exit 1 inch diameter on the medial surface of left forearm.
(4) A wound of entry 1 inch diameter on the left chest front 1-1/2 inch below and lateral to the left nipple, transversely place surrounded by collar of abrasion. There was no burning/ blackening or tattooing.
(5) A wound of entry on left chest front 1 inch diameter surrounded by collar of abrasion. No burning/blackening or tattooing was present. It was just below and medial to the left nipple and was obliquely placed. Distance between injuries Nos.4 and 5 was 1/2 inch.
(6) A bluish bruise swelling on lateral eurvature of right chest on lower region about 2 x 3 inches was present. Incision was made and smooth fragment of bullet was recovered.
(7) Left thumb tip was also blown off.
' In the opinion of the doctor, the cause of death was extensive injuries to both the lungs and heart.
These injuries were due to injuries Nos.4 and 5. These injuries were ante-mortem and caused by fire-arm. The probable time between injury and death was immediate and between death and post-mortem within 36 hours. After the post-mortem examination, he delivered the last-worn clothes of the deceased and the sealed phial said to contain two lead pieces of bullets. The injuries mentioned above were sufficient to cause death in ordinary course of nature. Exh.P.F. Is the copy of the post-mortem examination report and Exh.P.F./1-2 are the diagram of the injuries which are in his hand and bear his signatures. Exh.P.G. Was the request of the police for autopsy of the deceased which contains his endorsement and is signed by him.
7. Abdul Rashid, S.-I. P.W.11 recorded the formal F.I.R. Exh.P.A./1 on the presentation of the complaint Exh.P.A. On 6-6-1996. He went to the place of occurrence and drafted the rough sketch of the place of abduction through memo. Exh.P.K. He recorded the statements of the P.Ws. On the receipt of the information that the dead body of a male person was lying on the Painth Road, he accompanied the complainant party to the place of the recovery of the dead body which was identified by the complainant party. He took the dead body into possession and prepared the inquest report Exh.P.C.
He inspected the spot and conducted the search of the dead body and recovered the currency notes Exh.P.1 to Exh.P.17 and two visiting cards Exh.P.18 to Exh.P.19. He dispatched the dead body to the mortuary through Majid Ali, Constable P.W.8 for autopsy. He prepared recovery memos. Exh.P.B.
And Exh.P.C. Nasir Mahmood and Khalid Mahmood P.Ws. Attested both the recovery memos. On the receipt of the information, he recovered Suzuki Exh.P.21 which was present near Sim Dam. He secured the same and recovered 7 spent cartridges Exh.P.20/1-7 of .222 rifle and prepared the recovery memo. Exh.P.D. He drafted the rough sketch of place of recovery of Suzuki Exh.P.M. And recorded the statements of the witnesses. He delivered the case property to Amir Umer, A.S.- I./Moharrir P.W.7 for getting it in safe custody of Malkhana. He arrested Tabeer Ahmad, Yar Muhammad and Ejaz Ahmad accused after 8/10 days of the occurrence and he arrested Mehmood Khan accused on 4-7-1996. Tabeer Ahmad and Yar Muhammad led to the recovery of crime weapons. On 22-6-1996, Yar Muhammad led to the recovery of .222 rifle and two live bullets which were secured by him vide memo. Exh.P.H. And made it into a sealed parcel and drafted a rough sketch Exh.P.H./1. Tabeer Ahmad also led to the recovery of .30 bore pistol Exh.P.23 and three live bullets Exh.P.24/1-3. He drafted the memo. Of recovery Exh.P.J. And rough sketch of the pistol Exh.P.J./1 and rough sketch of the place of recovery Exh.P.J./2. He recorded the statements of the recovery witnesses and thereafter the investigation was transferred to C.I.A. Police. Majid Ali, Constable P.W.8 accompanied Abdul Rasheed S.-I. P.W.11 to the house of the deceased on 6-6- 19.96 at 2-00 midnight. The Investigating. Officer delivered the dead body to him and he escorted the dead body to the mortuary in District Hospital, Rawalpindi. Muhammad Asif, Constable P.W.9 received the three parcels of this case from Amir Umer, A.S.-I./Moharrir P.W.7 and he delivered the parcels to the relevant office. He returned that parcel after objection and delivered it to Amir Umer Moharrir on 24-4-1996 and Moharrir again delivered the parcel of .222 rifle and that parcel of lead bullet and he took the same to the Office of Forensic Science Laboratory at Lahore and delivered the intact there on 25-6-1996. Amir Abdullah, Constable P.W.10 joined the investigation of this case on 22-6-1996 and in his presence, Yar Muhammad appellant led to the recovery of .222 rifle from the bushes near his house which was wrapped in a polythene bag of white colour. The Investigating Officer secured the same and unloaded the rifle and recovered 2 live bullets and prepared the recovery memo. Exh.P.H. On the same day, Tabeer Ahmad appellant also led to the recovery of .30 bore pistol from the bushes near his house which was kept in a polythene bag of black colour. The appellant produced the same before the Investigating Officer who unloaded the same and recovered 3 live bullets from the magazine of the pistol and prepared recovery memo.
Exh.P.J. He and Tahir Abbas, Constable P.W. Attested both the recovery memos. Sheikh Zubair Ahmed, Inspector C.I.A. P.W.12 after the investigation found all the accused guilty and submitted their challan in the Court.
8. The rest of the evidence is more or less of a formal nature.
9. The appellants in their statements under section 342, Cr.P.C. Professed innocence and repudiated the allegations of the prosecution. Only Mehmood Khan accused opted to lead evidence in his defence. Liaquat Hayat Khan, Inspector appeared as D.W.1 in the defence of Mahmood Khan accused and closed his defence evidence.
10. Believing the prosecution evidence the learned trial Judge convicted the appellants and awarded them sentence as 'indicated above. The learned trial Court was of the view that both Khalid Mehmood and Nasir Mehmood P.W.2 remained consistent in their stand that Amjad deceased went out of the house for the last time on the call of Tabeer Ahmed accused. It was also observed that although it is stated by both Khalid Mehmood and Nasir Mehmood in their examination-in-chief that all the four accused were scuffling with Amjad and had forcibly taken the deceased in the Suzuki Pick-up, yet in cross-examination Nasir Mehmood stated that only Tabeer Ahmed and Mehmood accused were grappling with Amjad and were trying to overpower him. The learned trial Court found the evidence sufficient to convict appellants Tabeer Ahmed and Yar Muhammad but acquitted their co-accused, Ijaz Ahmed and Mehmood Khan on tile ground that there was no direct or indirect motive proved against the said acquitted accused. It was also found that substantial incriminating evidence was not brought on the record against the acquitted accused.
11. Malik Rab Nawaz Noon, Advocate, the learned counsel for the appellants challenged the judgment of the trial Court on the grounds that the evidence produced by the prosecution against the appellants particularly Tabeer Ahmed was of similar nature as was produced against the acquitted co-accused namely Ijaz Ahmed and Mehmood Khan. According to the learned counsel, the entire evidence produced on the record, if properly appreciated does not show the case of appellant Tabeer Ahmed to be any different from the case of the acquitted accused. The learned counsel invoked the rule of consistency and submitted that the learned trial Court fell in error in making departure from this rule in respect of appellant Tabeer Ahmed. To support his submission, reference was made to Muhammad Sharif v. The State 1996 SCMR 866, wherein, it was held that when evidence against the acquitted accused and there is manifestly identical and not distinguishable from each other the rule of the consistency requires that appellants should have similar treatment by allowing them the same benefit. The learned counsel further contended that in the entire evidence produced on the record, no motive has been directly or indirectly imputated against the appellants. The impugned judgment was criticized on the ground that' if the co- accused could be acquitted on the basis of absence of motive, the appellants were equally entitled to the said treatment as no motive was proved against the appellants. The learned counsel for the appellants further assailed the impugned judgment on the ground that there was no direct evidence of murder. According to the case of prosecution itself, the dead body was found lying unattended and that the circumstantial evidence produced by the prosecution could not prove the guilt of the appellants beyond all shadow of doubt.
12. Turning to the evidentiary value of the medical evidence, the learned counsel for the appellants submitted that it is merely indicative of type and dimension of the injuries as well as type of weapon used to cause such injuries and also of cause of death. The medical evidence by itself and without corroboration cannot and did not in any manner connect the appellants with the crime.
According to him in the absence of the version of the occurrence of murder by any eye-witness the medical evidence shall be of no avail to the prosecution. To support his submission, reference was made to Saif Ullah Khan and 5 others v. The State 1986 PCr.LJ 2794. Further reliance was placed upon Mehmood Ahmed and 3 others v. The State 1995 SCM R 127, wherein it has been held that medical evidence by itself shall not establish the identity of the accused. It was further contended by the learned counsel for the appellants that even if the prosecution evidence was to be believed that appellant Tabeer was the first one to call the deceased and ring the call bell this fact alone could not make the case of appellant Tabeer Ahmed any different from the acquitted accused. He relied upon Sami Ullah Tariq v. The State 2000 PCr.LJ 1305 to contend that if the real perpetrator of the crime cannot be safely specified or picked up either through any other credible evidence, such fact alone would not be sufficient to convict any of the accused. He further stated that even if the recovery of the .30 bore pistol was attributed to the pointation of appellant Tabeer Ahmed yet this alone would not set apart the case of Tabeer Ahmed as it was not proved through recovery of empties or otherwise, that a .30 bore pistol was used as a weapon in the offence.
13. On the other hand, Syed Sajjad Hussain Shah, Assistant Advocate-General for State fully supported the judgment of the trial Court. He contended that the occurrence of abduction was fully made out through the prosecution evidence and the initial case under section 364, P.P.C. Was promptly registered. According to him the complainant had given the motive for the offence which was proved on the record. The discovery of the dead body of Amjad Mehmood early on the next morning would substantiate the charge of abduction for the purpose of causing death. He further submitted that the medical evidence supported the ocular version and the abscondence of the accused and their subsequent conduct was sufficient to, prove the case against the appellants.
14. We have considered the arguments advanced by the learned counsel for the parties and have reviewed the entire evidence that has been produced the prosecution, the statements made under section 342, Cr.P.C. And the attending circumstances of the case.
16. P.W.1' Khalid Mehmood and P.W.2 Nasir Mehmood are the eyewitnesses of the occurrence of abduction of Amjad Mehmood. Khalid Mehmood in his examination-in-chief stated to have seen Mehmood Khan, armed with .30 bore pistol, Yar Muhammad having 222 rifle, Tabeer Ahmed with .30 bore pistol and Ijaz Ahmed with .30 bore pistol scuffling with Amjad and were forcibly taking Amjad to Suzuki Pick-up No,RIN-8244, whereas, Yar Muhammad shouted that Amjad would be given a lesson for causing insult. P.W.2 Nasir Mehmood also stated to have seen all the four scuffling with Amjad. In cross-examination, however, he stated that two of the accused namely Tabeer Ahmed and Mehmood were grappling with Amjad. P.W.3 Fiaz Akram also states the presence of all the four accused in Suzuki Pick-up when it overtook the truck that he was travelling in. The medical evidence of Dr. Muhammad Arshad P.W.6 does not connect any accused with murder. The detailed statement of P. W.11 provides a comprehensive story supporting the case of the prosecution.
17. From a careful examination of the evidence on the record, we have found the case of Tabeer Ahmed appellant to be manifestly identical with the case of Ijaz Ahmed and Mehmood Khan the two acquitted accused but the case of appellant Yar Muhammad is on a different .\footing. We have arrived at this conclusion on the basis of the following considerations:--
(i) That no motive directly or indirectly has been proved against the appellant Tabeer Ahmed and the acquitted accused Ijaz Ahmed and Mehmood Khan;
(ii) that according to eye-witness account of Khalid Mehmood P.W.1, all the four accused were found grappling with Amjad Mehmood at the time of abduction. P.W.2 Nasir Mehmood in his examination-in-chief named all the four accused to have been scuffling with Amjad Mehmood. In cross-examination, however, he named Taheer Ahmed and Mehmood Khan as the accused who were grappling with Amjad. This admission of P.W.2 also brings the case of appellant Tabeer Ahmed at par with the acquitted accused Mehmood Khan.
(iii) during the act of abduction, while the Suzuki Pick-up sped away, no firing was alleged specifically against any accused;
(iv) appellant Taheer Ahmed was stated to be armed with .30 bore pistol. No empties corresponding to a .30 bore pistol were recovered either from the Suzuki or near the dead body. No matching bullet or piece thereof was recovered from the dead body. Even if .30 bore pistol was recovered upon the pointation of appellant Tabeer Ahmed, there is no evidence on the record that, the said weapon was used in the offence of abduction or murder;
(v) the mere act of Tabeer Ahmed of ringing the call bell or calling out the deceased would not make his case any different than the case of the acquitted accused.
11. On the other hand, the prosecution has been able to prove its case against the appellant Yar Muhammad. Firstly, a specific motive was attributed and proved against Yar Muhammad. It was established that earlier on the day of occurrence on 5-6-1998 at about 7-30 p.m. Yar Muhammad while driving Suzuki Pick-up bearing No,RIN-8244 had hit maternal cousin Shahid Mehmood of Amjad etc. According to the prosecution when Amjad Mehmood deceased learnt of the incident, he stopped the said Suzuki near Tamair Chowk had admonished Yar Muhammad and also had slapped him (Yar Muhammad). It was to take revenge of the dishonour that Yar Muhammad committed the offence alongwith his co-accused. Secondly, the Lalkara that Amjad Mehmood shall be taught the lesson for causing insult was raised by Yar Muhammad. Thirdly, Yar Muhammad was stated to be armed with 222 rifle. 7 empties of 222 rifle were recovered from the Suzuki. The Suzuki RIN-8244 also belonged to Yar Muhammad. Fourthly 222 rifle was recovered at the pointation of Yar Muhammad.
17. In our view, on the evidence in this case, as it stands, there is no legal basis on which the case of the appellant Tabeer Ahmed can be treated differently from the case of acquitted accused. From the appreciation of the evidence, we are not convinced that the case of appellant Tabeer Ahmed could have been treated differently from the case of acquitted accused. As far as the appeal of Yar Muhammad is concerned, the prosecution has been able to prove its case beyond any shadow of doubt.
18. Resultantly, the appeal to the extent of Tabeer Ahmed is accepted and he is acquitted. He may be released, if not required in any other case. The appeal of Yar Muhammad, is however, dismissed maintaining the judgment, dated 31-1-2000 of the Special Judge, Suppression of Terrorist Activities, Islamabad.
19. In view of the above discussion the death sentence awarded to Yar Muhammad is confirmed.