' RAJA MUHAMMAD SABIR, J.---Through this appeal Mian Abbas alias Mian Arshad alias Khurram has challenged his conviction awarded by the learned Special Judge Anti-Terrorism Court, Sargodha vide judgment dated 27-11-2002 whereby he was convicted and sentenced to death under Section 302(b)/149, P . P. C . And compensation of Rs.1,00,000 to be paid to the legal heirs of the deceased Muhammad Ilyas under section 544-A, Cr.P.C. Recoverable as arrears of land revenue, in default whereof to undergo six months' S.-I. He was also convicted under section 324/ 149, P.P.C.
And sentenced to seven years' R.I. And a fine of Rs.10,000, in default whereof to further undergo two months R.I. He was further convicted ,under section 148, P.P.C. And sentenced to three years R.I. And fine of Rs.10,000 and in default whereof to further suffer two months R.I. He was also convicted under section 353/149, P.P.C. And sentenced to one month R.I. He was convicted under section 7-A of the Anti-Terrorism Act, 1997 and sentenced to death with fine of Rs.25,0000 and in default whereof to further undergo one year R.I. The learned trial Court also sent Murder Reference No.98-T of 2002 which is also being disposed of through this judgment.
2. Brief facts of the case as disclosed in the F.I.R. Exh.P.K.1 recorded on the statement of Ismat Ullah, S.-I./S.H.O., Police Station Jauharabad Exh.P.K. Are that on 31-8-2002 at 11-45 a.m. He received a spy information that accused Furdous Khan alias Tauqir Khan alias Suleman alias Muna armed with Klashnikov, Jahangeer Chatta, Abbas alias Mian Arshad alias Khurram, Mushtaq alias Papu and Sarfraz Pathan all armed with .30 bore pistols who were indulged in commission of car lifting crime had arrived at the house of Muhammad Riaz, Patwari at Hayat Colony Jauharabad by Car No.LRC- 2616. The complainant after constituting a raiding party raided the place of occurrence where accused Furdous Khan etc., were boarding the aforementioned car at that time who on seeing the police party started firing whereupon the policy party also resorted to cross-firing exercising right of self-defence and accused Mian Abbas, Mushtaq and Jahangeer made successive fire shots which hit Muhammad Ilyas Constable No.582 Elite Force Khushab on his finger of right hand, the big finger of right hand and on right shoulder who collapsed on sustaining injuries. Rana Abid, Inspector also reached there alongwith Elite Force of Sargodha chasing those accused persons.
Muhammad Ilyas, Constable succumbed to the injuries on the spot. Accused Furdous Khan etc., fled away under the blanket firing due to Abadi. Jahangeer accused was found lying injured having fire-shot injuries on his abdomen and .30 bore pistol was lying beside him. Two bullets were recovered on unloading the magazine of that pistol. On search of the Diggi of the aforesaid car three Klashnikovs alongwith six magazines, 110 live bullets, 3 pistols of .30 bore with three magazines and 55 live bullets, three daggers, mobile set, 30 keys of various kinds of cars, cash Rs.5000 containing five currency notes each of the denomination of Rs.1000 each, 8 number plates of cars with different numbers and brief case containing clothes were found there. Jahangeer accused was shifted to Civil Hospital, Jauharabad for medical treatment. On 10-9-2002 accused Jahangeer expired in the Allied Hospital, Faisalabad. Mian Abbas appellant was arrested by the police of Police Station Cantt., Sargodha and was in District Jail, Sargodha. The Investigating Officer associated him with the investigation on 27-9-2002 while Sarfraz and Mushtaq accused were declared proclaimed offenders.
3. After submission of the challan the learned trial Court charge-sheeted the accused Mian Abbas on 14-11-2002 under sections 148/302/324/352/149, P.P.C. And section 7 of the Anti-Terrorism Act, 1997, to which he pleaded not guilty and claimed trial. The prosecution examined as many as 16 prosecution w:t,:ztsses to prove its case. Muhammad Ansar, Constable No.261 who identified the dead body of Muhammad Ilyas deceased appeared as P.W.1, Muhammad Ramzan, Constable No.594, who escorted the dead body of the deceased to Civil Hospital, Jauharabad and after post- mortem examination he produced before the Investigating Officer last-worn clothes of the deceased shirt P.1, vest P.2, pent P.3, cap P.4, long boot P.5/1-2, socks P.6/1-2 and belt P.7 appeared as P.W.2. Shabbir Ahmad, Constable No.20 who escorted the dead body of Jahangeer to Civil Hospital, Jauharabad and after postmortem examination he produced before the Investigating Officer last-worn clothes of the deceased Pajama P.8, shirt P.9, which were taken into possession by him vide memo. Exh.P.A. Appeared as P.W.3. Muhammad Yousaf, Constable No.180 who transmitted two parcels of .30 bore pistol and empties to the office of Forensic Science Laboratory, Lahore and the third parcel to the office of Chemical Examiner, Lahore appeared as P.W.4. Alam Sher, Head Constable No.295 who kept the aforesaid parcels in the Malkhana intact appeared as P.W.5.
' Dr. Masood Alam Raja, Medical Officer, D.H.Q. Hospital, Jauharabad who conducted the post- mortem examination on the dead body of Muhammad Ilyas deceased appeared as P.W.6. He found the following injuries on his person:--
(1) A fire-arm entry wound 1/2 c.m. x 1/2 c.m. On lateral aspect of right shoulder, below shoulder joint. Blackening was present, margins were inverted.
(2) A fire-arm exit wound 1/2 c.m. x 1/2 c.m. On lateral aspect of left upper chest behind left axilla.
Injury No.1 was entry wound of Injury No.2.
(3) A lacerated wound 5 c.m. x 4 c.m. At palmer aspect of middle phalanx of right index finger. Bone was broken, muscles were exposed.
' On dissection right and left chest cavity were full of blood, right and left second ribs were fractured, third thorasic vertebra was fractured. Right lung was perforated and torn in pieces. Left lung was also perforated and torn in pieces. Big vessels of chest cavity were torn. Other parts of body were normal and healthy. In the opinion of the Medical Board all, the injuries were ante- mortem and were caused by fire-arm weapons. Injury No.1 was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate, between death and post-mortem examination was 2 to 6 hours. After post-mortem examination the doctor handed over the dead body, postmortem report Exh.P.B. And diagram of injuries Exh.P.B.1 to Muhammad Ramzan, Constable No.594. Inquest report Exh.P.C. Was examined by the Medical Board and carbon copy of injury statement Exh.P.D. Was signed by the members of the Medical Board.
' The same doctor on the same day medical examined accused Jahangir who found the following injuries on his person:--
(1) A fire-arm entrance wound 1/2 c.m. x 1/2 c.m. At right lower chest, 9 c.m. From umbilicus, 18 c.m.
From right nipple, margins were inverted.
(2) A fire-arm exit wound 2 c.m. x 1 c.m. On back of left lumber region. 8 c.m. From left hip joint, margins were everted. Injuries Nos.1 and 2 were kept under observation.
' Probable duration of injuries was 1/2 to 2 hours. Kind of weapon was firearm. Exh.P.E. Is the correct carbon copy of Medico-legal report whereas Exh.P.E.1 is the sketch of injuries. Before medical examination the witness had seen the carbon copy of injury statement Exh.P.F. Whereupon he issued the Medico-legal report. On 8-9-2002 the Investigating Officer had produced application Exh.P.G. For recording the statement of injured accused Jahangir whereupon the witness opined that the injured was fit for making the statement but the injured accused could not travel as laparotomy had been done. On 10-9-2002, the aforementioned Medical Board had received the dead body of accused Jahangeer and post-mortem examination was conducted by the Medical Board on 11-9-2002. The following injuries were found on the dead body of the deceased:--
(1) A fire-arm entrance wound 1/2 c.m. x 1/2 c.m. At right lower chest, 9 c.m. From umbilicus; 18 c.m.
From right, nipple, margins were inverted.
(2) A fire-arm exit wound 2 c.m. x 1 c.m. On back of left lumber region. 8 c.m. From left hip joint, margins were everted.
(3) One stitched wound 1/2 c.m x 1/2 c.m. Present in right iliac fosa.
(4) One stitched wound 1/2 c.m. x 1/2 c.m. Present in left iliac fosa.
(5) A mid-line stitched wound measuring 18 c.m. Extending from xiphistemum to pubic sumphysis:
(6) A rounded wound measuring 2 c.m. x 2 c.m. In left hypochondrium, 8 c.m. From umbilicus.
' In the opinion of the Medical Board Injury No.1 was caused by fire-arm. It was ante-mortem. It had injured vital organs, stomach, small intestine, and large intestines, which were repaired surgically.
This injury had led to hemorrhage, pus formation and shock leading to renal failure. It was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was 10 days and between death and post-mortem examination to 6 to 9 hours. Exh.P.H. Is the correct carbon copy of post-mortem examination report whereas Exh.P.H.1 and Exh.P.H.2 are copies of sketch of injuries.
' Ali Nawaz, A.S.-I. Who chalked out the F.I.R. Exh.P.K.l on the basis of complaint Exh.P.K. Written and sent by Ismat Ullah, S.-I./S.H .0. Appeared as P.W.7. Muhammad Mumtaz, Constable No.300 appeared as P.W.8 and stated that he received the warrants of arrest of accused Sarfraz Exh.P.L., of Mushtaq Exh.P.M. On which he made reports Exh.P.L. 1 and Exh.P .M .1. On 30-9-2002 he received the proclamations against accused Sarfraz Exh.P.N. And against Mushtaq Exh.P.O. Which were executed by him in accordance with law and made Respective reports Exh.P.N.1 and Exh.P.0.1 Mirza Muhammad Saeed, Draftsman who prepared site-plans Exh.P.Q. And Exh.P.Q.1 appeared as P.W.9. Riaz Hussain Shah, S.-I. Who was deputed by the S.H.O. For arrest of accused Mian Abbas appeared as P.W.10. On 8-10-2002 he moved an application for summoning the accused Mian Abbas whose carbon copy is Exh.P.R. He arrested him in this case and got his judicial remand and informed the S.H.O. About his arrest.
Muhammad Ashraf, Inspector/ S.H.O., Police Station City Mianwali appeared as P.W.11 and narrated the story of the death of Firdous Khan alias Haider Khan alias Toquir Haider alias Muna accused of this case. He recovered from the car .30 bore pistol, Klashnikov P.10, two magazines P.11/1-2, 7 bullets P.12/1-7, 27 empties of Klashnikov P.13/1-27, bandolier, one .30 bore pistol, 7 empties of .30 bore P.14/1-7. On search of the dead body an identity card, a purse containing Rs.1210 were also recovered. He seized the above articles through recovery memo. Exh.P.S. ' Muhammad Mumtaz, A.S.I.- who investigated case Crime No.241 of 2002, Police Station Cann., Sargodha registered against Mian Abbas appeared as P.W.12. Mian Abbas got recovered pistol P.15 with magazine P.16 containing 4 live bullets P.17/1-4 taken into possession vide memo. Exh.P.T.
' Muhammad Mumtaz, Constable No.402/C-1, who attested the recovery memo. Exh.P.T. Appeared as P.W.13. Shahid Nisar Akbar, A.S.-I., Elite Force, Khushab who is an eye-witness of the occurrence appeared as P.W114 and narrated the facts of the F.I.R. Azmat Ullah, S.-I. Who was also a member of the raiding party appeared as P.W.15 and reiterated the contents of the F.I.R. Besides identifying the documents prepared by Ismat Ullah, S.-I. (given up). Ghulam Hussain, Inspector who had partly investigated the case appeared as P.W.16.
' Mian Khalid Mehmood, D.D.A. Gave up P. Ws. Dr. Abid Hussain Makhdoom, Dr. Mehboob Alam Faizi, Dr. Ayub Ansari, Hassan Raza, A.S.-I. Sher Afzal, A.S.-I., Muhammad Fayyaz, Constable No.1190, Muhammad Asif, Constable No.372, Elite Force, Muhammad Ramzan, A.S.-I., Dost Muhammad, A.S.- I., Nisar Ahmad 233-C Elite Force, Muhammad Iqbal 396-C as being unnecessary and Ismat Ullah, S.-I./S.H.O. Being untraceable, tendered in evidence the report of Chemical Examiner Exh.P.E., report of Serologist Exh.P.F.F. And that of Forensic Science Laboratory Exh.P.G.G. And closed the case for prosecution. Muhammad Iqbal, Constable No.396 appeared as C.W.1 and deposed about the non- bailable warrants of arrest of Ismat Ullah, S.-I. And made a report thereon Exh.0 W .1/A .
4. Mian Abbas accused was examined under section 342, Cr.P.C. Who refuted the prosecution evidence, claimed himself to be innocent and stated that he had been implicated in the case falsely. Rana Abid, Inspector/S.H.O. Had detained him since 25-8-2002 where he remained alongwith other suspects Malik Aamer, Malik Mumtaz, Malik Yasir Nawaz and Alhaj Mumtaz who were also put under arrest in cae F.I.R. No.172, under sections 365/144/302, P.P.C. Police Station Saddar Sargodha. He opted to depose on oath under section 340(2), Cr.P.C. And to adduce defence evidence. He appeared as his own witness under section 340(2), Cr.P.C. And deposed on oath that he was arrested on 25-8-2002 by Rana Abid, Inspector/S.H.O., Police Station Cantt., Sargodha when he had come to Zafar Pathan in connection with illness of his paralyzed mother and he was produced before Muhammad Aslam Ghori, S.P. He was handed over to Rana Abid, Inspector by Muhammad Aslam Ghori and Zawar Hussain Baloch, S.-I. Who severely tortured him at Police Station Cantt., till 31-8-2002, whereafter he was shifted to Police Station Jhal Chakian on 31- 8-2002 and remained in the lock-up there till 7-9-2002 when he was brought back and kept at Police Station Cantt., Sargodha on 8-9-2002. Rana Abid came there for a short time and brought him out of lock-up, tortured as if he had personal enmity. On 9-9-2002 Mumtaz, A.S.-I. Brought him out of the lock-up alongwith Zulfiqar Awan, challaned them and transmitted them to jail. He was told that he was challaned in case F.I.R. No.241 of 2002 under section 459, P.P.C. And test identification parade was held on 17-9-2002. Eye-witnesses did not identify him whereafter he was produced in the Court of learned Illaqa Magistrate on 27-9-2002 who granted his physical remand for two days despite his protest and he was not produced before the learned Magistrate at that time. He was brought to Police Station Cantt., Sargodha where he was kept for three days and Mumtaz, A.S.-I. Did not torture him and nothing was recovered from him and he was sent to jail again. He produced D.W.1 Aamer Saleem, D.W.2 Muhammad Mumtaz and D.W.3 Yasir Nawaz who deposed that accused was confined in the police lock-up of Police Station Cantt., Sargodha with them and was severely tortured. On 31-8-2002 he was removed to Police Station Jhal Chakian and was brought on 7-9-2002. D.W.4 Muhammad Maqsood deposed that he was also accused of case F.I.R. No.172 under section 365, P.P.C. He visited Police Station Cantt., Sargodha on 27th, 28th and 29th August, 2002, in connection with the investigation where he saw accused Mian Abbas severely tortured by Rana Abid, Inspector/S.H.O. On 29-8-2002.
5. The learned trial Court after hearing the learned D.D.A. And the defence counsel through impugned judgment convicted and sentenced the appellant in the terms stated above.
6. Mian Muhammad Sikander Hayat, learned counsel for appellant contends that Jahangir one of the companions of the accused was killed by police encounter and Muhammad Ilyas a Constable lost his life by firing of police itself but the appellant has been falsely implicated in the case.
Prosecution failed to prove its case against the accused, therefore, his conviction is not sustainable. He has further argued that it is not ascertainable who caused fatal blow to Muhammad Ilyas deceased; as such, capital punishment is not warranted. Prosecution evidence consists of interested witnesses and without independent corroboration cannot be relied upon.
7. Learned State Counsel has supported the impugned judgment.
8. We have given our anxious thought to the contention of learned counsel for appellant and gone through entire evidence with his assistance. The detail of occurrence is disclosed in F.I.R. Exh.P.K.
1. In brief prosecution case is that Isma t Ullah, S.-I./P.W.15, S.H.O., Police Station Jauharabad was at Police Station at 11-45 a.m. On 31-8-2002. He received a spy information that accused Furdous Khan alias Tauqir Khan alias Sulemna alias Muna, resident of Thathi Mian Ranjha, Sargodha, presently resident of Sabzazar Lahore, armed with Klashnikov, Jahangir Chhatha, resident of Township, Lahore, Abbas alias Mian Abbas alias Khurram (appellant) resident of Township, Lahore, Mushtaq alias Papu, resident of Quarter Rehmania Mills near Old Vegetable Market, Faisalabad, Sarfraz Pathhan, resident of Nawan Kot, Shah Pur Saddar, District Sargodha all armed with .30 bore pistols had arrived at the house of Muhammad Riaz, Patwari at Hayat Colony, Jauharabad by Car No.LRC-2616 and were present there, who were indulged in commission of car lifting crimes and that car was also suspected to be the stolen property. On this information that they could be arrested on raid, complainant P.W:15, constituted a raiding party consisting of Azmat Ullah, S.-I., Riaz Hussain, S.-I., Dost Muhammad, A.S.-I., Muhammad Ramzan, A.S.-I., Nazir Ahmed, A.S.-I., Aftab Ahmed, A.S.-I. And some Constables equipped with rifles from his Police Station, Nisar Akbar, A.S.-I.
And others from Elite Force. With the members of Elite Force and local police headed by him raided the place of occurrence. Accused Furdous Khan etc. Were boarding the aforementioned car at that time, who on seeing the police started firing at them aimingly, whereupon, police party took the position, complainant warned the accused loudly to surrender to them but they continued firing.
Police party also resorted to cross-firing exercising right of self-defence. Mian Abbas (appellant), Furdous Khan, Mushtaq, Sarfraz Khan and Jahangir made successive fire shots, which hit Muhammad Ilyas, Constable No.582, Elite Force Khushab respectively on his finger of right hand, big finger of right hand and on right shoulder, who collapsed on sustaining injuries. Rana Abid, Inspector also reached there alongwith Elite Force, Sargodha chasing those accused persons.
Muhammad Ilyas, Constable succumbed to injuries at the spot. Accused Furdous Khan etc. Managed to flee away under blanket firing due to Abadi. On cease of fire, accused Jehangir was found lying injured having fire shot injuries on his abdomen and .30 bore pistol was lying beside him. Two bullets were recovered on unloading the magazine of that pistol. Diggi of car was searched from which three Klashnikovs alongwith six magazines, 110 live bullets, 3 pistols of .30 bore with three magazines and 55 live bullets, three daggers, Mobile set, 30 keys of various kinds of cars, cash Rs.5,000 containing five currency notes each of the denomination of rupees one thousand each, 8 number plates of cars with different numbers and a brief case containing clothes, were recovered. The injury statement of accused Jehangir was drafted and he was removed to Civil Hospital, Jauharabad for his medical treatment, who subsequently died. Mushtaq and Sarfraz accused are proclaimed offenders. Furdous Khan was murdered subsequently and appellant was the only person, who was arrested and faced trial. Eye account has been furnished by Shahid Nisar Akbar, P.W.14 and Azmat Ullah, S.-I., P.W.15. P.W.15 is the complainant and he reiterated the facts stated in the F.I.R. His testimony is corroborated by Shahid Nisar Akbar. He joined the investigation soon after the occurrence. The S.H.O. Collected the blood-stained earth from the place where deceased Muhammad Ilyas, Constable sustained injuries. The same was taken into custody and sealed into parcel vide memo. Exh.P.U. Ammunition was also taken into custody and he is recovery witness of all articles, empties, Klashinkovs and other weapons taken into custody. Evidence of eye- witnesses corroborates each other, they were cross-examined at length but no contradiction to shake their evidence could be brought on the record. The case was partly investigated by Ghulam Hussain, Inspector P.W.16. Eye-witnesses cannot be dubbed as interested P.Ws. Or who have motive to falsely implicate the appellant. They were performing their duties and in encounter life of one constable was lost, whereas, one of desperate criminals was also killed.
9. Ocular account is corroborated by recovery of huge quantity of ammunition and car which was under the use of accused. The police has no motive to falsely implicate the accused. Plea of defence that constable was hit by police firing itself appears to be ridiculous. There was an encounter of the accused with the police party and large quantities of empties were found at the place of occurrence and ammunition was also taken into possession. Version put up by prosecution in the light of circumstances stated in the F.I.R. Rings truth. Prosecution proved its case beyond any reasonable doubt. Trial Court has properly appreciated the evidence in convicting the appellant.
10. Coming to contention of learned counsel for appellant that it is not. Ascertainable whose fire caused death of Muhammad Ilyas deceased, has considerable force. There was exchange of fires between police and the accused. Five accused were firing from one side and police party was firing from the other side. Out of fires of five it is not clear whose fire has caused fatal blow to deceased. One of the accused namely, Jehangir was seriously injured who subsequently died.
Furdous co-accused has been murdered in subsequent police encounter. In such circumstances, it is not sure that appellant's fire proved fatal to the deceased. It is not possible to determine whose fire caused death of the deceased, as such awarding of death sentence is not justified. In view of the aforesaid circumstances, sentence of appellant is altered from death to life imprisonment. The compensation awarded to legal heirs of the deceased Muhammad Ilyas under section 544-A, Cr.P.C. Shall etitioners to pay huge amount within a short span of time at the risk of resumption remain intact and other sentences awarded to him are not interfered with but the same shall run concurrently. Benefit of section 382-B, Cr.P.C. Is also extended to him. Murder reference is answered in negative.
Sentence reduced.