' M. NAEEMULLAH KHAN SHERWANI, J.--- The way in which the instant appeal arises is this.
Muhammad Waseem alias Naseem son of Nazeer Ahmad and Abdul Haq son of Muhammad Sadiq were tried by learned Judge, Special Court constituted under the Anti-Terrorism Act, 1997, Lahore Division, Lahore for committing mactation of two Constables, namely, Abdul Ghafoor and Ishtiaq Ahmad. The learned trial Judge by virtue of his judgment dated 9-8-2001, found them guilty of the said charge, convicted and sentenced them as under:--
(I) Under section 302(b)/34, P.P.C.: ' To death each on two counts with further direction to pay a sum of Rs,2,00,000 each to legal heirs of both the deceased Constables by way of compensation as envisaged by the relevant .Provisions of section 544-A, Cr.P.C. Or in default thereof to undergo imprisonment for six months each.
(II) Under section 392/34, P.P.C.: ' To rigorous imprisonment for ten years each with a fine of Rs,50,000 each or in default thereof to undergo rigorous imprisonment for six months each.
(111) Under section 7(i)(a) read with section 6(a) of the Anti-Terrorism Act, 1997: ' To death each on two counts.
(IV) Under section 7(ii) of the Anti-Terrorism Act 1997: To death each on two counts.
' Benefit of section 382-B, Cr.P.C. Was, however, extended to them.
2. Murder Reference No,40/T of 2001 seeks confirmation of said sentence of death awarded to Muhammad Waseem alias Naseem and Abdul Haq-convicts, whereas they have approached this Court by filing Criminal Appeal No,1320 of 2001 to call in question convictions and sentences passed against them by the said learned Judge. Both the matters are being disposed of together through this single judgment.
3. Occurrence of the alleged incident had taken place on 4-3-2001 at 9-15 a.m. Within the revenue estate of Village Chhapa Minara, situate at a distance of four miles from Police Station Saddar Sheikhupura. It was reported by Riaz Ahmad (P.W.15), A.S.-I. Of the said police station to Imdad Hussain, S.-I. (P.W.5) at the police station through complaint (Exh.P.J.), who on the basis thereof drew up F.I.R. (Exh.P.C. On the same day at 11-00 a.m. Correctly without ar.y addition or substraction on his part.
4. Riaz Ahmad, A.S.-I.-complainant (P.W.15) puts the matter succinctly by stating in complaint (Exh.P.J.) that on 4-3-2001 at about 9-15 a.m., he alongwith Muhammad Yousaf, C. No,1020, and Irshad Ahmad, C. No,733 was patrolling on official vehicle No,LOK-4310 driven by Muhammad Saleem, C. No,1766 in the area of village Chhapa Minara. At about 10-00 a.m., a wireless message was received that some terrorists carrying fire-arms while riding motorcycles have created an atmosphere of terrorism. They indulged into indiscriminate firing in the area of Police Station City B-Division and in consequence thereof some people were killed, whereas other sustained injuries.
On receipt of this information, the complainant alongwith his companions arranged a barricade on Chhapa Minara Road. In the meanwhile, four police officials of Tiger Squad, namely, Abdul Ghafoor, C. No,439, Ishtiaq Ahmed, C. No,634, Baqar Raza, C. No,1729 and Shaukat Ali, C. No,1361 on two motorcycles while chasing three terrorists on one motorcycle passed from the said road. The complainant alongwith his compatriots also followed the terrorists with a view to help the Constables of Tiger Squad. No sooner did the police party cover a distance of two acres, than the terrorists started firing at them. The police party also fired in retaliation, during course of which, Abdul Ghafoor and Ishtiaq Ahmad, Constables received injuries. In spite of that, the complainant and his companions chased the terrorists, who while running from the spot also took away rifle- MP5 of the injured police officials. After a few minutes, Abdul Ghafoor and Ishtiaq Ahmad succumbed to their injuries at the spot. Three terrorists were identified by the complainant, who are Waseem son of Nazir Ahmad, Abdul Haq son of Muhammad Sadiq, and Shakeel alias Hamza son of Nawaz Ali. In the meanwhile, people of the village also reached there. Waseem and Abdul Haq were apprehended by the police with the help of Tariq Mahmood son of Ghafoor Khan and Allah Yar, residents of the village. Pistol .30 bore and official rifle MP-5 stood recovered from Waseem at the time of his arrest. Shakeel alias Hamza made good his escape. The accused also furnished names of their other co-accused as Nadeem Usman alias Chhitto and an unknown, who looked like a Pathan. The accused while leaving from the spot left behind their motorcycle red colour Yamaha bearing Registration No,3783-LXL, which was also taken into possession under section 550, Cr.P.C.
' With this background, the complainant set the State functionaries into motion by getting the above-said F.I.R. Registered against the alleged wrong doers.
5. Immediately after registration of the case, Muhammad Farooq, S.-I./S.H.O. (P.W.18) took over the uphill task of investigation at the spot and proceeded to the venue of occurrence. He prepared inquest reports (Exhs.P.U. And P.V.) and injury statements (Exhs.P.W. And P.X.) of Abdul Sattar and Abdul Ghafoor deceased and dispatched their dead bodies to the mortuary under the escort of Saifullah, Constable (P.W.7) and Muhammad Malik, Constable (not produced) for autopsy purpose.
He collected blood-stained soil from the places where dead bodies of Abdul Ghafoor and Abdul Sattar were lying, made the same into separate sealed parcels and took into possession through memos.
' Exhs.P.S. And P.T., respectively, duly attested by Baqar Raza (P.W.16) and Muhammad Yousaf, Constable (not produced). He also secured 16 empties of .30 bore (P.17/1-16),
20. Empties of kalashnikovs (P.18/1-20), 23 empties of semi'-automatic rifle (official) P.19/1-23), 17 empties of G-3 rifle (P.20/1-17) and 9 empties of 38 bore revolver (P.21/1-9) from the place of occurrence, made them into separate sealed parcels and prepared seizure memos. Exhs.P.N., P.Q. And P.R., respectively, duly attested by the same set of witnesses. He prepared rough site-plan of the place of occurrence (Exh.P.AA.). He also got prepared site-plan of the place of occurrence in duplicate (Exhs.P.F. And P.F.1) from Ch. Hameed-ud-Din, Draftsman (P.W.12). He recorded statements of the relevant witnesses under section 161, Cr.P.C. Case property was handed over by him to Muharrir of the police station to be dealt with in accordance with relevant rules.
' Thereafter, on 5-3-2001, Ghulam Qasim Niazi, D.S.P. (P.W.19) carried out investigation into the crime. After completing investigation, challan was prepared and submitted to the Court for trial of the accused in accordance with law.
6. On receipt of challan, the trial Court subjected it to necessary scrutiny and found that fit in all respects to proceed with the trial. After observing all legal formalities, the learned trial Judge framed charge against the appellants and put the same to them, to which they pleaded not guilty and claimed to be tried. Thereafter, the prosecution was called upon to adduce best available evidence in order to achieve success in the trial.
7. The prosecution ventured to produce as many as nineteen prosecution witnesses, out of which evidence of Dr. Mubashir Ahmad (P.W.1), Dr. Akhtar Rashid (P.W.2), Dr. Amjad Bashir (P.W.3), Dr. Farooq Anwar (P.W.4), Allah Yar (P.W.14), Riaz Ahmad, A.S.-I. (P.W.15), Baqar Raza (P.W.16) and Shaukat Ali (P.W.17) is of great significance, whereas that of rest of the witnesses is of formal nature.
' P.W.1 Dr. Mubashir Ahmad, D.M.S. Being Secretary of the Medical Board consisting of Dr. Akhtar Rashid Malik, M.S. (P.W.2), Dr. Amjad Bashir (P.W.3) and Dr. Farooq Anwar (P.W.4) conducted autopsy on dead bodies of Abdul Ghafoor and Ishtiaq Ahmad deceased and found five and three fire-arm wounds on their persons, respectively, According to Board's opinion, they died due to severe shock and haemorrhage.
' P.W.14 Allah Yar did not support prosecution story and was declared hostile. He was cross- examined by the learned prosecutor, who failed to make any gain out of that.
' Riaz Ahmad, A.S.-I. Complainant (P.W.15), Baqar Raza (P.W.16), and Shaukat Ali (P.W.17) appeared as eye-witnesses of the occurrence. They in a nutshell reiterated the story of the F.I.R. They fully supported the prosecution case.
8. Learned prosecutor after tendering in evidence reports of the Chemical Examiner (Exhs.P.B.B. And P.C.C.), those of Serologist (Exhs.P.D.D. And P.E.E.), and report of Ballistic Expert (Exh.P.F.F.) declared the prosecution case close.
9. Now the trial had entered into next important phase pertaining examination of the accused under section 342, Cr.P.C. All the incriminating material was put to them to seek their explanation with regard to the accusations brought against them and also to know their respective standpoint.
They proclaimed their absolute innocence in the matter. They opted to make statements under section 340(2), Cr.P.C. On oath in disproof of the allegations levelled against them and got their statements recorded as such.
10. Upon culmination of the trial, the trial Court after taking into its full consideration all the material available on the record pronounced verdict of guilt against the appellants as aforementioned.
Hence this appeal.
11. The way in which learned counsel for the appellants in his forceful arguments to this Court has put the matter is like this. He submits:--
(i) That prosecution story is unnatural, improbable, and unbelievable one. All the witnesses are police officials. They had vital interest in success of the case.
(ii) That the eye-witnesses are wholly unreliable. Their testimony is neither true nor confidence- inspiring.
(iii) That ocular account is not in line with the medical evidence.
(iv) That recoveries of weapons and empties are extremely doubtful.
(v) That the motorcycle allegedly recovered from the spot was neither deposited in the police station godown by the investigator nor produced in Court.
(vi) That out of two public witnesse, one, namely, Allah Yar (P.W.14) was produced, who did not support prosecution version in its entirety. He was extensively cross-examined after being declared hostile. The other independent witness Muhammad Tariq was, however, dropped by the prosecution.
(vii) That the empties fallen from the police weapons were never dispatched to the office of Forensic Science Laboratory, which indicates that investigation was dishonest.
(viii)That the police fabricated a false story to crush forceful protest of the public.
(ix) That this is a novel case of its own type in which the appellants appeared as witnesses in their own defence and made statements after taking oath on Holy Qur'an. They proclaimed their absolute innocence in the matter and stated that they had not committed the crime in question.
This circumstance was enough to shatter the prosecution version.
12. Conversely, learned counsel for the State supports judgment of the trial Court by submitting that the F.I.R. Was lodged within a short span of time, which rules out possibility of fabrication of a false story; that Riaz Ahmad (P.W.15), &gar Raza (P.W.16) and Shaukat Ali (P.W.17) have fully corroborated the F.I.R. Version. They also corroborated each other's statement on all material points like time, date, place of occurrence, and weapons deployed by the appellants during the occurrence; that they have described the event fully well; that they had no enmity against the appellants to furnish a false voucher to wish them maximum harm by deposing against them; that discrepancies or improbabilities of minor character can be lightly ignored; that small discrepancies occurring here and there do not bear any destructive value; that report of the Forensic Science Laboratory is in the positive and that medical evidence also supports the prosecution version.
13. We have with full care and devotion heard and soberly considered respective arguments of learned counsel for both the sides. We have also gone through the evidence with their able assistance to ascertain truth behind the matter.
14. Evidence is the basis of justice. The survey of evidence reveals that in the instant case, occurrence took place at 10-00 a.m. On 4-3-2001 in the area of village Chhapa Minara, located at a distance of approximately four miles from the police station concerned. F.I.R. Stood registered at the police station on the same day at 11-00 a.m. -within one hour of the occurrence. It may fearlessly be stated here that F.I.R. Regarding occurrence stood registered expeditiously. Chances of fabrication of a fictitious tale of occurrence out of deliberations and consultations are ruled out altogether. It is a prompt and straight forward F.I.R. Based upon genuine facts of the case. Version of Riaz Ahmad, A.S.-I.-complainant (P.W.15) contained in the F.I.R. Is legitimate. On receipt of wireless message that some terrorists after committing murders in the city of Sheikhupura had gone towards Chhapa Minara by means of a motorcycle, police officials of all ranks became vigilant. Four Constables of Tiger Squad, namely, Abdul Ghafoor, Ishtiaq Ahmad, Baqar Raza and Shaukat Ali, who had two motorcycles with them gave them a chase, whereas Riaz Ahmad, A.S.-I.- complainant (P.W.15) alongwith a contingent of Police officials set up a barricade near Chhapa Minara. The hearts of people were engulfed with fear, fright and horror because of terrorist activity committed by the appellants. Police officials proved their worth as they intercepted armed terrorists, namely, Muhammad Waseem alias Naseem, Abdul Haq and Shakeel alias Hamza, who were endeavouring best to make good their escape after having killed many innocent persons.
Two Constables, namely, Abdul Ghafoor and Ishtiaq Ahmad while chasing them fell a prey to the indiscriminate firing of the terrorists and laid their lives in the accomplishment of their noble design. Allah Yar (P.W.14) and Muhammad Tariq P.W. (not produced) also helped the police in their untiring efforts, to apprehend the appellants. Riaz Ahmad-complainant, Baqar Raza and Shaukat Ali (P.Ws.15 to 17) spared no efforts to apprehend the terrorists. There were still three more Constables, namely, Yousaf, Irshad and Saleem, who were not produced at the trial. The police party utilizing their professional skill, tacts and experience became successful in arresting the appellants at the spot, whereas Shakeel alias Hamza could not be arrested. The manner, mode and story of lengthy chase of the appellants could be furnished by the potential eye-witnesses of the occurrence, namely, Riaz Ahmad-complainant, Baqar Raza and Shaukat Ali (P.Ws.15 to 17). The police party bravely defended their own person by resorting to firing at the appellants in the exercise of right of self defence. Firing done by the police party made the appellants quiet, otherwise they would have carried their terrorist proceedings to the maximum extent. Their spot arrest alongwith weapons and other incriminating articles has furnished a solid proof of guilt of the appellants. We do not entertain a small speck of doubt with regard to genuineness of the prosecution version. The case has been lodged against the appellants in real and sound premises.
The story is real, natural, probable and confidence-inspiring.
15. Weapons secured by the police at the spot from the appellants and empties seized were dispatched to the Office of Forensic Science Laboratory, which after due comparison furnished report Exh.P.F.F. Which is in the positive.
16. Prosecution in order to establish charge against the appellants produced three eye-witnesses, namely, Riaz Ahmad, Baqar Raza and Shaukat All (P.Ws.15 to 17). They described the event at greater length. They made consistent statements with regard to date, time and place of occurrence: They corroborated each other's statement on all material facts of the case. They agree in their testimony. They had means for gaining correct information of the occurrence and had no interest in E concealing the truth or deposing falsely against any one. They had no grudge, grouse, malice or spite against the appellants. They stated all material facts honestly, fairly and with much exactitude. Small discrepancies or some omissions from their statements could not be sufficient to brush aside their solid testimony, more especially when their presence at the spot is natural. Their presence at the spot cannot be doubted.
17. Appellants provided their full particulars to the Investigating Officer. Muhammad Waseem appellant when examined under section 340(2), Cr.P.C. Stated that his name is Muhammad Naseem and not Muhammad Waseem. It is absolutely incorrect. His name was not given by anybody else, but when examined under section 342, Cr.P.C. He gave his name as Muhammad Waseem alias Naseem and also alleged that there was a boy with the name of Muhammad Waseem, but he was never apprehended by the police. The assumption of a false name, or alias is one of the greater difficulties encountered by the police, but this was overcome by the Investigating Officer most effectively. The major reasons for assuming a false name are that either a man has escaped from confinement or he is obliged to fly in consequence of some heinous crime imputed or in his vital attempt to escape legal consequence of crime imputed to him, but in this case his real name cannot be doubted. His false name has fallen like an autumn leaf. These days no person wants to earn wrath of the terrorists of this kind by becoming a witness in the case.
Furthermore, they may not like to experience the discomforting procedures of investigation and lengthy trial process. Conviction on the statements of the police witnesses when natural can be safely made. Learned counsel for the State relied upon Yaqoob Shah's case reported as PLD 1976 SC 53. Police Officials are as good witnesses as any other citizen, unless and until malice, bias or animosity is established against them. Mere suggestions do not constitute legal proof of the facts suggested. Suggestion was put before the witnesses that they were never arrested from the spot nor occurrence was witnessed by the witnesses is not sufficient to controvert evidence of the prosecution witnesses. The best thing should have been to produce evidence in defence to demolish the prosecution version. Accused are best expected to endeavour hard to establish their case or defence if it is a good one, and, therefore, to produce all evidence in their power that would support their allegations or cause. Their total failure to produce what evidence they could have produced, if it existed, is, therefore, open to inference that it did not exist at all
18. We have examined statements of the accused and their respective pleas, which are contradicted by physical circumstances of the case. The appellants behaved like dare devils and desperadoes and there is growing tendency amongst them to go ahead to make statements on the Holy Book to save their skin. It does not cast them much to make such an oath. There is no legal sanctity behind such a 'statement by the accused or any one else.
19. This is a novel case in which the best circumstance which led to the spot arrest of the appellants is as clear as the daylight. They committed atrocious crime against human beings and took to their heals to escape arrest. Wireless message could be relayed in no time. Police people already available on the road performing 'patrol duties became alert and started chasing them, which resulted into slaughter of two innocent Constables. Their timely arrest saved many others. Crime committed by them was under public condemnation. The appellants have committed brutal murders in a most barbaric manner.
20. Post-mortem report reveals that Abdul Ghafoor deceased suffered five injuries, whereas Ishtiaq Ahmad deceased received three injuries. The fact remains that both the deceased suffered fire- arm injuries. Eyewitnesses driven into such a situation are not expected to describe injuries and their location with scientific precision. Positions of the assailants and the victims undergo rapid changes and may not be described properly by the witnesses, but that would not mean that they are not the witnesses of the occurrence. Arrest of the appellants at the spot by the witnesses is a positive proof of presence of witnesses at the spot. In our view, medical evidence is in line with the ocular account. Whether shots hit from front or back would hardly matter. We believe that whatever witnesses 'alleged and stated is based upon truth. They are wholly reliable witnesses having no adverse interest against the appellants. Their evidence is free from all sort of pollution.
21. We feel that the punishment to be inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. No extenuating circumstances are available! We are satisfied that proportionate sentences have been passed against the K appellants, which need no indulgence by this Court. We are satisfied with the guilt of the appellants. Prosecution has successfully brought home guilt to the appellants by production of eye-witnesses, who are wholly reliable, recoveries of weapons from the appellants at the time of their arrest, empties, report of the Forensic Science Laboratory and medical evidence.
22. For all these reasons, we dismiss this appeal being meritless. Death sentence awarded to the appellants is confirmed and Murder Reference is answered in the affirmative.