' TANVIR BASHIR ANSARI, J.--- Liaqat Ali, Abdul Shakoor and Noor Ahmad appellants were tried under sections 302/397/427, P.P..C. Vide judgment dated 17-1-2001, all the appellants were convicted and sentenced as under:--
(i) Under section 302(b), P.P.C. (For the murder of Hafeez Ahmad and Mst. Rashida Bibi). All the these appellants were sentenced to death on each count with order to pay Rs.1,00,000 as compensation to the legal Walies of each deceased on each count under section 544-A, Cr.P.C.
And in default whereof to undergo six months' S.I. On each count of the default.
(ii) Under section 324/34, P.P.C. (For murderous assault on Mst. Rizwana P.W.11 and causing her injury declared as Sajjah-i-Damiah). All the three appellants were sentenced to 10 years' R.I. Each with fine of Rs.20,000 each and in default thereof to further undergo one year's R.I. Each and in addition to that the sentence of Arsh which is one-half of the Diyat and 3/4th share of each appellant comes to Rs.2,370,077 each and in default thereof to suffer S.I. Till payment and each of the appellant was also awarded the sentence of 7 years' R.I. As Tazeer.
(iii) Under section 324/34, P.P.C. (For murderous assault at Tanvir Ahmad P.W.10). All the three appellants were further awarded sentence of 7 years' R.I. Each with fine of Rs.5,000 each and in default whereof to further undergo six months' R.I. Each.
(iv) Under section 324/34, P.P.C. (For murderous assault at minor Mst. Rafia Bibi). All the three appellants were further awarded sentence of 7 years' R.I. Each with fine of Rs.5,000 each and in default whereof to further undergo six months' R.I. Each.
' All the sentences of imprisonment except for default of payment of compensation, Arsh and fine shall run concurrently with benefit under section 382-B, Cr.P.C.
2. The prosecution case as disclosed in the F.I.R. Exh.P.R. Registered upon the complaint of Tanvir Ahmad son of Muhammad Ali is that on 19-2-1996 while the complainant along with Hafeez Ahmad brother (deceased), Mst. Rashidan Bibi mother (deceased), Mst. Tahira Perveen sister along with Mst. Rafia Bibi minor, Mst. Nasreen Bibi wife of Hafeez Ahmad and Mst. Rizwana Naseer were proceeding on Car from Faisalabad to Chak No.72/JB Gullabi Pur to celebrate Eid when at 8-45 p.m. They reached near Chak No.72/JB, they were accosted by four persons, all armed with fire- arm weapons who signalled the driver Hafeez Ahmad to stop the car. The accused tried to stop the car by throwing a Bicycle in front of the vehicle. When Hafeez Ahmad tried to accelerate the motor car to escape, all the four co-accused started indiscriminate firing upon the car, as a result of which, Hafeez Ahmad sustained injuries on the right side of his head and on his left. Arm, Mst. Tahira Perveen suffered injury on her right arm and right side of abdomen, Mst. Rizwana was hit on the backside of her head while Mst. Rashidan Bibi was hit on the head on the right side. The complainant, Mst. Nasreen Bibi and Mst. Rafia minor escaped unhurt. The motor car got stalled at a little distance in the wheat fields. Hafeez Ahmad and Mst. Rashidan Bibi succumbed to their injuries at the spot.
' No one was initially nominated as an accused in the F.I.R.
3. In support of its version, the prosecution produced as many as 21 witnesses. The ocular account is rendered by Tanvir Ahmad complainant P.W.10, Mst: Rizwana Bibi injured witness P.W.11 and Muhammad Boota P.W.12. The medical evidence was rendered by Dr. Qaiser Abbas P.W.6 who medically examined Mst. Tahira Bibi and Mst. Rizwana Bibi and Dr. Mian Tahir Javed P.W.9, who conducted the post-mortem examination upon the dead-bodies of Mst. Rashidan Bibi and Hafeez Ahmad. In addition to this, the report of Chemical Examiner Exh.P.HH, report of Serologist Exh.P.JJ and report of Forensic Science Laboratory Eich.P.KK was tendered in evidence.
4. The prosecution produced Muhammad Naeem P.W.14, who is the witness of recovery of .222 bore rifle P.12. Magazine P.13 from accused Liaquat. He was also a recovery witness of a .30 bore pistol P.14 from accused Abdul Shakoor, P.W.16 Muhammad Yaqoob is the recovery witness of 14 crime empties from the spot. Bicycle P.15 and the Car P.11. This witness was not cross-examined by the defence. Other important witnesses for the prosecution comprised of P.W.18 for the recovery of a .222 bore rifle from Noor Ahmad. P.W.1 Allah Ditta, S.-I./Incharge Police Post, Raza Abad, Muhammad Akmal, Inspector P.W.19 and Sadiq Ali, Inspector/S.H.O. /Investigating Officer, P.W.21. Other prosecution witnesses were by and large formal in nature.
5. After recording the prosecution evidence, all the three appellants recorded their statements under section 342, Cr.P.C. Wherein their version was that they have been falsely implicated in the case which was lodged against them on account of hostility. They denied the legality of the identification parade and also denied the recovery from each alleging the same to have been planted recoveries. None of the appellants opted to record their statement on oath under section 340(2), Cr.P.C. Nor did they opt to produce any defence evidence.
6. The learned trial Court in consideration of the aforesaid material on the record proceeded to convict and sentence the appellants as hereinbefore detailed.
7. We have heard M.A. Zafar, Advocate for the appellants, Syed Zahid Hussain Bokhari, Advocate for the complainant and Mr. Saeed Ahmad Malik, Advocate for the State and have extensively perused the record.
8. It is submitted by the learned counsel for the appellants that there was no material evidence which could connect the appellants with the offence. It is submitted that admittedly, it was an occurrence which took place in the darkness of the night and that it was not possible for the complainant or anyone else to have identified that actual accused. It is submitted that this is the reason why the accused were not named in the F.I.R. About the identification parade held to identify the appellants Liaquat Ali and Abdul Shakoor, it is contended that the identification parade was conducted after 5 months of the arrest of the said accused and that there was ample opportunity for the witnesses of the prosecution to have seen the said appellants on the basis of which they promptly identified them. It is submitted that as for appellant Noor Ahmad is concerned, no identification parade was admittedly conducted for his identification.
' The learned counsel for the appellants has relied upon the case of Ghulam Rasul and 3 others v.
The State 1988 SCM R 557; Mehmood Ahmad and 3 others v. The State and another 1995 SCM R 127; Khadim Hussain v. The State 1985 SCM R 721 and Shabbir Ahmad and 4 others v. The State 1972 PCr.LJ 310 to contend that in the circumstances of the present case, it was not possible to pinpoint the involvement of the appellants. He further submitted that the statements of Muhammad Boota P.W.12 and Altaf Ahmad, P.W.13 were not sufficient to prove the identity of the appellants at the initial stage. Regarding P.W.12, it is contended that the said witness does not state to have recognized the appellants at the time of occurrence. He also submitted that non-production of Saleem mentioned in the statement of P.W.13 would also militate against the prosecution.
9. On the other hand, it has vehemently been contended by the learned counsel for the complainant and the State that this was a case of promptly lodged F.I.R. And that there was no occasion for the false implication of the appellants in the occurrence. No enmity has been brought out between the complainant party and the appellants on the record. More importantly, it is submitted that crime empties recovered from the spot adequately matched with the crime weapons used by the appellants and that unimpeachable evidence of the prosecution witnesses in this regard proved the guilt of the appellants beyond any shadow of doubt. It is further contended that the ocular evidence is fully corroborated by the medical evidence which included the report from the Forensic Science Laboratory. It was concluded that the occurrence took place while the complainant party was travelling in a motor car and the offence attributed to the appellants was grave and heinous in character which resulted in the murder of two innocent persons.
10. In the light of these submissions made at the bar and evaluating them with the perusal of the material on the record, we find that the F.I.R. In question was indeed lodged promptly at 9-30 p.m.
On the date of occurrence viz. 19-2-1996. The account rendered by the complainant in the F.I.R.
Exh.P.R. Is given in sufficient detail. The mere fact that no intention of the complainant party to falsely involve any person, indeed in such cases of Highway robbery/dacoity, it is hardly ever expected that the accused would be previously known to the complainant party. It is not denied that the occurrence as alleged did take place and that as a result of the occurrence, two innocent lives were lost.
11. The occurrence which took place in the manner stated in the F.I.R. Is amply proved by the ocular account rendered by the complainant P.W.10, Mst. Rizwana the injured witness P.W.11. Nothing turns upon the submission made by the learned counsel for the, appellants that it was a dark night occurrence or that the accused were not named in the F.I.R. There is no cogent evidence put forward by the appellants to persuade us to disbelieve the statements recorded by P.W.12 and P.W.13. The corroboration of the manner of occurrence as given in the F.I.R. Viz. That a Bicycle was thrown in the front of the motor car to stop it is fully supported by the statement of P.W.12 and the recovery of Bicycle from the spot. This P.W. Corroborates the factum of death of two deceased persons as well as injuries to the injured. Altaf Ahmad P.W.13 clearly identified the appellants and has also stated the reason of being acquainted with the appellants. Nothing much has been elicited from the cross-examination of P.W.12 or P.Wi13 which could detract from the efficacy of their statements.
12. As regards the corroboration of the prosecution case against the appellants Liaquat Ali and Abdul Shakoor is concerned, an identification parade was duly conducted by Muhammad Azam Awan, Judicial Magistrate P.W.15. He has categorically stated that on 5-8-1996, the identification parade was held under his supervision. He stated that 14 other persons along with the accused Liaquat Ali and Abdul Shakoor were included for the purpose of identification parade and the complainant Tanvir Ahmad, Mst. Tahira Perveen, Mst. Rizwana Naseer, Mst. Nasreen and Muhammad Boota identified the said appellants. From the perusal of the said statement, we do not find any such irregularity which would vitiate the proceedings of the identification process.
13. We have also, placed the ocular account in juxta-position with the medical evidence recorded by the respective Medical -Officers (P.W.6 and P.W.9).
B P.W.6 found the following injuries the person of Mst. Tahira Bibi:-- ' Injuries
(1) A fire-arm wound of entry with inverted margins 1 c.m. x 1 c.m. x DNP on front of right side abdomen 6 c.m. Below an right from umbilicus. Corresponding holes were present on Qameez and Banian which were also bloodstained, Shalwar was also bloodstained.
(2) A fire-arm wound of entry with inverted margins 3 c.m. x 1-1/2 c.m. x through and through on inner side of right fore-arm upper part with a fire-arm wound of exit 3-1/2 c.m. x 2 c.m on outer side of right fore-arm upper part. Corresponding holes proceedings present on shirt which was also blood-stained.
' He also reported the following injuries on the person of Mst. Rizwana injured:-- ' Injuries "A lacerated fire-arm wound of entry S c.m. x 2 c.m. x brain matter coming out of brain on back of head. (Note:- The condition of the patient was serious)."
' The post-mortem examination upon the dead bodies of Mst. Rashidan Bibi and Hafeez Ahmad was conducted by P.W.9, who reported as under:-- Rashidan Bibi
(1) A fire-arm wound entry 2 c.m. x 2 c.m on the back of right side of head, 7 c.m. From Pinna of right ear at its lower level, on exploration the projectile ruptured the scalp, fractured the right side of occipital bone entered the cravial cavity then it ruptured the membrains, both the hemispheres of brains through and through directing upwards and to the left side and bullet was found from the cranial cavity in contact with the left parietal bone. Cranium and spinal cord were injured.
Opinion ' In my opinion the cause of death in this case was shock due to haemorrhage and brain damage resulting from injury No.1 inflicted by fire-arm weapon which was ante-mortem and sufficient to cause death in the ordinary course of nature. Hafeez Ahmad
(1) A fire-arm wound of entry 3 c.m. x 2-1/2 c.m. On the back of the left side of head 3-1/2 c.m. Back of left ear at its middle level, brain matter was coming out of the wound. On exploration the projectile ruptured the scalp, fractured the occipital bone on left side then ruptured the membranes with both hemispheres of brain matter through and through directing to the left side and upwards. A D-shaped metallic foreign body was found from the brain matter, there was also fracture on left parietal bone.
(2) A grazine fire-arm wound 3 c.m. x 2 c.m. Skin deep, front of left elbow, no bony injury was seen on exploration. Cranium and Spinal Cord were injured.
Opinion ' In my opinion the cause of death was shock due to haemorrhage and brain damage resulting from injuries Nos. Land 2 inflicted by fire-arm weapon which were ante-mortem and sufficient to cause death in the ordinary course of nature collectively, while Injury No.1 was sufficient to cause death individually as well.
The ocular account is fully supported and corroborated by the medical evidence.
14. In view of the foregoing, we fmd that there is ample corroborative evidence against the appellants Liaquat Ali and Abdul Shakoor on the basis of which the learned trial Court convicted and sentenced these two appellants in the judgment in question. After a careful perusal of the evidence we are not persuaded to take a view any different from the one expressed by the learned trial Court in respect of the appellants Liaquat Ali and Abdul Shakoor. Resultantly, we uphold and sustain the judgment of conviction and sentence against these two appellants.
15. As regards the case of Noor Ahmad third appellant, we find that the statement of P.W.13 is not corroborated by any other material on the record. No identification parade has been conducted in respect of this appellant. It would thus, be unsafe to rely upon the sole uncorroborated statement of P.W.13. We have indeed noticed that while no cross-examination has been conducted upon P.W.13 in respect of his nominating Liaquat Ali and Abdul Shakoor, the veracity of the statement of P.W.13 was questioned through cross-examination in respect of Noor Ahmad.
16. It would be in the interest of safe administration of justice to hold that the prosecution has not been able to prove the guilt of appellant Noor Ahmad beyond all shadow of doubt.
17. The upshot of the above discussion is that the appeal to the extent of Liaquat Ali and Abdul Shakoor is dismissed and the sentence of death passed by the learned trial Court is confirmed. To the extent of Noor Ahmad the Criminal Appeal is allowed and his conviction and sentence is set aside. The death sentence in respect of Noor Ahmad is not confirmed. He is directed to be released forthwith, if not required to be detained in any other case. .