' ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of Criminal Appeal No,1362 of 2002 and Murder Reference No,84-T of 2002, which arise out of the judgment dated 31-7-2002 passed by Ch. Muhammad Hussain Maiken, Judge Anti-Terrorism Court-II, Gujranwala, whereby he convicted the appellants, namely, Shahid, Sodagar, Muhammad Mushtaq and Muhammad Khan, under section 7(a) of Anti-Terrorism Act, 1997, and sentenced them to death. They were also sentenced to a fine of Rs,1,00,000 each or in lieu thereof to undergo S.I. For two years each. They were also convicted under section 7(c) of the Anti-Terrorism Act, 1997 and sentenced to R.I. For 10 years each and also a fine of Rs,50,000 each or in lieu thereof to undergo S.I. For one year each. Whereas the accused Muhammad Anwar and Jahangir had been acquitted.
2. The matter pertains to case F.I.R. No,189 dated 6-11-2001 registered under sections 302, 324, 109, 148, 149, 170 and 171, P.P.C. Read with sections 6/7 of the Anti-Terrorism Act, 1997, at Police Station Eminabad, District Gujranwala.
2a. The F.I.R. In this case was registered on the statement of Muhammad Akbar (P.W.7), a son-in- law of the deceased Jamil Hussain. He is an eye-witness to the occurrence. No one was nominated in the F.I.R. And the occurrence is said to have taken place at 2-45 p.m. While appearing as a witnesses, he narrated the occurrence in the following words:-- "I, Sain Khan P.W., Zamurrad Hussain deceased and Jamil Hussain deceased were lying asleep in the house of P.W. Sain Khan. At about 2-30 a.m. On the night between 5/6-11-2001, six persons entered in the house of Sain Khan P.W. Out of which five were in police uniforms and sixth was in plain clothes. Out of these four are present in the Court. Their names are Saudagar, Shahid, Muhammad Khan and Mushtaq Ahmad. Mushtaq accused was armed with Klashnikov while the remaining were armed with rifles and dagger. The accused stated that a girl has been abducted from Lahore and she is present in this house, they have to search her from this house. The accused also demanded a bag from Jamil deceased who replied in negative. The accused then started firing. Jamil received fire-arm injuries and succumbed to the injuries. Zamurrad Hussain and Sain Khan also received injuries. Zamurrad later on died. The accused then searched the house and took away cash of Rs,5,00,000, three thousand U.S. Dollar, Golden ornament 30 Tolas, Cheque Book, Passport etc. And then ran away. During the occurrence Mushtaq accused present in the Court also received injuries. The occurrence was also witnessed by Muhammad Afsar and Maqbool in addition to us".
' The motive part of the story was given by him in his statement, which is as follows.-- "The motive of this occurrence was that Jamil deceased who was my son-in-law used to send persons abroad after receiving amount from them and Matloob accused who is also my sister's son used to send persons abroad after receiving handsome money, therefore, there was professional rivalary between both of them. Because Jamil used to receive lesser amount as against Matloob Hussain. Due to this grudge Matloob with the connivance of Jahangir accused who is husband of sister of Matloob had committed this occurrence".
' Exh.P.F. Is the F.I.R. Registered on his statement.
3. The following excerpts from his testimony are also relevant and which are reproduced below:-- "I did not mention the names of the accused in my statement before the police. I did not mention the name of Abdullah as an accused as he had fired a burst which hit Jamil deceased.
(Confronted with Exh.P.F. Where it is so recorded). Voluntered it was got entered by Matloob proclaimed offender. It is correct that I stated in my statement before the police that the deceased Jamil and Matloob accused had a professional rivalry over the receipt of amount for sending persons abroad ' Muhammad Afsar P.W. Is an uncle of Maqbool P.W. But not real uncle, Zamurrad and Jamil deceased mentioned above were the real brothers. Sain Khan and Afsar P.W. Are real brothers. My house is at a distance of about 50 yaids from the place of occurrence. My daughter was married to Jamil deceased about 16 years ago ......................................................................
' Khalid resides in the same street, who had abducted a girl from Lahore. Voluntered on the same excuse the accused entered in our house. Said Khalid is from my brotherhood. It is correct that Police came twice from Lahore to recover the said abductee. The police from Lahore raided also at night and day time. My daughter told me that Rs,5,00,000 and three thousand Dollar were taken away by the accused. I also did not give the details of ornaments in my statement before the police. I opened the door. Mushtaq accused entered the house first. Other accused also entered the house within no time ' The deceased received the injuries in the room. Zamurrad received the injuries in the courtyard.
Zamurrad received the injuries before Jamil deceased. Sain Khan received injuries in the courtyard.
I did not accompany the injured to the hospital. I do not know who took them to the Hospital. I went to the Hospital after 6/7 days of the occurrence. Police reached the spot and I did not go to the police station for recording the F.I.R. Police reached the spot after about one hour of the occurrence. I do not know if the police .Reached on the spot on the receipt of information. The procession was taken out and roads were blocked to protect against the police and the whole staff of Police Station Eminabad was suspended ..
' After about 4/5 days of the occurrence, I came to know that the accused had been arrested. I did not go to the Police Station.During the investigation of this case ..
' It is correct that S.S.P. Gujranwala addressed a Press Conference and I was present and accused were also present there and they were in muffled faces".
4. The complainant also joined the test identification parade which had taken place on 24-11-2001 and was conducted by Mr. Irfan Ahmad Sindhu, Special Judicial Magistrate, Gujranwala, (P.W.1). He stated that he identified all the appellants present before the Court and who were the assailants.
5. Sain Khan (P.W.8) the other eye-witness made no mention of the names of the accused in his testimony and only went on to say that:-- "About five months before I, Akbar Ali P.W. And my two sons namely Zamurrad and Jamil deceased were sleeping in our house, about .2-30 a.m. Six persons entered in our house. Five out of them were in police uniforms and one was without uniform. They were armed with different fire-arms weapons. The accused first demanded a girl and then they demanded a bag. On the refusal of my son the accused started firing. Jamil and Zamurrad both the deceased and myself received injuries of firing. I then fell down and regained my senses after three days after the occurrence at Mayo Hospital Lahore. I remained for 10 days in the Hospital".
6. Maqbool Hussain (P.W.14) is another eye-witness. According to him, he saw five persons in police uniforms and sixth in civilian clothes fully armed and who fired at Sain Khan, Zamurrad P.W. Now deceased and Jamil deceased and he saw them going towards the bazar. They also fired at him but he escaped unhurt. At the time of post-mortem examination, he identified the dead body of Jamil as well as Zamurrad. He joined the identification parade and identified the appellants present in the Court.
7. Dr. Sabibzada Fareed Zulfiqar (P.W.5) conducted the postmortem examination on the dead body of Jamil Hussain which was brought by Ali Raza and Anwar Constables on the asking of the Investigating Officer and found the following injuries:-- "(1) A fire-arm lacerated wound measuring 0.5 c.m. x 0.5 c.m. x going deep on the left side of front of chest, on the anterior axillary line, at the level and 3.5 c.m. From the left nipple. The margins were invented and bruised collar present. Wound of entry.
(2) Fire-arm lacerated wound 6 c.m. x 3.5 c.m. On the back of right chest on posterior axillary lying at the junction of upper arm and chest. The margins were everted. Wound of entry. The injury No,2 corresponded to injury No, 1.
(3) A bruise 6 c.m. x 2 c.m. On the front and outer aspect of right upper arm, lower part.
(4) An abrasion 8 c.m. x 2 c.m. On the front of left lower chest outer part.
(5) A bruise 9 c.m. x 3 c.m. On the back of right upper arm near shoulder.
(6) A bruise 6 c.m. x 3 c.m. On the outer aspect of right upper thigh".
' Following was his opinion:-- "After thorough external and internal post-mortem examination I was of the opinion that the death in this case was due to injury to the vital organs which are lungs and heart leading to haemorrhage shock and death, caused by injury No,1 which was sufficient to cause death in an ordinary course of nature and all injuries were anti-mortem in nature and injuries No,1 and 2 were caused by fire-arm weapon, rest by blunt weapon. The probable time that elapse between injury and death was immediate and between death and post-mortem examination was about 12 to 16 hours. After post-mortem examination a well stitched and washed dead body was handed over alongwith postmortem report and signed police papers and clothing were handed over to Ali Raza No,2221/C.
Exh.P.C. Is the correct carbon copy of the post-mortem whereas sketches of injuries Exh.P.C./1 and Exh.P.C./2 were in my hand and bear my signatures".
8. The injured Zamurrad son of the eye-witness Sain Khan later died on 15-2-2001. Dr. Nawazish Ali (P.W.4) conducted post-mortem examination on his dead body and found the following injuries on his person:-- "(1) An healthy healed scar about 3.5 c.m. x .25 c.m. On left cheek about 1 c.m. Below left eye.
(2) Healthy healed scar about 3 c.m. x 0.25 c.m. On the left eye brow was present.
(3) Left cornea was fully hazy and solora was congested and adematous. Right eye was normal".
' He, however, gave the following view with respect to the death: "In my opinion the cause of death was not due to violence, but it was natural".
' Exh.P.B. Is his post-mortem examination report.
9. Muhammad Mushtaq appellant when he was arrested on 21-11-2001 was found having injuries on his person. He was sent for medical examination which was conducted by Dr. Sahibzada Fareed Zulfiqar M.O. T.H.Q. Hospital Kamoke (P.W.5) on 21-11-2001 and he found the following injuries on his person:-- "(1) A healed wound 2 c.m. Long with scap present on the left side of top of head middle part.
(2) A healed wound 3.5 c.m. x 3.00 c.m. On the back of left upper chest near mid-line.
(3) A bruised swelling 6 x 4 c.m. Rcdish blue in colour on the planter aspect of left foot.
(4) A bruised swelling 6 x 4 c.m. Redish blue in colour on the planter aspect of right foot".
' With respect to the duration of the injuries, he stated: "The probable duration of injuries was (for injury Nos.1 and 2 within about 2 to 3 days and were caused by blunt weapon".
' Exh.P.W. Is the MLR in this case.
10. On the same day, he also medically examined Muhammad Khan appellant and found the following injuries on his person: "(1) A healed wound 2.2. c.m. Long on the left side of the fore-head.
(2) Abrasion 2 x 5 c.m. On the back of upper chest near and on mid-line.
(3) Contusion 7 x 4 c.m. On the back of lower neck.
(4) A healed abrasion with scap 1 x 5 c.m. On back of right elbow.
(5) A healed abrasion .3 x .5 c.m. With dried scap on front of right knee joint".
' Regarding the duration of the injuries, he stated: "The injury Nos.1, 4 and 5 were within about 2 to 3 weeks and Injuries Nos.2 and 3 were within about 1 to 3 days. All the injuries were caused by blunt weapon".
' Exh.P.X. Is the MLR with respect to Muhammad Khan.
11. Mr. Irfan Ahmad Sindhu, Special Judicial Magistrate, Gujranwala (P.W.1) conducted the test identification parade and according to him, all the appellants were identified by Maqbool Hussain P.W. (P.W.14) and Muhammad Akbar (P.W.7). But he went on to say that Mushtaq and Sodagar appellants were identified by Zamurrad Hussain the injured P.W., when they were wearing a bandage on his left eye. He also went on to say that he fulfilled the requirements of law in this connection. When questioned he stated that Mushtaq accused did , raise an objection that accused were shown to the public in a Press Conference of the Police before the test identification parade and he noted this objection.
12. Muhammad Afzal Head Constable (P.W.2) was posted at Police Station Eminabad as Moharrir and he received two parcels, one of which contained 9 crime empties of Kalashnikov and 14 crime empties of pistol .30 bore which he kept in the Malkhana intact. On the next day he gave these to Riasat Ali F.C. For onward transmission to the office of the Forensic Science Laboratory Lahore.
Because of an objection these were re-delivered on 24-12-2001 there. Later on 9-2-2002, he took four parcels pertaining to this case, one with a Kalashinkov and three with a pistol .30 bore to the office of the Forensic Science Laboratory Lahore and delivered these intact. Rasat Ali F.C. (P.W.3) affirmed these facts.
13. Haji Muzaffar Hussain H.C. (P.W.6) had taken the bloodstained earth to the office of Chemical Examiner. Masood Ahmad Bhatti Draftsman (P.W.9) had prepared the site-plans of the occurrence Exh.P.G. And Exh.P.G./1. Whereas Muhammad Irshad H.C. (P.W.10) received the case property which he kept in the Malkhana and which contained blood-stained earth. Which he later gave to Haji Muzaffar Hussain for delivery to the office of Chemical Examiner.
14. Zulfiqar Ali (P.W.12) was S.H.O. Police Station Eminabad. On hearing about the occurrence, he went to the spot on 6-11-2001 and recorded the statement of Muhammad Akbar (P.W.7) Exh.P.F. And sent it for formal registration of the F.I.R. Which was registered by Muhammad Akram A.S.-I. Whose handwriting he identified. He then inspected the spot and prepared an informal site-plan (P.1).He secured blood-stained earth and some other articles left by the accused at the spot (P 1 to P 6). He prepared the inquest report of Jamil Hussain and received the last-worn clothes of the deceased vide memo. Exh.P.H. He also recorded the supplementary statement of the complainant. Later he sent the dead body to the mortuary.
15. Muhammad Ashraf S.I. (P.W.13) was posted at Police Station Eminabad. He went to record the statement of P.W. Sain Khan in the hospital. The Doctor did not allow him to take down the statement of Sain Khan P.W. Because he was not in a fit state. While Zamurrad P.W. Was not traceable.
16. Matloob Hussain accused was declared a proclaimed offender. Tahir Mahmood F.C. (P.W.15) was handed over a proclamation against him for service and he pasted one copy of the proclamation on the house of Matloob Hussain and one copy in the Court premises.
17. Muhammad Idress A.S.-I. (P.W.16) got recovered .30 bore pistol alongwith live cartridges P.10/1-3 from Sodagar appellant vide memo. Exh.P.L. According to him, the S.H.O. Muhammad Islam who later took over at this police station got recovered a Klashnikov P.11 and five cartridges P.12/1-25 from Mushtaq appellant vide memo. Exh.P.M. Idrees P.W. Attested the memos. According to him, a .30 bore pistol was recovered with live bullets from Muhammad Khan by the S.H.O. And secured vide memo. Exh.P.N. Which he had also attested. Shahid Pervaiz appellant also got recovered a pistol of .30 bore and four live cartridges which were taken into possession vide memo Exh.P.O. It is stated that the Investigating Officer also recovered a bag from Muhammad Khan which consisted of passports, identity cards and pass books, of banks, which were taken into possession vide memo. Exh.PP. The Investigating Officer also recovered another bag from Mushtaq which consisted of passports, receipts of visas and N.I.C., which were taken into possession vide memo. Exh.P.Q.
Mushtaq appellant further got recovered a uniform of a police A.S.-I. Which was blood-stained and this was recovered vide memo. Exh.P.R. Giving further details about the accused, it was stated that Mushtaq belonged to Gujranwala whereas Sodagar and Shahid appellants belonged to Sialkot.
Muhammad Khan belong to District Sheikhupura.
18. Muhammad Islam Inspector S.H.O. (P.W.17) arrested the appellants Mushtaq and Muhammad Khan and he corroborated the testimony of Muhammad Idrees A.S.-I. With respect to the recoveries including an A.S.-I. Uniform which was recovered from Mushtaq.
19. Muhammad Nawaz Sarwar S.I. (P.W.18) had arrested Shahid Pervaiz appellant and got recovered .30 bore pistol from him vide memo. Exh.P.O.
20. Muzammal Hussain S.I. (P.W.19) had recorded the statements of Muhammad Yasin Khan and Wazir Muhammad P.Ws. Under section 161, Cr.P.C. And had interrogated the appellants. He later advised the accused to keep their faces muffled. They were later subjected to test identification parade in jail. He had arrested two acquitted accused but we need not go into that aspect of the case being irrelevant now. Following except from his testimony is also relevant which is reproduced below:-- "It is correct that the Police of Eminabad and Police of Nawan Kot raided village Cheeinanwali in connection with recovery of an abducted girl. Gohar Abbas S.I. Also investigated this case partly. He also joined Muhammad Nawaz constable Police Station Nawan Kot, Lahore in the investigation of this case. It is correct that on 21-11-2001 a Press Conference was addressed by S.S.P. Gujranwala in my presence. The accused were also present there".
21. Statement of Zamurrad Hussain deceased (Exh.P.T.) was brought on the file through the statement of Muzammal Hussain S.I. (P.W.19) after his death.
22. Sain Khan (P.W.8) was also medically examined by Dr. Zafar Mumtaz, who was not available. His handwriting was identified by Syed Muhammad Shah (P.W.20).
23. In their statements under section 342, Cr.P.C. Case of the appellants was one of denial. They denied the recoveries. When questioned as to how he received the injuries on his person, Mushtaq appellant just denied the fact and gave no explanation. Muhammad Khan appellant was not asked a question about his injuries in his statement under section 342, Cr.P.C. They termed the identification test as fake
24. Of course, this is a night occurrence and no one was nominated in the F.I.R. The motive part of the story as given by the complainant was not established. Matloob Hussain accused who was linked with the motive part of the story, was not arrested and is now a proclaimed offender.
25; Whether the occurrence was a robbery or it had been an occurrence which took place at the instance of the said Matloob who was working with Jamil deceased in Spain, is still a question to be determined.
26. The established fact is that six men, five of whom were in police uniform, entered the house of the complainant and took away cash etc, the details of which are given by the complainant. Those articles were not recovered.
27. We find that recoveries effected from Mushtaq included an A.S.-I. Dress which was blood- stained. Anyway no question about it was asked from him in his statement under section 342, Cr.P.C. But there were injuries on his person when he was arrested and medically examined and when questioned as to how he received the injuries on his person, his only reply was that it was not true. Muhammad Khan appellant had also suffered injuries and was medically examined but no question was asked from him in his statement under section 342, Cr.P.C.
28. The test identification parade has been assailed on the ground that at a Press Conference, the accused were shown to the public although one of the witnesses stated that the complainant was not there and it was also said that the faces of the accused were muffled. This does ostensibly create some doubt with regard to the factum of identification. But we find that the eye-witnesses who had named the assailants remained stead fast in identifying them and had stated that they had correctly identified them during the parade as well. There is nothing to suggest any enmity inter se the appellants and these P.Ws. So a question arises as to why these P.Ws. Will falsely implicate the appellants.
29. As the police of Eminabad was being blamed for the occurrence, they endeavoured to catch the four appellants and effect recoveries from them. The report of the Forensic Science Laboratory is positive with respect to the rifle 7.6 2mm and .30 bore pistol Exh.P.2 and it was stated that the pistol was in a working condition.
30. These recoveries do not provide much strength to the case of the prosecution because the crime empties recovered from the spot were not despatched on the day of recovery and were sent with the weapon recovered from the spot on the same day.
31. The believeable part of the story is the fact that the appellants were identified by the two eye- witnesses. Whereas Sain Khan (P.W.8) did not name them at all and equally we find his statement destitute of any suggestion made about the innocence of the present appellants.
32. No enmity with the P.Ws. Is established and as the statements of ocular witnesses are believeable, we feel that the appellants had been correctly convicted.
33. After appraisement of the evidence and hearing all sides, we feel that the case against: the appellant Mushtaq is fully established and we, therefore, uphold the order of his conviction and sentence. But regarding the other three, we wish to take all care and caution lest any injustice takes place because of any human error on the part of the P.Ws. And we, therefore, while upholding the order of their conviction, reduce their sentence to life imprisonment. Benefit under section 382- B, Cr.P.C. Is also given to the appellants,. Namely, Shahid, Sodagar and Muhammad Khan.
34. With these observations, this appeal stands disposed of.
35. As the appellants Shahid, Sodagar and Muhammad Khan have been sentenced to life imprisonment, their death sentence is not confirmed and the Murder Reference to their extent is answered in the negative. Whereas the death sentence of the appellant Mushtaq is confirmed and the M.R. To his extent is answered accordingly.