' DOST MUHAMMAD KHAN, J.---Appellants (1) Imtiaz, (2) Raj Muhammad, (3) Muhammad Siddique,
(4) Muhammad Riaz, (5) Muhammad Javed and (6) Faqir Muhammad were tried by the Judge Anti-Terrorism Court Hazara Division, Abbottabad on the charges under sections 17(4) Haraba, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on a murder charge for offence under section 302 read with section 149, P.P.C. And for crime under section 324 read with section 149, P.P.C. As well as under sections 6 and 7 of the Anti-Terrorism Act, 1997 and after finding them guilty, upon conviction appellant Imtiaz has been sentenced to death for causing the murder of Muhammad Iqbal during the course of committing dacoity with a fine of Rs,1,00,000 or in default of payment of fine to suffer two years' S.-I. Under section 396, P.P.C., Raj Muhammad appellant has been sentenced to rigorous imprisonment for life with a fine of Rs,60,000 or in default of payment of fine to suffer two years' S.-I. For causing grievous fire-arm injury to Mujahid Iqbal (P.W.13) while appellants (i) Muhammad Siddique (ii) Muhammad Riaz (iii) Muhammad Javed and (iv) Faqir Muhammad have been sentenced to 7 years' R.I. Each with a fine of Rs,50,000 each or in default thereof to suffer one year. S.-I. They have been convicted and sentenced under section 148 read with section 149, P.P.C. And under sections 6 and 7 of the Anti-Terrorism Act, 1997 to two years' R.I.
However, the sentences awarded to them were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was given to them. The absconding accused Tasawar has been declared proclaimed offender.
' The learned trial Judge has sent Murder Reference No,4 of 2005 for confirmation of death sentence awarded to Imtiaz appellant vide his judgment dated 21-5-2005 while, Mujahid Iqbal, the injured P.W., has filed Criminal Revision Petition No,17 of 2005 seeking the enhancement of the sentence of life R.I. To death sentence given to Raj Muhammad as well as enhancement of fine amount. He has also sought enhancement of the sentence of 7 years' R.I. To death penalty of the four appellants, namely, Muhammad Siddique, Muhammad Riaz, Muhammad Javed and Faqir Muhammad with a further prayer that the substantive sentences may be ordered to run consecutively. This judgment shall, therefore, also decide the said criminal revision petition as questions of law and facts in both are identical.
2. Briefly stated, the prosecution case is that on 5-2-2005 Muhammad Younas (P.W.10) reported the incident to Fazalur Rehman A.S.-I. (P.W.21) that after closing his hotel called "Zahid Nehari Hotel" he boarded a Suzuki Pick-up bearing No,B-2595-ATD for going to his village while Niaz, Rizwan, Sohail, Qaisar, Bilal, Mujahid Iqbal, Naseer and some other passengers also occupied the rear seat of the Pick-up driven by Muhammad Iqbal deceased. During the transit, when the pickup crossed "Pakhwal turn" and reached a graveyard at about 8-15 p.m. Five culprits emerged from the graveyard, all armed with deadly weapons and stood on the road, forcing the driver to bring to halt the Pick-up. They on gun point directed the passengers to get down. Two of the armed men guarded the process of looting the passengers by the co-accused while standing on the road. The accused snatched Rs,200 from him and the other passengers were also deprived of their cash/valuables but he could not give the details about the same. He further disclosed that when Muhammad Iqbal driver showed resistance he was fired upon, as a result he was hit on his chest.
Similarly, Mujahid Iqbal P.W. Was also hit on his head and got injured. According to him, all the accused were talking in "Hindko language". After consummation of the crime the accused fled away. The two injured were shifted to the hospital but Muhammad Iqbal driver succumbed to his injuries during the transit while Mujahid Iqbal was lying in semi unconscious condition: The occurrence was witnessed by him, by Mujahid Iqbal and the other passengers the victims of the robbery. This report was recorded in the casualty ward of Civil Hospital, Mansehra by Fazalur Rehman A.S.-I. Which is Exh.P.A./1 and on its basis case F.I.R.No,96 of the same date was registered at 2200 hours in Police Station City Masehra. The report was lodged at 2100 hours.
3. During the course of investigation, Imtiaz accused along with co-accused were suspected, thus he was arrested on 13-2-2005 and on his pointation the crime Kalashnikov was discovered and was taken into possession vide recovery memo. Exh.P.C./3. He disclosed some more facts which led to the arrest of Raj Muhammad appellant and a "kalakoff" was discovered on his pointation and instance on 22-2-2005 which was taken into possession vide recovery memo. Exh.P.C./10. On 13-2- 2005, after his arrest a 30 bore crime pistol was discovered at the pointation and at instance of Riaz appellant which, was taken into possession vide memo. Exh.P.E./4. Similarly while in police custody on pointation of Faqir Muhammad appellant one .30 bore crime pistol was discovered on 13-2-2005 and was taken into possession vide recovery memo. Exh.P.E./6. Appellant Javed was also arrested who led the police party to a place shown in sketch and on his pointation and instance another crime Kalashnikov was discovered on 13-2-2005 which was taken into possession vide recovery memo. Exh.P.E./5 and lastly on the pointation and instance of Siddique appellant, one more .30 bore crime pistol was discovered on 4-3-2005 which was taken into possession vide memo. Exh.P.C./13.
4. Accused-appellants (1) Faqir Muhammad, (2) Javed, (3) Imtiaz and (4) Riaz were arrested on 9- 2-2005. Accused Raj Muhammad was arrested on 22-2-2005 while Siddique appellant was arrested on 4-3-2005. During the interrogation Rs,1100 was recovered from Raj Muhammad accused on 25-2-2005 produced by his brother being the share in the looted money. Recovery memo. To that effect is Exh.P.C.12. From Siddique appellant Rs,11500 was recovered on 7-3-2005 and memo. To that effect is Exh.P.C.14.
5. During spot inspection blood-stained earth from the place of deceased was secured through memo. Exh.P.C.2 on 6-2-2005 and from the place of injured it was collected, the memo. To that effect is Exh.P.C./3.
' Through memo. Exh.P.C./4 two crime empties of 7.62 bore were collected from the spot. Similarly, two live rounds of the same bore were secured through memo. Exh.P.C./5. Through memo.
Exh.P.C./6 two crime empties of 7.62 bore were collected from another place while two crime empties of .30 bore pistol were secured from the spot through memo. Exh.P.C./7. A spent bullet embedded in the earth was secured through memo. Exh.P.C./8.
6. Through memo. Exh.P.C./9 blood-stained clothes of Mujahid Iqbal injured P.W. And through memo. Exh.P.C./10 clothes of deceased driver were taken into possession. All these incriminating articles were sealed into separate parcels on its recovery in presence of the marginal witnesses including Muhammad Rizwan (P.W.12).
7. All the crime weapons so recovered and the crime empties secured from the spot were sent to the Arms Expert who after examination gave his report Exh.P.L. In the positive. In his opinion the said empties were fired from the crime weapons shown above.
' Accused Faqir Muhammad, Javed, Imtiaz and Muhammad Riaz were subjected to identification parade in District Jail, Mansehra through Muhammad Mushtaq (P.W.14) on 24-2-2005 which was conducted in presence of the Jail Superintendent by Mr. Asadullah' Khan Judicial Magistrate (P.W.18) and they were duly identified by the said P.W. In the said process.
' Accused (i) Muhammad Riaz, (ii) Javed, (iii) Faqir Muhammad and (iv) Imtiaz were produced before Mr. Sher Afzal Khan Marwat, learned Senior Civil Judge/J.MIC (P.W.12) on 14-2-2005 where they made clean breast confessions by admitting the present crime. The gist of the confessional statements is that on 5-2-2005 Raj Muhammad informed Muhammad Riaz accused through mobile phone of his brother bearing No,0300-5619512 to come to the house of Siddique accused after the evening who took with him .30 bore pistol and arrived there at the appointed time where Imtiaz, Raj Muhammad, Faqir Muhammad, Javed, Tasawar (P.O.) and Siddique appellant were already present duly armed with fire-arms and in the house of Siddique they deliberated, planned and arranged. For committing dacoity/robbery. According to the pre-planned programme, they went towards the graveyard when at the fateful time the Pick-up -carrying the victims came from Mansehra side which was forcibly stopped by five of them at gun point while the other two were guarding the area with the view to confront any resistance or counter action. During the looting of money from the passengers, the driver of the Pick-up started quarrelling with Imtiaz appellant and in that course Imtiaz fired at him with which he was hit while Raj Muhammad fired at another passenger who too was hit and got injured and then they left the spot along with looted money and concealed their weapons at different places which were later on recovered as stated above.
The rest of the confessional statements are almost in the same sequence and in the same tone and tune with little variation. Similar is the confessional statement of accused Muhammad Siddique which was recorded on 8-3-2005 by Mr. Ishfaq Taj Senior Civil Judge/J.MIC, Mansehra (P.W.17) while Raj Muhammad accused confessed his guilt before Miss Hina Khan Civil Judge/J.MIC on 26-2-2005 wherein substantially the same story has been given.
' After recording the statements of P.Ws., issuance of warrant of arrest and proclamation against Tasawar, the absconding accused, and receiving the report of fire-arms expert and that of chemical examiner, charge-sheet was filed in the trial Court where initially the appellants were charged under section 17 (3) Offence of Haraba (Enforcement of Hudood) Ordinance, 1979 read with sections 302/148/149, P.P.C. And sections 6 and 7 of the A.T. Act as well as under section 324, read with section 149, P.P.C. However, the charge was amended by the trial Court on 19-5-2005 on the written request of the Public Prosecutor where after supplementary statements of all the accused were recorded under section 342, Cr.P.C.
8. At the trial prosecution examined 22 witnesses in all.
9. The entire case of the prosecution is based on the following pieces/items of evidence:--
(i) Ocular account given by Muhammad Younas (P.W.10) the complainant, Muhammad Rizwan (P.W.12), Mujahid Iqbal injured (P.W.13) and Muhammad Mushtaq (P.W.14).
(ii) The incriminating recoveries, i.e,, the crime weapons, the crime empties and a spent bullet.
(iii) The positive report of the arms expert of F.S.L. Peshawar.
(iv) The discoveries of the incriminating articles made/effected at the instance and pointation of the accused-appellants including the looted money.
(v) The memo. Of identification parade of all the accused supported by Muhammad Mushtaq (P .
W . 14) and Mr. Asadullah Khan J.MIC/CJ-VII Mansehra (P.W.18) who conducted the same.
(vi) The chemical examiner report which is positive in respect of the blood-stained clothes of deceased and the injured P.W. Mujahid Iqbal and the blood-stained earth collected from the spot.
(vii) Copies of F.I.Rs, of 13 registered criminal cases almost of the same nature (Exh.P.Ws.21/6 to 18 showing the previous conduct of the accused-appellant in which they were involved.
(viii)The post-mortem report of the deceased, the medico-legal report in respect of Mujahid Iqbal (P.W.13) and the testimony of Dr. Qazi Ejaz Ahmad, MO, (P.W.4) in this respect.
(ix) Testimony of Muhammad Sabir Khan IHC No,91 (P.W.5) who is marginal witness to the recovery memos. And pointation memo. Through which the crime weapons and the looted money were discovered and taken into possession from the accused at their pointation/presentation.
(x) The confessional statements of appellant Exh.P.K. To Exh.P.K.16 and Exh.P.W.l1/1 to Exh.P.W.11/3 recorded and confirmed by Mr. Sher Afzal S.C.J/J.MIC (P.W.22), Miss Hina Khan J.MIC (P.W.11) and Mr. Ashfaq Taj SCJ/J.MIC (P.W.17).
10. In their replies to the questions put to them under section 342, Cr.P.C. All the accused-appellants have given stereotype statements regarding their confessional statements. They have alleged that these were procured through third degree method by the police after subjecting them to torture.
They have shown ignorance about the recoveries and have also denied the recovery of crime weapons from them or at their pointation.
11. To the question as to what was their statement and why they were charged. Their replies are that they are innocent. God knows better that who committed the crithe and how and where the occurrence took place. They alleged that the occurrence has not taken place in the manner so put up and they were involved by the local police because it was under pressure from the superior officers to trace out the culprits and fix responsibility on any one whosoever he is and that they were not charged by name in the F.I.R and that some of the eyewitnesses were examined with a delay of 2 or 3 days particularly Mujahid Iqbal injured P.W. Who was examined on 9-2-2005 under section 161, Cr.P.C.
12. We have heard the learned counsel for the appellants, for the complainant and for the State and have gone minutely through the evidence/facts on record.
13. Learned counsel for the appellants raised the following contentions:--
(i) That there is a conflict between medical and ocular account as according to him the distance between the deceased and his assailants was one pace while on the entry wound blackening marks were found by the doctor while in the case of Mujahid Iqbal injured P.W. Distance is the same but no such marks were found on his entry wound.
(ii) The identification parade was delayed as it was held on 24-2-2005 while the identifying witness Muhammad Mushtaq (P.W.14) name has not been mentioned in the F.I.R. Thus it has got no legal value.
(iii) That under section 19 read with section 27 of the Anti-Terrorism Act, 1997, crime of this nature is to be investigated by joint investigation team to be headed by an Inspector while in this case substantial part of investigation has been carried out by an A.S.-I. Fazalur Rehman Khan. Thus the defect is incurable.
(iv) That there are some conflicts in the confessional statements of the accused-appellants and that confession of Muhammad Javed, Faqir Muhammad, Imtiaz and Riaz has lost its evidentiary value as they were produced jointly before the same Magistrate Mr. Sher Afzal Khan Marwat (P.W.22).
(v) That some of the eye-witnesses have made improvements at the trial, therefore, their testimony cannot be relied upon without independent corroboration which is not available in the case.
(vi) That appellants Imtiaz and Siddique were shown in the charge-sheet as 18 years of age, thus they were juvenile at the time of occurrence and their trial held by the Anti-Terrorism Court stands vitiated.
(vii) That the appellants were for the first time charged on the 4th day of occurrence and that too not by the complainant or the injured eye-witness.
(viii)That the occurrence is of dark night, therefore, identification of , the accused by their features was impossible.
(ix) That the accused remained in the police custody for many days, thus the chance of having been shown to Mushtaq and the other identifying P.Ws. Cannot be ruled out.
(x) That the recovery witnesses are police officials, therefore, their testimony is not of much legal worth.
(xi) That the recovery of blood from the spot is doubtful as it has been admitted by some of the witnesses that during those days it was raining.
14. To the contrary learned counsel for the complainant and for the State strongly defended the impugned judgment almost on the same reasons given therein. Counsel for the complainant further added that F.I.R. No,8, Police Station Saddar Mansehra dated 7-1-2005 shows that mobile phone of Muhammad Tufail was snatched and the same phone was used in the commission of the present crime for the assembling of the accused as it was recovered from Javed accused at the time of his arrest. He contended that no suggestion has been put to the Investigating Officer that because of any personal grudge or motivation he has falsely implicated the appellants in such a heinous crime and that delay in recording the confessional statements is not fatal to the prosecution case because of the extensive investigation and the accused being hardened criminals, therefore, could not be prepared to confess as early as possible and that the three eye- witnesses including the injured one have charged the appellants who have no previous blood feud or animosity with them.
15. While relying on the judgment of this Court in the case of "Faizur Rehman v. The State and others"
(PLD 2002 Peshawar 6) they contended that in the absence of barring provision in the A.T. Act, this Court has the powers to enhance the sentences of appellants awarded by the trial Court as according to them the crime was committed in a well planned, pre-arranged and concerted manner and conjointly in prosecution of common object, therefore, each one of the accused is liable for the act of the other and the trial Court has misconstrued the law applicable to the facts of the instant case, in this respect
16. True that the occurrence took place at night time but it has come on record that the head lights of the Suzuki Pick-up remained lit after it was stopped. Moreover, the accused had gone close to each one of the A victims including the injured P.W. For personal search to rob them of their valuables and cash. Mujahid Iqbal injured (P.W.13) was not in a position to make a statement as the bullet has penetrated into his head and he was referred to the Neuro-surgeon A.M.C. Abbottabad for further management and treatment by the medical officer of Civil Hospital Mansehra. He was examined on the 4th day of the occurrence when by then his condition has become stable and was able to make a statement. He has stated that at the time of occurrence he was a student of second year (F.A.) in Government Degree College, Mansehra but due to vacation in the college, to earn livelihood he was working as conductor with the Toyota Wagon of one Ghulam Hussain Shah while the deceased Muhammad Iqbal, his father, was driving the Suzuki Pick-up in question which he boarded on the evening of occurrence for going to his village Potha. He has further stated that the headlights and other lights of the Suzuki Pick-up were lit at the time of occurrence. He has given the detailed description of the crime weapons possessed by the appellants at the relevant time. He has assigned respective positions to all the appellants. He has deposed that his father said to one of the culprits "Sain, I had identified you and will see in the morning" and at that moment his father caught hold of one of the dacoits at which all the dacoits came to the same place and joined with the dacoit who was caught hold of by his father and during that the "Chaddar" with which the dacoits-appellants had muffled their faces slipped down and he identified all the appellants in the head lights and other lights of the Suzuki Pick-up out of whom one was Faqir Muhammad alias Sain next his son Javed, Imtiaz, Riaz, Siddique, Raj Muhammad and Tasawar (P.O.) and it was at that time Imtiaz fired at his father who was hit on his chest and when he ran towards his father Raj Muhammad accused fired at him, as a result he too was hit onhis head and got injured. In the meanwhile a Wagon came from Potha side and seeing the headlights of the same, the accused decamped from the spot. He was subjected to cross-examination but nothing favourable to the defence could be brought on record from that process. Similarly, Muhammad Mushtaq (P.W.14) has given almost the same statement as given by Mujahid Iqbal. He, P.Ws. Naseer, Manzoor and Muhammad Younas complainant belong to one and the same village. He denied the defence suggestion that he has not witnessed the occurrence. The other eye-witness Muhammad Rizwan who is also marginal witness to the recovery memos. Exh.P.C./2 and Exh.P.C./3 through which blood from spot was recovered by the B Investigating Officer. He is witness to recovery memo. Exh.P.C./4, Exh.P.C./5, Exh.P.C.6 and Exh.P.C.8 through which crime empties and a spent bullet was recovered from the spot. This witness was also subjected to lengthy cross-examination but his testimony could not be shaken by the defence in a manner to make it unbelievable. Complainant Muhammad Younas has appeared as P.W. (P.W.10) who has almost given the same story as given by the other three eye-witnesses. He too was subjected to cross-examination but no material discrepancy was brought in his statement by the defence.
17. Accused (1) Faqir Muhammad (2) Javed (3) Imtiaz and (4) Riaz were arrested on 9-2-2005. Their physical custody was obtained from the Illaqa Magistrate and all the four made clean breast confessions about their guilt which were recorded by P.W.22 Mr. Sher Afzal Khan Marwat, SCJ/J.MIC on 14-2-2005. Accused Raj Muhammad was arrested on 22-2-2005 who confessed his guilt before Miss Hina Gul J.MIC (P.W.11) on 26-2-2005. Appellant Siddique was arrested on 4-3-2005 who made confession before Mr. Ishfaq Taj (P.W.17) SCJ/J.MIC on 8-3-2005. Exh.P.B./2 is the sketch of pointation memo. Through which at the instance and pointation of appellant Imtiaz, the crime pistol of .30 bore bearing No,6999 with four live cartridges was discovered and taken into possession. Through pointation memo. Exh.P.B./3 accused-appellants Faqir Muhammad and Javed father both and son while in police custody brought out the crime Kalashnikov with three live rounds Which they had concealed in the cattle shed adjacent to their house while through memo.
Exh.P.B./4 one Kalashnikov with five rounds was recovered from accused Raj Muhammad alias Raja which he had concealed under his "chaddar" at the time of his arrest near Gujar Gali close to Mansehra to Phulra Road and vide memo. Exh.P.B./5 .30 bore crime pistol was recovered from Muhammad Siddique from his trouser fold with three rounds at the time of his arrest. The details of the recovery memos. In respect of the crime weapons either recovered at the instance/pointation of the accused-appellants or from their personal possession have been given in the earlier para. Of this judgment which have been supported not only by the Investigating Officer but also by Muhammad Sabir Khan (P.W.5) the marginal witness. Also the recovery memos. In respect of the production/recovery of looted money Exh.P.C./12, Exh.P.C./14 have been supported by Muhammad Sabir IHC (P.W.5) and Muhammad Akbar (P.W.20) respectively.
18. The medical evidence in respect of deceased Muhammad Iqbal and the injured P.W. Mujahid Iqbal confirms that both of them have sustained bullet injuries.
19. Now coming to the contentions of the defence counsel that blackening marks were present on the entry wound of the deceased while the distance was more than one pace, therefore, the conflict casts doubt on ocular account is an untenable one for the reason that keeping in view length of the barrel of the gun and the position at which it was held by the culprit could not be accurately judged by the P.W. In such a tense moment moreso it has been consistently held that site-plan is not a substantive piece of evidence and also for the reason that it has come in the evidence that when the fatal shot was fired, at the time all the appellants assembled at one point and were grappling with the deceased during which Imtiaz fired at him, therefore, accurate distance and that too at such time cannot be given. Moreover, no blackening was found on the shirt of the deceased. Thus the possibility that the medical officer has mistaken the clotted blood for blackening cannot be ruled out.
20. The objection that the identification parade was delayed and was carried out through Mushtaq (P.W.14), therefore, is to be rejected is also of no legal force because in this case many accused were involved whose physical custody was obtained for 4/5 days. The victims were passengers of different villages and the procurement of Mushtaq was to be made. Even otherwise the delay is not of that nature casting doubt on the credibility of the same when it was arranged inside the jail premises and the Jail Superintendent has also endorsed the same vide Exh.P.H./5. It was conducted by a Judicial Magistrate, namely, Mr. Asadullah Khan (P.W.18) according to the rules.
21. The objection that substantial part of investigation was carried out by A.S.-I. While under section 19 read with section 27 of the Anti-Terrorism Act, 1997 it is mandatory that investigation of such crime must be carried out by a team of investigation, therefore, the irregularity committed is incurable one and the entire trial stands vitiated is equally of no legal force. There is an order Exh.P.W.21/22 bearing No,19-4-1995 dated 4-3-2005 of the DSP Circle Investigation Mansehra through which an investigation team was constituted whereafter the challan was submitted to the trial Court after revisiting the investigation earlier carried out by an A.S.-I. The learned trial Judge has appropriately dealt with this issue by referring to the case-law laid down by the apex Court and has rightly held that albeit word "shall" has been used in section 19 of the Act ibid but for its violation consequences have not been provided, therefore, words "shall" and "may" as held consistently is always interchangeable unless it is further qualified by additional , conditions rendering the act done to be without lawful authority or illegal which is not the case in hand.
22. The learned counsel was asked to show as to what prejudice has been caused to the accused- appellants due to the investigations carried out by an A.S.q. At initial stage, his answer was in the negative. Thus when no prejudice has been caused to the accused-appellants due to the above omission then the irregularity committed is curable under section 537, Cr.P.C., the explanation on the foot of which provides as under:-- "Explanation.---In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
Neither a failure of justice has been qccasioned in the instant case nor a slightest prejudice has been caused to the appellants because of the fact that the initial investigation in the case was carried out by an A.S.-I. The offences under the Anti-Terrorism Act, 1997 all are heinous crimes affecting the society at large, creating terror in the mind of the residents of the locality/area and because such crimes are always committed in a well planned manners either by hardened criminals or well trained terrorists leaving behind little clue/traces for the investigating agency making it almost difficult to discover the culprits, therefore, the legislature in its wisdom has enacted section 19 of the Act ibid so that high quality investigations are carried out and crimes of this nature shall not go untraced. This appears to be the only purpose behind the scheme of the provision. Thus in our view the irregularity committed during course of investigation is curable under section 537 read with section 529, Cr. P. C .
23. The delay in recording confession shall not always be fatal to the prosecution because law has not laid down any period of limitation for this purpose albeit it is true that longer the delay in recording the confession lesser is its value is a principle which has been followed in some cases but the present case is not based entirely, on the confessional statements of the accused- appellants. Moreover, they appear to be hardened criminals of the first degree, therefore, the time consumed in recording their confessional statements could not be held to be unreasonable to create doubt about its credibility.
24. We do not find any objectionable improvements deliberately introduced by the eye-witnesses at the trial except the explanations which they have given. The testimony of injured P.W. Mujahid Iqbal is entirely in line and in conformity with his statement recorded under section 161, Cr.P.C. This objection, therefore, shall not prevail.
25. The plea that appellants Imtiaz and Siddique were shown 18 years of age at the time when the formal charge was framed, therefore, they were under 18 years at the time of occurrence, hence the special Court was having no jurisdiction to try them is not tenable for two reasons. Firstly that it was a rough assessm ent of the presiding officer of the trial Court and we are constrained to observe that the learned presiding officer of the trial Court has taken a little care and caution while recording their age even at the time of recording their statements under section 342, Cr.P.C. Where too the age is shown 18 years. The latter statement was recorded on 19-5-2005 while the formal charge was framed on 16-3-2005. Additionally no objection was taken before the trial Court to this effect nor it has been taken in the memo. Of appeal as was conceded by the learned counsel for the appellants, therefore, this plea shall not prevail at this later stage. Reliance in this regard may be placed on the principle laid down by the honourable Supreme Court in the case of "Muhammad Ajmal v. The State" (PLD 2003 SC page 1). The plea that the appellants were charged on the 4th day of the occurrence is equally of no force because Mujahid Iqbal, the injured P.W., was more familiar with the accused who has give elaborate statement under section 161, Cr.P.C. As he was in a precarious condition and when his state of health became stable then he was examined. In crimes of this nature sometimes it takes months to trace out the culprits and such circumstances shall be no ground for the acquittal of the accused. This will also answer the objection of the defence that the statement under section 161, Cr.P.C. Was recorded with a delay of 3 to 4 days.
26. The contention that it is a case of mistaken identity is entirely misplaced. As discussed earlier the appellants and the victims had come into contact with each other when the former were searching the victims for depriving them of their cash and valuables and that too when by then the head-lights of the Pick-up as well as the rear lights were lit which were sufficient for the identification of the accused, moreso, when the parties are locals and belong to the same area.
The last plea that witnesses to some of the recovery memos. Are police officials, therefore, it has no evidentiary value is equally liable to be discarded because the law of the land does not disqualify police officials to be competent witnesses of crime or of crime articles. Such arguments become forceful in those cases where the entire stock of witnesses consists of police officials and private witnesses although available are excluded deliberately and where there are allegations against the police witnesses of having personal motive or grudge for false implication of an accused person which is not the case in hand.
27. Keeping in view the above facts, the combined study of the entire evidence brought on record, i.e,, the ocular account given by disinterested witnesses, the recovery of crime weapons, crimes empties, the looted money from the accused-appellants and the crime spot, the confessional statements of the accused-appellants recorded by three different Judicial Magistrates of sufficient experience, the discoveries of some incriminating articles made at the instance of some of the appellants, the positive report of the arms expert who has opined that the crime empties were fired from the crime weapons so recovered, the confirmatory and supporting medical evidence, the identification of the I accused by the identifying witnesses in a duly held identification parade, the recovery of blood-stained earth from the crime spot and the positive report of the chemical examiner regarding the same vis-a-vis the blood stained clothes of the deceased and Mujahid Iqbal injured and keeping in view the mutually corroborative value of the confessional statements of all the appellants in view of Article 43 of the Qanun-e-Shahadat Order, 1984 we entertain no amount of doubt about the guilt of the accused-appellants for committing this tragic crime in a brutal manner. Thus through over-whelming evidence of reasonable credibility, the prosecution has been able in establishing the guilt of all the appellants beyond reasonable doubt. They were rightly held guilty by the learned trial Court for this felonious act.
28. The question of quantum of sentence/sentences awarded to the appellants is a matter of legal debate and serious consideration in view of the peculiar facts and circumstances of the case.
' According to the prosecution evidence particularly the ocular account and in view of the confessional statements of the appellants the established fact is that before committing the dacoity all the appellants assembled in the house of Siddique on a phone call made from mobile Phone No,0300-5619512 by Raj Muhammad appellant. He had instructed and directed the other appellants to come to the house of Siddique late in the evening with fire-arms. In the said house when they assembled, they devised/arranged a plan to commit the dacoity/robbing of the passengers of the Suzuki Pick-up who in their view were businessmen expecting them carrying handsome cash amount/valuables. Undeniably the unlawful assembly was formed for achieving common object i.e,, to commit dacoity/highway robbery. They were armed with deadly weapons which they were to use in prosecution of the common object while committing dacoity creating some nexus between the commission of dacoity and murder as well as grievous hurt so caused.
However, in law there is a very thin distinction between common intention and common object and this anomaly some times becomes a disturbing factor for the Court while making assessment of facts and evidence in a criminal case in this respect. Mere having/possessing knowledge that while committing a particular planned crime, the possibility of commission of another crime by one member of the same unlawful assembly would not be sufficient by itself to tag each one with common intention with regard to the crime committed in consequence of the first crime as it is always a question of fact and is to be determined on the established facts and not on mere bald presumption unless the law permits such a course. Therefore, awarding of capital sentence to all members of the same unlawful assembly at par with the principal accused without the established facts would not be in consonance with the principle of safe administration of justice. In the instant case although for the execution of planned object all the appellants had armed themselves with deadly weapons, the apparent object therefore, could be two fold as either these weapons were to be used as a show of force to make the passengers of the Pick-up to surrender their cash and valuable to the appellants or these weapons were carried by them for actually causing fatal consequences in the case of any resistance that might have been offered or in case of chance encounter. Both the possibilities, therefore, cannot be ruled out.
' The most decisive factor to determine the liability of all the appellants under the principle of common intention with respect to the murder of Muhammad Iqbal, the driver of the Pick-up caused by appellant. Imtiaz and the effective attempt made at the life of Mujahid Iqbal P.W. By Raj Muhammad appellant requires consideration as to whether all of them shared common intention in committing the murder and attempted murder as well or it is otherwise. True that all the appellants came to the crime spot together duly armed with a common object to commit the dacoity on gun point while the question of developing common intention of committing the murder and attempting murder is a begging one. It has come in the evidence and hints are available in the confessional statements of the appellants that Imtiaz appellant was secured by the deceased during grappling, thus the possibility that he (Imtiaz) killed the deceased to make good his escape cannot be ruled out. This act of appellant Imtiaz appears to be individual/independent one because rest of the appellants did not commit any overt act in this second transaction. Similarly, Raj Muhammad appellant attempted at the life of P.W. Mujahid Iqbal when the latter rushed towards his father for rescue and help while the rest of the four appellants remained idle. Neither they abetted the said offences nor rendered any visible assistance/contribution in the said course.
The provisions of section 396, P.P.C. If is invoked in strict sense would render liable all the appellants to the same major penalty. However, whenever a question of presumption arises regarding common intention of accused then in the interest of justice Court has to be more careful and cautious while awarding sentence to the one set and the other set of the accused and some distinction is to be drawn. In the instant case appellants Imtiaz and Raj Muhammad not only conjointly committed the crime of dacoity with the other four appellants but they also committed the murder of one and attempted at the life of the other individually. The constructive liability of the other four appellants if could not be brushed aside for the murder and attempted murder crime the same also cannot be lightly applied to them without the support of visible signs and evidence regarding their common intention and active participation in the said crimes. On the principle of common intention it is a consistent view that it may develop at the spur of moment and may also disappear there and then in the same manner.
' In the case of "Haji and 4 others v. The State" (1976 SCMR page 20) the honourable Supreme Court held as follows:-- "Penal Code (XLV of 1860) ----Ss.302/148/149---Murder case---Vicarious liability---Overt act, beyond accused's physical presence with relevant knowledge---Not essential for purpose of conviction for vicarious criminal liability."
' In this case the apex Court drew a distinction between two set of accused. Relevant para. Is reproduced:-- "This at once makes the case of Rehman Ali and Karam Ali, both of whom were allegedly armed with hatchets, distinguishable from those of the other three who were armed with guns. The outstanding fact operating in favour of these two appellants is, that no incised injury caused by a sharp-edged weapon was discovered on the bodies of the deceased. Even the two eye-witnesses did not assign any definite part to them. The hatchets were not recovered either. Therefore, their participation in the transaction becomes doubtful. We must however, enter a caveat. We must not be understood as laying down that for the purpose of their conviction for vicarious criminal liability, an overt act, beyond their physical presence with the relevant knowledge is essential."
' The above view expressed by the Honourable Supreme Court to some extent has left a scope open for the assessm ent of Court while determining constructive/vicarious liability of co-accused in a particular case for the purpose of drawing distinction between two set of accused of course subject to the rule of caution expressed by their lordship.
As discussed earlier, in the present case except Imtiaz who committed murder of Muhammad Iqbal and Raj Muhammad who caused fire-arm injury to Mujahid Iqbal P.W. The rest of the appellants have not been attributed any role to hold them of sharing common intention with their principal accused on the principle of safe administration of justice, although they could be tagged with the requisite knowledge but not with common intention, moreso, when Imtiaz was in the grip of the deceased at the fateful time who wanted to rescue himself and for that he killed him and when Mujahid Iqbal rushed towards the scene he was fired upon by Raj Muhammad accuse to ward off the counter attack from his side.
29. As all the appellants are liable for the crime under section 396, P.P.C. For committing the dacoity in the course of which murder and offence of attempted murder was committed therefore, section 149, P.P.C. Would become redundant/superfluous.
' Although it is not a rule of law to award lesser sentence to the second set of the accused on the principle of benefit of doubt but neither there is a bar in law nor principle of justice denude the Court from extending the same in rare cases like the present one. However, we are constrained to disapprove the lenient treatment extended in the matter of sentence by the learned trial Court to the four appellants namely (1) Muhammad Siddique, (2) Muhammad Riaz, (3) Muhammad Javed and (4) Faqir Muhammad which are unsustainable in law because in their case section 396 P.P.C.
Is fully attracted which provides death sentence, life imprisonment and imprisonment up to 10 years which shall not be less four years. They conjointly planned and prosecuted the common object, the primary one, i.e,, the commission of the dacoity along with their co-appellants, namely Imtiaz and Raj Muhammad and the absconding accused Tasawar which has also been made schedule offence by the provision of sections 6 and 7 of the. Anti-Terrorism Act, 1997 which further re-enforces the above view.
' Keeping in view of facts, circumstances and evidence on record with reference to the role played by accused-appellants (1) Muhammad Siddique (2) Muhammad Riaz, (3) Muhammad Javed (4)
Faqir Muhammad we convict them under section 396, P.P.C. And the sentences awarded to them of 7 years' R.I. Each by the learned trial Court are enhanced to life imprisonment for each one with a fine of Rs,50,000 each or in default of payment of fine to suffer two years S.I. The sentence of two years R.I. Awarded to them under section 148, P.P.C. Read with sections 6 and 7 of the Anti-Terrorism Act, 1997 are maintained. The rest of the findings of the trial Court directing the substantive sentences to run concurrently are maintained but keeping in view the awful and gruesome crime committed by the appellants which undoubtedly has created high degree of terror in the area and in the mind of the people of the locality in particular, they are held not entitled to the benefit of section 382-B, Cr.P.C. As given by the trial Court which is accordingly withdrawn.
30. Now dealing with the conviction and sentence awarded to appellant Imtiaz we are in full agreement with the trial Court as prosecution has proved his guilt of committing dacoity conjointly with the co-appellants and in the course of that he committed the murder of Muhammad Iqbal as well. The death sentence thus awarded to him by the trial Court along with the fine/compensation amount is maintained/ confirmed. The Cr. M.R. No,4 of 2005 sent by the trial Court is answered in the affirmative.
' Similarly, appellant Raj Muhammad has been rightly convicted and sentenced to life imprisonment with the fine/compensation amount by the trial Court for crime under section 396 P.P.C. And it is also maintained.
31. The trial Court has inadvertently omitted to convict and sentence Raj Muhammad appellant for crime under section 324, P.P.C. For effectively attempting at the life of Mujahid Iqbal P.W. By causing him fire-arm injury which does not amount to his acquittal on the said charge, therefore, taking notice of such glaring omission we convict him under section 324, P.P.C. And sentence him to 5 years' R.I. And shall also to pay Arsh amounting to Rs,70,000 to P.W. Mujahid Iqbal in accordance with the relevant provisions contained in the P.P.C. Which shall be paid in lump sum or in default he is to be kept in confinement in civil prison.