' IJAZ AHMAD CHAUDHRY, J.--Meera appellant has filed this appeal against the judgment, dated 1- 7-1998 passed by the learned Judge, Special Court, constituted under the Anti-Terrorism Act, 1997, D.G. Khan, Division D.G. Khan, by which the appellant has been found guilty under section 302, P.P.C.
For the murder of Muhammad Nawaz, Constable and sentenced to death. He was also directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased and in case of default in the paynicnt of the same to undergo six months' imprisonment. However, Karam Ali, Gaji, Faizu and Dadla co-accused were acquitted of the charge.
2. Briefly the facts relevant for the disposal of this appeal as disclosed by Ghulam Murtaza, Inspector P.W.6 in his complaint Exh.P.D. On the basis of which F.I.R. No,69 (Exh.P.D./1) was registered on 22-8-1996 by Ahmad Bakhsh, Moharrar H.C. P.W.2, are that on 22-8-1996 at about 8-30 a.m. He while armed with revolver alongwith other police officials, namely, Liaqat Ali, Muhammad Nawaz, Muhammad Akram, Constables (all armed with rifles SMG), Muhammad Akram, Constable No,644 (armed with rifle G-III), Atta Hussain, Constable armed with stick and Muhammad Ismail constituted a raiding party for the arrest of the appellant and his acquitted co-accused, namely, Gaji, who were wanted in case F.I.R. No,58 of 1996 and F.I.R. No,68 of 1996 registered in the year 1996 at Police Station Bangla Achha and reached at the house of Meera appellant. They saw Meera appellant, Gaji, Karam Ali, Faizu and Dadla (acquitted co-accused) sitting on the cots while armed with rifles. On seeing the police party they ran towards the crop of cotton, took shelter of dry watercourse and in ft:rtherance of their common object started firing at the police party. The first shot fired by Meera appellant with his rifle hit Muhammad Nawaz, Constable No,153 in the chest and bullet passed through ano through who fell down on the ground. In reply the police party also made firing but all the accused including the appellant succeeded in running away from the place of occurrence. Initially case was registered under sections 324/353/148/ 149, P.P.C. But when Muhammad Nawaz, Constable died section 302, P.P.C. Was added.
3. Blood-stained earth was recovered from the spot which was taken into possession vide memo.
Exh.P.F. Three empties Exh.P.l/1-3 were also found at the place wherefrom the firing was made by the accused persons which were taken into possession by P.W.6 Ghulam Murtaza, Inspector vide memo. Exh.P.G. And attested by Liaqat Ali, Constable P.W.10 and Muhammad Akram P.W.B. Meera appellant was arrested on 30-9-1996 and he had led to the recovery of rifle P.5 alongwith six live cartridges P.6/1-6 which was taken into possession by Muhammad Shafi, Inspector P.W.11 on 30-9- 1996 vide memo. Exh.P.O. And these recoveries were witnessed by Abdul Razzaq Shah, A.S.-I. P.W.7.
4. After the completion of the investigation report under section 173, Cr.P.C. Was submitted, copies were supplied to the accused and charge was framed which was denied by the accused and they claimed to be tried.
5. The prosecution in order to prove the guilt of the appellant and his co-accused reduced 12 witnesses. The medical evioence consists of the statements of Dr. Zahoorul Hassan P.W.1 who initially medically examined Muhammad Nawaz, Constable in injured condition and P.W.9 Dr. Aftab Ahmad Alvi who had conducted the post-mortem examination of the deceased. Ghulam Murtaza, Inspector P.W.6 and Muhammad Nawaz, Constable P.W.8 were the members of the raiding party and gave the ocular account. The recoveries as stated in the preceding para were witnessed by P.Ws.7, 8 and 10 while Muhammad Shafi, Inspector P.W. 11 had also conducted the investigation. The remaining witnesses are of formal nature. After the close of the prosecution evidence the statements of the appellant and his co-accused were recorded in which they denied the allegations and also the recovery. To a question why this case against him, the appellant made the following reply:-- "Some unknown persons were involved in an encounter with the police, roped us in this case and only to strengthen the case, the police fabricated F.I.R. No,68 of 1996 against us. The police involved us suspiciously when the original culprits were not found. We were roped in this case."
' When further questioned why the P.Ws. Have deposed against him,. The appellant stated that "all the P.Ws. Are police officials and with the connivance of the Investigating Officer, they gave evidence against us". He also produced Imam Bakhsh as D.W.1 in his defence and also tendered in evidence school leaving certificates of Manzoor Ahmad alias Gaji and Faiz Muhammad accused.
The learned Special Judge has passed the impugned judgment and awarded death sentence to the appellant which is subject to the confirmation of this Court under section 374, Cr.P.C. And we will see this aspect too.
6. Learned counsel for the appellant contends that P.W.6 Ghulam Murtaza, Inspector in his cross- examination stated that the first fire was made by Dadla co-accused and although in the same breath he stated that Meera appellant/accused had firstly fired but this contradiction alone in the statement of P.W.6, according to the learned counsel, is sufficient for the acquittal of the appellant.
It is further contended that the appellant even otherwise has succeeded in making out a case of lessor punishment. It, is further contended that the police party as per F.I.R. Also fired with their weapons but no such empty was shown to have been recovered from the spot. It is also contended that on the basis of the same evidence the other accused have been acquitted and the case of the appellant is also similar and he is entitled to the same treatment as the prosecution story has become doubtful and on such piece of evidence death sentence cannot be maintained. It is further contended that the recovery was planted upon the appellant and the pi prosecution witnesses had not seen the occurrence. He relied upon Allah Dad and another v. The State 1995 SCM R 142 wherein death sentence was converted/altered to imprisonment for life as the co- accused were acquitted from the charge. It is further contended that in spite of firing by the police nobody from the accused side had received the injuries which leads to an inference that the occurrence had in fact taken place at a different place and the appellant and co-accused were made scapegoats.
7. On the other hand learned State Counsel opposes this appeal on the ground that the judgment is sustainable as both the eye-witnesses have supported the prosecution case and there are no coniradictions on material points in their statements. It is further contended that three empties recovered from the spot had matched with the weapon recovered from the appellant according to the report of the Forensic Science Laboratory and the prosecution has been able to prove its case beyond any shadow of doubt.
8. We have heard the learned counsel for the parties and also perused the record as well as the evidence with due care and caution. In order to prove the ocular account Ghulam Murtaza appeared as P.W.6. He had prepared the complaint (Exh.P.D.) immediately after the occurrence and he supported the same at the trial. The only contradiction pointed out in the cross- examination on him is that the first fire was made by Dadla accused but in the same breath he made him corrected that the first fire was made by Meera appellant. It is the case of the prosecution that Meera appellant was armed with rifle while the other accused were also armed with rifles. The first shot was fired by Meera appellant hitting Muhammad Nawaz, Constable deceased in the chest when the police party had gone to arrest the appellant and his co-accused who were wanted in case F.I.Rs, Nos.58 of 1996 and 68 of 1996. P.W.6 was subjected lengthy cross- examination but nothing favorable could be gained from him by the defence, except the one noted down above. We are not inclined to give any importance to the same as it cannot be termed more than a lapse committed by P.W.6 during lengthy cross-examination on him. According to the note given by the learned trial Judge it is very much clear that this sentence was uttered by P.W.6 when was questioned by Dadla accused that 'who made the first fire" and he replied that " you made the first fire". But in the same breath P.W.6 corrected himself by saying that Meera appellant made the first fire. Thereafter, no other question was made to further clarify the same which means that the accused were very much aware of the reality of abovesaid lapse, which even cannot be termed as a concessional statement. It is further noticed that Meera appellant had cross-examined P.W.6 in that last, but he also did not touch this aspect. Therefore, it is of no avail to the defence.
9. P.W.6 Ghulam Murtaza, Inspector has been supported by Muhammad Akram, Constable P.W.8 who was the member of the raiding party and his name is duly mentioned in the F.I.R. Recorded immediately after the occurrence. He was also subjected to lengthy cross-examination but the defence also failed to shake his evidence during the cross-examination. Both the eye-witnesses were members of the raiding party and have been able to establish their presence at the spot at the time of commission of offence by the appellant. There are no contradictions or discrepancies in their statements on material points with each other or with any other witnesses. Both the witnesses had no motive to falsely implicate the appellant in the present case and no question of substitution arises in the present case as there was no occasion for the raiding party to falsely implicate the appellant and let off the real culprits because of promptly lodged F.I.R. After the perusal of the statements of both the witnesses we have noticed that both of them had seen the occurrence and they remained consistent on each and every details of the same. Both the witnesses are consistent that the shot fired by the appellant hit Muhammad Nawaz deceased in front of his chest resulting in his death which is supported by the medical evidence.
10. The appellant was arrested on 30-9-1996. On the same day he led to the recovery of rifle P.5 which was taken into possession vide memo. Exh.P.O. By Muhammad Shafi, Inspector P.W.11 and P.W.7 Abdul Razzaq Shah, A.S.-I. Had witnessed the same and both of them were attributed no or grudge to falsely plant the recovery of weapon upon the appellant. The empties recovered from the spot were already sent to the Office of Forensic Science Laboratory on 5-9-1996 through Mujahid Hussain, F.C. P.W.4, while rifle recovered from the appellant on 30-9-1996 was sent to the Office of Forensic Science Laboratory on 6-11-1996 through Noorul Hassan P.W.3. The report of the Forensic Science Laboratory Exh.P.S. Shows that the empties recovered from the spot were fired from the rifle recovered from the appellant. Thus, the ocular account to the extent of involvement of the appellant in the commission of the crime is also corroborated by the recovery of empties from the spot and the rifle on the pointation of the appellant.
11. For the foregoing discussion we are of the view that the prosecution has been able to bring home the guilt to the appellant Meera beyond any shadow of doubt. The appellant cannot be given any benefit of acquittal of the co-accused as they were not attributed any active role or injury to the deceased or any of the P.Ws. To their extent the ocular account was also not corroborated by independent piece of evidence. While appellant has been attributed single fatal shot in the chest of the deceased and ocular account' to his extent is corroborated by unimpeachable independent evidence. Thus conviction of the appellant under section 302(b), P.P.C. Is maintained.
12. Now we come to the quantum of sentence, we have noticed that the police party had no or grudge to falsely implicate the appellant and they had gone to arrest the appellant alongwith others being involved in different criminal cases in the discharge of their official duties but the appellant had acted in a brutal manner by firing straight in the front of chest of Constable Muhammad Nawaz deceased. We do not find any mitigating circumstance in this case calling for lesser sentence. The appellant being involved in different cases was duty bound to surrender himself before the police and could prove his innocence during investigation or in the Court of law, but by his act of firing even on the police party he has been proved a desperate and hardened criminal and he deserves no leniency. Therefore, we are inclined to confirm the death sentence awarded by the learned trial Court.
13. In view of the above, the impugned judgment of conviction and sentence is maintained, this appeal is dismissed and the death sentence awarded to Meera appellant is confirmed.