' ZAFAR PASHA CHAUDHARY, J.---Shahid Ahmad son of Taj Muhammad and Sher Muhammad alias Baba son of Gul Muhammad alongwith their co-accused Kamal alias Kamala son of Hassan (absconder) accused in the F.I.R. No.209/1995 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) registered with Police Station, Kalri, Karachi South were sent up to face trial in the Court of Mr. Muhammad Sabir Chippa, VIth Additional Sessions Judge, KarachiSouth. On conclusion of the trial Shahid Ahmad and Sher Muhammad, appellants were convicted under section 302/34, P.P.C. And were sentenced to suffer imprisonment for life vide judgment dated 12-4-2002.
2. The prosecution case as spelt out from the F.I.R. Lodged by Suleman son of Soomar (P.W.4) and his subsequent statement made in Court is that on 2-11-1995 at 8-30 p.m. He was sitting on the counter of his hotel when three accused persons (Shahid Ahmad, Sher Muhammad and Kamal alias Kamala) came there and surrounded him. One who was empty-handed took position at the back and the two who were armed with TT pistols. Took positions in the front. Accused Shahid Ahmed (who was standing at the back) pulled the drawer of the counter and picked out Rs.8,000 or Rs.8,500 lying therein. After removing the said amount, all the three aforesaid accused persons tried to make their escape. The complainant raised alarm which attracted the people around. They rushed towards the hotel and also chased the accused persons by pelting stones on them. A taxi had been parked nearby. Firing was made from within the taxi towards the people who were chasing the accused persons to apprehend them. As a result of firing Nadeem, Mansoor, Usman Ghani and All Muhammad (four persons) received fire-arm injuries. Ali Muhammad died at the spot. The remaining three injured persons succumbed to the injuries later in the hospital. As a result of firing, the taxi caught fire. Two of the companions of the accused persons sitting in the taxi got burned and expired there in the taxi.
' The complainant reported the matter within about 25 minutes to the police. On his statement formal F.I.R. (Exh.13/B) was registered. The police prepared necessary memos and also secured from the spot five empties of Kalashnikov from within the taxi and two empties of .30 bore pistol. A .30 bore pistol alongwith one steel plate was also recovered from the taxi.
3. The investigation was undertaken by the police. A number of police officers participated in the investigation and performed necessary functions for completion of the same. Iftikhar Ahmad, S.I.
Carried out the main investigation, recorded the statement of witnesses under section 161, Cr.P.C., got autopsy of the dead bodies from the relevant medical officers. He inspected the place of occurrence and prepared necessary memos. He appeared as P.W.14 and testified the various memosprepared by him and the recoveries effected from the spot.
' Asghar All Shah, Inspector/S.H.O., Frere, Karachi South also conducteds the investigation. He examined various P. Ws. Whose statements had been recorded earlier. He as such verified the investigation already undertaken by the Inspector. On completion of the investigation holding the accused persons as guilty sent up to the Court to face trial.
4. The prosecution in support of its case examined 18 witnesses. Out of them Suleman, complainant (P.W.4) is the most important and relevant witness. He, during' trial, reiterated his previous statement made to the police and also testified the various memos attested by him.
5. P.W. 2 Hashim Soomro is a witness who testified in Court that the incident as narrated by the complainant did take place in front of the shop of the complainant. He also stated about the dead bodies lying at the spot which were taken into possession vide memos which were attested by him.
P.W.3 Muhammad Kamil who is resident of the Mohallah where the incident occurred deposed that the dead bodies were taken into possession and he testified the relevant Mashirnamas memo.
6. P.W.6 Muhammad Umar is son of the complainant. He was present near the place of occurrence.
He reached the spot on hearing the reports of firing. He made statement in the line with the statement already made by his father, the complainant. According to him, 4/5 unknown persons looted his father who raised cries on which the neighbouring people were attracted. According to him four persons were injured on account of firing. An injured person succumbed to the injuries. A taxi which had been parked near the complainant's hotel caught fire due to firing. The two persons who were accomplices of the accused got burned in the taxi and as such expired. According to him, Sher Muhammad and Shahid were arrested by the police and were got identified by his father, the complainant. Both of them were amongst the looters who robbed the money whereafter the incident ensued. The witnesses identified both the accused Sher Muhammad and Shahid Ahmad in Court who were present there to face trial.
7. Dr. Qarar Ahmad, P.W.11 conducted autopsy on dead body of Usman Ghani, which was identified by Mansoor Ahmad and Hashim Soomro. Similarly Dr. Abdul Ghafoor, P.W.12 conducted post- mortem examination of dead body of Ali Muhammad.
8. Mr. Niaz Hussain Shah who was posted as SDM City, Karachi South held the identification parade of Shahid Ahmad and Sher Muhammad. He furnished the details of the proceedings. The accused persons were mixed up with 15 dummies. After holding the identification test, he prepared reports Exh.39. He testified the same in Court. According to the report Shahid Ahmad and Sher Muhammad were correctly identified and picked up by Suleman, complainant.
9. The remaining prosecution witnesses are mainly from police. They provided the details of -the necessary functions performed by them during investigation.
10. On close of the prosecution evidence, the appellants were examined under section 342, Cr.P.C.
Both the appellants denied the allegations levelled against them and pleaded that they were innocent and falsely implicated because they did not oblige the police. Shahid Ahmad also denied the recovery of pistol which contained four live bullets from him. The appellants neither led any evidence in defence nor they opted to make statements under section 340(2), Cr.P.C.
11. The learned counsel for the appellants have challenged the conviction being not maintainable and contrary to the evidence brought on record. According to the learned counsel, the prosecution has failed to discharge its onus. As against that, the learned counsel on behalf of the State has supported the conviction and argued that six persons lost their lives in the incident. All the assailants including the appellants were acting in furtherance of their common intention. They committed robbery (Harrabah) and also murder as a result of an elaborate pre-planning.
12. We have heard the learned counsel for the parties and have also carefully gone through the evidence and relevant record.
' The main contention raised on behalf of the appellants is that the identification of the assailants who are the appellants before this Court was not possible. According to learned counsel, right from the beginning the complainant had been stating that the assailants had muffled their faces.
Obviously when the faces had been muffled, they could not be seen either by the complainant or by any other witness. During course of examination in answer to a question, the complainant explained that during course of incident the face of Shahid became unmuffled and visible. The complainant did not tender any explanation with regard to Sher Muhammad, appellant. The learned counsel has therefore, laid emphasis pn the identification of the accused persons. It has next been argued that practically the prosecution case hinges on the sole testimony of the complainant. According to him, the huge los8 of lives of six persons which included two of the assailants shOuld not in any manner prejudice the mind of the Court. If the identification of the assailants is not established beyond doubt and the same remains doubtful then the benefit of the same should be extended to the accused persons and they should be acquitted of the charges.
13. The learned counsel has also taken us through the evidence of the complainant and his son and other supporting witnesses.. He has pointed out some discrepancies especially with regard to the positions held by the assailants, the manner they entered the shop and forcibly removed the money. According to the learned counsel there are material discrepancies
14. We take up the pleas raised by the learned counsel one by one. The fact that the accused appellants entered the hotel with muffled faces has been admitted even in the F.I.R. By the complainant. A question, however, arises that in the circumstances of the present case, the complainant would have seen the faces of the assailants requires determination. As it is evident from the facts of the case that the accused who were armed approached the complainant sitting on the counter of his hotel. They demanded money from him and forcibly removed the same from the drawer of the counter. The demand of money appears to have not been accepted by the complainant, therefore, they opened the drawer and removed the amount therefrom. Their coming to the hotel, demanding the money under threat and thereafter removing the same would have definitely consumed some time. The complainant and the accused assailants were very close to each other and they remained as such for quite some time. After they had robbed the complainant they tried to escape. The complainant raised cries which attracted a number of persons from the locality. The assailants were chased. During the chase firing was made by the persons who were sitting in the taxi. Obviously the firing had been made in order to defend and rescue the robbers.
There remains no doubt to believe that the persons sitting in the taxi were the companions of the robbers and all had come together. They were all accomplices in commission of the offence.
Indiscriminate firing on the mob was made. Unfortunately four innocent persons received injuries who subsequently succumbed to the injuries. The firing was so intense and severe that the taxi itself got fire and two persons sitting in the taxi who obviously were companions and accomplices of the robbers got burned therein. The entire episode of committing robbery, firing and burning of taxi must have taken a considerable time. Therefore, all the period it was not possible for the assailants to remain muffled faces. The complainant and other witnesses must have seen the accused/appellants. Mere fact that the complainant in his report to the police has stated that the offenders were muffled faces does not in any manner, in the circumstances of the present case, would create an impression that they could not be seen or identified.
15. The complainant who is absolutely an independent witness has no malice or motive to falsely implicate the appellants. He joined the identification parade before the Magistrate as per identification report Exh.39 submitted by the Magistrate, the complainant correctly picked up and identified the appellants as culprits. The complainant clearly stated in the Court that the appellants who were facing trial had committed the offence. The complainant's statement in the police report that the faces of the accused were muffled in a way adds to his credibility and truthfulness. The complainant right from the beginning came forward with the truthful statement. Had he intended to falsely implicate the appellants he could have very conveniently stated in the F.I.R. That the accused had not covered their faces or that their muffles were removed during the long commotion which took place at the time of occurrence. The statements of the complainant and his supporting witnesses inspire full confidence. The Testimony cannot be discarded. The accused were identified during the test identification' and they identified the accused in Court as well. Even otherwise the accused persons would have been seen by a number of persons. It Would not be possible for the complainant or even for the police to have substituted the accused/appellants with real culprits.
16. Various discrepancies pointed out "any the learned counsel in The statements of the complainant, and the supporting witnesses are firstly insignificant and secondly it is not understandable as what is sought to be inferred from these discrepancies. The occurrence had definitely taken place. On a query from the learned counsel that in case the discrepancies pointed out by him are considered important they will lead to what conclusion? To conclude that no robbery took place or no one was murdered is absolutely impossible. The learned counsel has not been able to explain as what was his aim of pointed out the so-called variations or discrepancies in the description of the facts. We are not impressed by this contention.
17. The next 'argument that whether the accused persons who actually approached the complainant for robbery and the persons sitting in the taxi were members of the same party and they were acting in furtherance of their commdn intention has been detailed above. The persons who were sitting in the taxi opened fire when their co-accused were trying to escape after committing robbery. There is no doubt that the firing was made to defend and protect their co- accused. The very factthat the taxi had been parked close to the hotel and the firing was started at the moment it was seen that their co-accused might not be apprehended leaves.No doubt in believing that all the accused persons sitting in the taxi and those committing robbery were acting in pursuance of their common object or acting in furtherance of their common intention depending on the number of the accused persons. All of them were members of the same party and they committed offence of robbery jointly and during commission of the offence they committed murder of four innocent persons. The firing resorted to by the accused persons was so intense and reckless that they had the knowledge that their firing may result in death of some persons. The accused persons committed robbery during course of which four murders have been committed and as such they have committed offence of Harrabah. The conviction has been recorded under section. 302/34, P.P.C. And the appellants have been sentenced to life imprisonment. The trial Judge has taken a lenient view qua the sentence. In absence of revision for enhancement of sentence, we do not intend to issue notice in this behalf either.
18. In view of what has been discussed above, the appeal is dismissed. The conviction and sentence of the appellants are, upheld and maintained.