1. Crl. Appeal No. 456-T of 2001.
2. BASHIR A. MU J AHID, J.- Iftikhar Hussain son of Saad Ullah, Muhammad Younas son of Mehdi Khan, Khaliq Dad son of Muhammad Sultan and Niaz Muhammad alias Chacha son of Khuda Bakhsh have challenged judgment dated 26.11.2001 whereby they were convicted under Section 396, PPC and Khaliq Dad and Niaz Muhammad were sentenced to death with a i.e of Rs. 75,000/- each as compensation payable to the legal heirs of deceased Ahmad Khan while Iftikhar Hussain and Muhammad Younas were sentenced to imprisonment for life with a i.e of Rs. 25,000/- each payable to the legal heirs of deceased as compensation, in default of payment to further undergo six months' S.I. Niaz Muhammad and Khalid Dad were further convicted under Section 395, PPC for committing dacoity and sentenced to imprisonment for life each and a i.e of Rs. 25,000/- each, In default thereof they had to undergo further three months' R.I. Niaz Muhammad was also convicted under Section 337-F5, PPC for causing hurt to Ghulam Rukayya and sentenced to i.e years' R.I. While Khaliq Dad was convicted under Section 337-A(l), PPC for causing hurt to Yaqoob Khan and sentenced to two years' R.I. All the four appellants were also convicted under Section 7 of Anti- Terrorism Act, 1997 and sentenced to imprisonment for life with a i.e of Rs. 25,000/- each, in default thereof to further undergo two months' S.I. Each.
3. The brief facts of the prosecution case are that F.I.R. No. 367 (Ex.PD/1) was lodged on the statement Ex.PD of Muhammad Shoaib recorded with Nazir Ahmad, Inspector/SHO, P.S. City Chakwal under Sections 302, 396, 460, 458, 334, 337-F5, 394, PPC read with Section 17 of Haraba (Enforcement of Hudood) Ordinance, 1979, with the allegation that on 26.12.1999 at 8.45 p.m., the complainant along with his real brother Muhammad Yaqoob and Tanveer- ul-Islam were present in 'baithak' of his house situated in Faisal Colony, Chakwal. Meanwhile, four unknown persons one armed with kaiashinkov and three armed with pistols arrived there and on gun point they demanded what the complainant had. The complainant handed over violet containing Rs. 700/800 with a copy of Identity Card. Likewise, his brother Tanveer-ui-Islam also handed over his violet containing Rs.
4. 4,000/- and Identity Card along with telephone diary. Then the accused went inside the house and threatened the complainant party for dire consequences and three of them entered into next room where Ahmad Khan brother of the complainant was offering his prayers and altercation took place and one of the accused who was subsequently identified Nazir fired at Ahmad Khan, brother of the complainant hitting on his right ear. Thereafter, Khaliq Dad fired at Yaqoob Khan, PW-16 and Ghulam Roqia PW-12 was fired at by Niaz accused and then the accused fled away from the spot.
5. Nazir Ahmad, Inspector PW-22 after recording the statement Ex.PD of Muhammad Shoaib, complainant/PW-17 sent the same for registration of formal F.I.R, and himself arrived at the place of occurrence, took the dead-body of Ahmad Khan into possession and prepared the injury statement and inquest report Ex.PV and despatched the dead- body for post-mortem examination through Ghulam Muhammad, FC and he also took into possession one empty of pistol 30-bore P8 through memo. Ex.PJ and also took into possession blood-stained earth with cotton and one cap P7 through memo. Ex.PI. He also prepared the injury statements of Muhammad Yaqoob and Ghulam Roqia, PWs. Ghulam Muhammad, FC produced the last worn clothes of the deceased before him which were taken into possession through memo. Ex.PE. On 27.12.1999, he recorded the statements of Muhammad Bashir, PW-10 under Section 161, Cr.P.C. He got prepared the site plan of the place of occurrence. He arrested Iftikhar Hussain and Younas on 20.1.2000 and lodged them in judicial lock-up and arrange for their identification parade which was held on 7.2.2000 under the supervision of Muhammad Nadeem Akhtar, M1C/PW-15 wherein they were identified by Muhammad Bashir, PW-10. On 20.2.2000, Iftikhar Hussain led to the recovery of Kalashnikov P8 along with 25 live cartridges P9/1-25 which were taken into possession through memo. Ex.PM. On 21.2.2000, Muhammad Younas accused led to the recovery of Kalashnikov P10 along with 10 live cartridges PI 1/1-10 which were taken into possession through memo. Ex.PN. He arrested Khaliq Dad on 23.2.2000 who was already in police custody in the instant case. On 26.4.2000 identification parade was arranged wherein Khaliq Dad and Niaz were identified by Muhammad Shoaib PW-17, Muhammad Yaqoob PW-16 and Ghulam Roqia PW-12 in the identification parade supervised by Nasrullah Ranjha, MIC/PW-18. On 5.5.2000, Khaliq Dad led to the recovery of pistol 30-bore P12 along with 7 live cartridges PI3/1-7 which were taken into possession through memo. Ex.PO. On 29.7.2000, the investigation of the case was entrusted to Muhammad Aslam, Inspector PW-19 when he was posted at CIA, Chakwal and he joined Niaz in investigation who pointed out the place of occurrence and memo. Ex.PT was prepared and he also led to the recovery of pistol P14 with six live cartridges PI 5/1-6 which were taken into possession through memo. Ex.PP. On 4.8.2000, he also arrested Nazir accused in the instant case and he arranged for identification parade of the accused. Nazir co- accused was murdered in police encounter. After completion of the investigation, challan of the case was submitted. Manzoor-ul-Haq, co-accused was declared as proclaimed offender and the appellants faced the trial.
6. The Trial Court framed the charge which was denied by the appellants and they claimed trial.
7. During the trial, the prosecution examined as many as 22 witnesses to prove the guilt of the accused.
8. The medical evidence was furnished by Dr. Javed Iqbal, PW-1, who on 26.12.1999 at 10.30 p.m.
9. Conducted the post-mortem examination on the dead-body of Ahmad Khan and found the following injuries on his body:--
(1) An entry i.e-arm wound in the upper part of left side of neck, 1-1/2 c.m. x 1 c.m., below left ear, with no blackening scorching noted.
(2) An exit wound 1-1/2 c.m. x 1 c.m. On the right side of skull above and behind right ear in the occipital temporal area. On dissection, fracture of occipital temporal bone found and also metallic shell was found on the right occipital area i.e exit wound inside the skull cavity.
10. He also medically examined Ghulam Roqia, PW-12 and found the following injuries on her person:-
(1) A i.e-arm entry wound, 1 c.m. x 1/2 c.m. On the interior aspect of right wrist joint.
(2) An exit i.e-arm wound 1 c.m. x 1/2 c.m. On the dorsal/back of right wrist joint.
(3) There was blackening/scorching on the left thumb all around with no injury at the place of scorching.
11. On the same day, he medically examined Muhammad Yaqoob, PW-16 and found the following injuries on his personnel) An entry wound 1-1/2 c.m. 1/2 c.m. Below left hypochondrium along with blackening and scorching with corresponding mark of injury on slooka, qamiz and sweater, which were stained with fresh blood.
(2) An exit wound, bleeding profusely, on the back left lumber region, above iliac bone border (1 x 1/2 c.m.).
12. The ocular account was furnished by Muhammad Shoaib, PW-17 who was complainant of the case.
13. He supported the version of the F.I.R. Muhammad Yaqoob, PW-16 was injured witness in the same occurrence at the hands of the accused. He supported the prosecution story as an eye-witness of the occurrence. His statement is in line with the statement of the complainant. Ghulam Roqia, PW- 12 was also injured in the same occurrence. She also supported the prosecution story as an eye- witness of the occurrence. Muhammad Bashir, PW-10 joined the investigation and got his statement recorded under. Section 161, Cr.P.C, with the I.O. Stating that on 26.12.1999 at 8.45/9 p.m.
14. He was going towards Adda and when he was passing near house of Ahmad Khan deceased he saw two persons in the light of bulb along with a motor-cycle parked beside and thereafter, he saw six persons going towards north out of then1 two were on motor-cycle. Thereafter, at about mid night he returned and came to know about commission of the instant crime. Muhammad Safdar, FC/CW I was entrusted proclamation of Nazir accused, who was not traceable and made the report in this regard. Muhammad Doraiz, AS1/PW-2 had recorded the formal F.I.R,/ Ex.PD/1.
15. Muhammad Ashraf, FC/PW-3 delivered the sealed parcels at the office of F.S.L, and the Chemical Examiner
7. The petitioner was arrested on 6.3.2002 and is in the judicial lock-up.
8. I have heard the learned counsel for the parties and have also gone through the record. None of the offences is punishable with ten years' or more and does not attract the prohibitory clause of Section 497, Cr.P.C. Investigation qua the petitioner has been completed, There is no history of the petitioner's previous involvement in the criminal activities. In such like cases the bail should be granted to the petitioner as a rule, therefore, I admit the petitioner to bail subject to his furnishing bail bond in The sum of Rs. 50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned Trial Court.