' CH. EJAZ YOUSAF, J.---This criminal appeal with leave of the Court is directed against the judgment dated 23rd April, 2002, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the appeal filed by the appellants against their convictions, and sentences recorded by the Judge Special, Anti-Terrorism Court No,1 Rawalpindi, was dismissed.
2. Briefly stated, facts of the case are that on 13-3-2000 written report Exh.PA. Was lodged by one Abdur Rehman, with Police Station Chua Saidan Shah, wherein it was alleged that the complainant was a Security Guard of the Brinks Company. On the said date, at about 1-00 p.m. He along with Muhammad Aslam and Muhammad Afzal, Security Guard, after delivering cash to the National Bank, were returning to Chakwal in Suzuki Van bearing Registration No,3768/CK, driven by Muhammad Latif, P.W.9. On reaching Basharat Road, at a distance of 1-1/2 Kms. From Sarai More, they found a white colour Car bearing Registration No,8838/LHV, parked in front of them. No sooner, they stopped the vehicle, then four persons, who were standing near the car duly armed with different weapons, started firing at the van indiscriminately. The fire was returned by the Guards, however, Abdur Rehman, complainant, Muhammad Latif, Driver Muhammad Afzal and Muhammad Aslam sustained injures. After making firing the accused persons fled away in the said car.
According to the complainant, the accused persons were aged between 22 to 30 years and they were Punjabi Speaking. It was claimed by him as well as Abdul Latif, driver, that on seeing the culprits again, they would be able to identify them. On the basis of the complaint formal F.I.R.
Bearing No,32 was registered at the said police station under sections 396/400, P.P.C. And investigation was carried out in pursuance thereof. It would be pertinent to mention here that supplementary statement of the complainant was also recorded on the same day wherein, it was Under section 396/34, P . P. C .Death sentence each on two counts with Fine of Rs.one lac each on two counts and in default of payment of fine to undergo R.I. For one year each.
Under section 7(C) ATALife imprisonment each to the extent of both injured separately and fine of Rs.one Lac each to the extent of both injured separately and in default of payment of fine to undergo further R.I. For one year' each.mentioned by him that instead of four, six persons had participated in the crime. On completion of investigation the accused persons were challaned to the Court for trial, charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial.
3. At the trial, the prosecution, in order to prove the charge and substantiate the allegation levelled against the accused persons, produced 24 witnesses in all, whereafter the accused persons were examined under section 342, Cr.P.C. In their above statements, all the accused persons denied the allegations and pleaded that they were innocent. They failed to appear themselves as their own witnesses in terms of section 340 (2), Cr.P.C., however, produced one Mst. Nasreen as DW-1, besides producing attested copy of report/challan in case No,167/2000 as Exh.D.B., registered under sections 395/109, P.P.C. On 28-4-2000. On conclusion of the trial, the learned trial Court convicted the, appellant and sentenced them to the punishments as under:--- ' Benefit of section 382-B, Cr.P.C. Was however, extended to all the accused persons.
4. It would be pertinent to mention here that Muhammad Naeem, accused, was declared proclaimed offender at the very outset, while Muhammad Asif, accused, was arrested but absconded during trial, hence, he too, was subsequently, declared as proclaimed offender.
5. Benig aggrieved, the convicts/appellants preferred Criminal Appeal No,138/T of 2002 in the High Court, which was dismissed, vide the impugned judgment and Murder Reference No,30-T of 2002, sent by the trial Court for confirmation of the death sentences, was answered in the affirmative, hence this appeal.
6. It may be noted here that in the instant case, leave to appeal was granted by this Court, vide order dated 5-4-2005, in the following terms:--- "We have heard learned counsel for the petitioners at some length. He contends that the petitioners have not been charged in the F.I.R. And the evidence available against them is that of identification parade held after about a months of their arrest. He further states that though there is positive report of the Forensic Science Laboratory regarding the empties recovered from the spot and the weapons recovered from the accused after their arrest but there is sufficient delay of the examination in the Laboratory of the aforesaid recoveries.
(2) The evidence required re-appraisal, thereof, leave to appeal is accordingly granted."
7. It is contended by the learned counsel for the appellants that neither the appellants were named in the F.I.R. Nor their description by appearance was given, hence, in absence thereof the evidentiary value of the test identification parade was greatly marred; that the delay in dispatching the empties as well as the allegedly recovered weapons, to the laboratory, has rendered the report as doubtful; that since the empties recovered from the place of occurrence did not match with the weapons of offence recovered from the possession of two appellants, namely, Ahmad Khan alias Malangi and Muhammad Asghar, therefore, the case to their extent at least, was not of capital punishment.
8. Sardar Muhammad Siddique Khan, learned Deputy Prosecutor-General, Punjab, on the other hand, while controverting the contentions raised by the learned counsel for the appellants, has submitted that since guilt of the accused appellants was successfully brought home, at the trial, by the prosecution through independent and reliable evidence, therefore, the impugned judgment was unexceptionable. He has urged; that the eyewitnesses were independent and natural. They had neither enmity nor motive to falsely implicate the appellants; that F.I.R. Was promptly lodged wherein specific roles were attributed to the appellants; that it was a daylight occurrence wherein all the culprits, who had not muffled their faces at the relevant time, were identified by the eyewitnesses; that the test identification parade was carried out soon after arrest of the appellants, wherein they were correctly picked up by the eyewitnesses hence, it was rightly believed; FSL report confirmed that the empties recovered from the place of occurrence duly matched with the weapons recovered from the possession of the accused persons, hence they were rightly convicted for the offence. He, however, candidly conceded that the emptied recovered from the place of occurrence did not match with the weapons recovered from the possession of appellants Ahmad Khan alias Malangi and Muhammad Asghar.
9. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, with their assistance, minutely.
10. The prosecution case rests on the ocular evidence, account whereof, at the trial, was furnished by P.W.8 Abdur Rehman, the complainant, P.W.9 Muhammad Latif, driver of the Van, P.W.10 Izhar Hussain Shah, and P.W.11 Ghulam Ali, the evidence of identification, the evidence of recovery of empties as well as the crime weapons, the chemical examiner's report and circumstantial evidence. In the instant case, incident took place at about 1-00 p.m. whereas the report was lodged at 3-45 p.m. With the police station situated at a distance of 3 Kms. From the place of occurrence, hence there was hardly any delay. In the written report firing was attributed to all the four appellants. The accused persons, soon after their arrest, were put to identification parade which was supervised by Mr. G.M. Khan, Magistrate, P.W.23 wherein they all were correctly picked up by the eyewitnesses. Though test identification parade was conducted after a month of the occurrence, yet, since, it was a broad day light occurrence, and all the witnesses had sufficient time and opportunity to see the accused persons, therefore, the instant does not appear to be a case of mistaken identity. It would be pertinent to mention here that statement of the eye- witnesses are not only corroboratory inter se but find sufficient support from the other evidence i.e, the medical evidence, recovery of crime empties as well as bloodstained earth, etc. From the place of occurrence. So far as the testimony of eye-witnesses is concerned we do not find any discrepancy in their statements rendering them untrustworthy of belief. They stood the test of cross-examination and gave a consistent and coherent account of the occurrence. The fact that two of the eye-witnesses were seriously injured in the occurrence further strengthens the prosecution case by leading to the conclusion that the said witnesses were present at the place of occurrence. Their evidence was therefore, rightly believed by both the Courts below.
11. As regards the contention that since the empties as well as the crime weapons were sent to the Forensic Science Laboratory after the lapse of considerable time, therefore, evidentiary value of the report was greatly marred, it may be mentioned here that as per report, the empties taken from the place of occurrence were received in the office of Forensic Science Laboratory on 10-4-2000 much prior to the arrest of the accused persons whereas, the weapons of offence were recovered on 1-6-2000 and despatched to the Laboratory on 5-7-2000, separately, hence genuineness of the report could not have been doubted. It would be worthwhile to mention here that a.12 bore repeater mark "G" was recovered from the possession of the appellant Muhammad Yousaf, whereas .7 mm rifle mark "R-1" was recovered from the possession of appellant Muhammad Riaz and as per Forensic Science Laboratory report i.e, Exh.P.II, the crime empties marked "C-1" to "C-4" were found to had been fired from the shotgun mark "G" recovered from the possession of the appellant Muhammad Yousaf; whereas the crime empties mark "C-5" to "C-6" were found to had been fired from the rifle mark "R-1"recovered from the possession of the appellant Muhammad Riaz, thus it leaves no room for doubt that both Muhammad Yousaf and Muhammad Riaz appellants were responsible for murder of the deceased persons. They were, therefore, rightly convicted for the offence.
12. It may, however, be mentioned here, that as per recovery memo. Exh.P.R. a .32 bore revolver was recovered from the possession of accused Ahmad Khan alias Malangi, whereas a .30 bore pistol was recovered from the possession of accused Muhammad Asghar. Since as per Forensic Science Laboratory report, no empty matched with either of the weapons recovered, therefore, we see force in the contention raised by the learned counsel for the appellants that case of these two appellants, namely, Ahmad Khan alias Malangi and Muhammad Asghar, was not of capital punishment.
13. Upshot of the above discussion is that this appeal is partly allowed. Convictions and sentences recorded against appellants, namely, Muhammad Yousaf son of Anar Khan and Muhammad Riaz son of Muhammad Nawaz, by the trial Court are maintained, however, while maintaining their convictions, the sentences of death, inflicted on appellants namely, Ahmad Khan alias Malangi son of Ghulam Ali and Muhammad Asghar son of Muhammad Aslam, under section 496, P.P.C, are altered to that of life imprisonments. Both the sentences recorded against appellants, Ahmad Khan alias Malangi and Muhammad Asghar, under section 396, P.P.C. And section 7(c), ATA, shall run, concurrently. Other sentences awarded by the trial Court with benefit of section 382-B, Cr.P.C. Shall remain intact.
' These are the reasons for our short order of even date announced in open Court.