; BASHIR A MUJAHID, J.---Appellants Muhammad Ashfaque alias Shaqu son of Muhammad Ramzan, Muhammad Pervaiz son of Muhammad Anwar and Ijaz Ahmad son of Muhammad Nawaz have challenged judgment, dated 29-3-2000 passed by the learned Additional Session Judge, Sialkot whereby they after having been tried under sections 302/ 392/34, P.P.C. Were convicted under section 302/34, P.P.C. For murder of Fayyaz Ahmad and sentenced as under:--
(1) (i) Muhammad Ashfaque sentenced to death under section 302/34, P.P.C. With a compensation of Rs,50,000 to be paid to the legal heirs of the deceased, in default thereof to undergo 6 months'
R.I.
(2) Muhammad Pervaiz and Ijaz Ahmad sentenced to imprisonment for life under section 302, P.P.C.
With a fine of Rs,50,000 each in default thereof to undergo R.I. For six months each.
' All the three accused were further sentenced to 14 years' R.I. Under section 392, P.P.C. With a fine of Rs,25,000 each, in default thereof to undergo R.I. For one year each with benefit of section 382-B, Cr.P.C.
2. The brief facts of the prosecution case are that Shahbaz Ahmad, P.W.6 got F.I.R. No,163/96 (Exh.PF/1) registered at Police Station Qila Kallarwala on the basis of his statement Exh.PF recorded by Aadil Hussain S.-L, P.W.15 at Pakka Road, Sokinwind Road within area of Jamke Dhendsa at 8-15 p.m. Alleging therein that at about 6 p.m. He along with his brother Fayyaz Ahmad (deceased), Nazar Hussain son of Muhammad Shafi, Tahir Farooq son of Barkat Ali and Naeem Ullah son of Hafeez Ullah were returning from Kalaswala on Car No,3869/LOB after purchase of household articles. When at about 7-30 p.m. They reached on metalled road Jamkay Dhendsa, three unknown persons two of them of middle structure and one of them was tall came in front of the car. Tall man was armed with rifle 8MM, second man was armed with rifle and third person was armed with .12- bore gun and they stopped the car. The accused alightened them and raised alarm to raise their hands and they searched the complainant and the P.Ws. -Tall man snatched Rs,1600 along with photocopy of Identity Card of complainant, from Nazar Hussain Rs,500 along with two finger rings valuing Rs,2500 and Identity Card of Tahir Farooq. When they searched Fayyaz Ahmad, he resisted upon which third person armed with .12-bore gun fired at him on right side of his face, neck, shoulder and chest who fell on the ground and succumbed to the injuries. The assailants forced the complainant and P. Ws. To run back and when they were running they were fired at by the assailants. Thereafter, the accused decamped in the car. It was further stated that the assailants could be identified if they are brought before the P.Ws.
3. Adil Hussain S.-I. P.W.15 after receiving the information of the occurrence arrived at the place of occurrence, recorded the statement Exh.PF and sent the same to the police station for registration of formal F.I.R. Exh.PF/1. He took into possession dead body of Fayyaz Ahmad, prepared inquest report through memo Exh.PN and injury statement Exh.P0. Thereafter, he handed over the dead body to Muhammad Riaz and Muhammad Nawaz, HCs for postmortem examination. He also collected blood-stained earth from the spot through memo Exh.PA. Then he took into possession Motorcycle No,1972/LHC from the fields of Nasrullah son of Muhammad Sadiq through memo Exh.PB. On the next day he took into possession car bearing registration No,3869/LOB on the road- side from Nia Manga Village through memo Exh.PC. He also took into possession last-worn clothes of the deceased produced before him through memo Exh.PR. Thereafter investigation of the case was taken over by Muhammad Anwar S.-I., P.W.16 who on 23-12-1996 arrested the accused/appellants and were remanded to judicial custody for their identification parade. On 5-9- 1997 he moved application to the Illaqa Magistrate for holding of test of identification parade in jail.
Thereafter, identification parade was held in District Jail, Sialkot on 12-1-1997 under the supervision of Mr. Muhammad Aslam Qasmi, Magistrate, P.W.11 through report Exh.PD. The investigation was also conducted by Muhammad Sarwar S.-I, P.W.8 who obtained physical remand of the accused after identification and Muhammad Ishfaq while in police custody led to the recovery of gun .12- bore P.10 which was taken into possession through memo. Exh.PH. On 24-2-1997 Muhammad Ishfaq while in police custody led to the recovery of one finger ring P.1/2, one Photostat copy of Identity Card of Shahbaz Ahmad P.8 which were taken into possession through memo. Exh.PJ. On the same day, Muhammad Pervaiz while in police custody led to the recovery of one finger ring P.1/1 and one vault P2 bearing Identity Card of Tahir Farooq which were taken into possession through memo Exh.P.K. On 5-3-1997 Tahir Farooq P.W. Identified two golden finger rings P1/1-2 and vault P2 belonging to him.
4. After completion of investigation challan against the accused was submitted. They denied the allegations and claimed trial.
5. The prosecution examined as many as 16 witnesses to prove the guilt of the accused.
6. The medical evidence was furnished by Dr. Wali Muhammad, P.W.14 who on 4-12-1996 conducted the postmortem examination on the dead body of Fayyaz Ahmad and found the following injuries on his person:--
(1) Small rounded 1/4 x 1/4 c.m. Wounds many in number on right side, of face and margins were inverted and blackened. (entry wound).
(2) Many small wounds on right side of neck 1/4 x 1/4 c.m. Margins were inverted and blackened (entry wound).
(3) Many small wounds of entry of pellets on front of chest 1/4 x 1/4 c.m. Margins were inverted and blackened (entry wound).
' In the opinion of the doctor the death occurred due to fire-arm (.12-bore cartridges).
7. The ocular account was furnished by Shahbaz Ahmad, P.W.6 who was complainant of the case.
He supported the version of the F.I.R. And stated that he had identified the accused in presence of the Magistrate in the identification parade conducted in District Jail, Sialkot. According to him Muhammad Ishfaque fired at Fayyaz Ahmad deceased and Ijaz Ahmad accused had made search of the P.Ws. While Muhammad Pervaiz, accused and others have also fired at the P.Ws. Nazir Hussain, P.W.4 also supported the prosecution story as narrated by the complainant. He also identified the accused during the identification parade conducted in District Jail, Sialkot under the supervision of Magistrate. He was uncle of Shahbaz Ahmad, P.W.6 and Fayyaz deceased. While according to him Tahir Farooq and Naeem were his friends and Car No,LOB/3869 was obtained from Muhammad Saleem friend of Shahbaz Ahmad, complainant. Tahir Farooq, P.W.5 was also riding the same car along with the complainant and he also supported the prosecution story as narrated by the complainant and Tahir Farooq, P.W.4. He too identified the accused during the identification parade. Apart from the above evidence, Ijaz Ahmad, P.W.1 identified the dead body of Fayyaz Ahmad at the time of post-mortem examination. Afzaal son of Khadim Hussain, P.W.2 attested recovery memos. Exh. PA whereby Investigating Officer took into possession blood-stained earth from the spot, ,Exh.PB whereby motorcycle Yamaha No,1972/LHJ was taken into possession by the Investigating Officer Muhammad Bashir, P.W.3 was a shopkeeper attested the recovery memo Exh.PC whereby Car bearing Registration No,LOB/3869 wherein P.Ws. And the deceased were travelling was taken into possession by the police. Muhammad Riaz A.S.-I. P.W.7 escorted the dead body of Muhammad Fayyaz, deceased for postmortem examination and attested the recovery memo. Exh.PG whereby he produced last-worn clothes of the deceased before the Investigating Officer Muhammad Sarwar S.-I, P.W.8 arrested the accused, effected the recoveries of weapons of offence and other articles and after completing the investigation submitted the challan.
Muhammad Jami, P.W.9 recorded the formal F.I.R. Exh.PF/1 on the basis of complaint Exh.PF. Nazar Muhammad, P.W.10 attested the recovery memos Exh.PJ, Exh.PK and Exh.PH whereby the accused led to the recovery of looted articles. Muhammad Aslam Qasmi, AC P.W.11 supervised the identification parade conducted in the instant case in District Jail, Sialkot and in his presence Nazir Hussain, P.W.4 Tahir Farooq, P.W.5 and Shahbaz Ahmad, P.W.6 identified the accused. Masood Ahmad Bhatti Draftsman, P.W.12 prepared the site plan of the place of occurrence. Muhammad Naeem, FC P.W. 13 deposited the sealed in the office of Chemical Examiner and Forensic Science Laboratory. Adil Hussain, P.W.15 and Muhammad Anwar S.-I., P.W.16 investigated the case as mentioned above.
8. The statements of the accused/ appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. In reply to question as to why the case against them and the P.Ws.
Deposed against them, they stated as under:-- ' "This is a false case. The witnesses also deposed falsely against them."
9. The trial culminated into conviction and sentence of the appellants as mentioned above. Hence this appeal. The trial Court has sent up Murder Reference No,228 of 2000 for confirmation of death sentence of Muhammad Ishfaque. Both the matters are being decided by this single judgment.
10. The main argument of learned counsel for the appellants is that the accused were not identified by the prosecution witnesses during the identification parade by the role played by each of the accused and has placed reliance on 1995 SCM R 127 and 1988 SCM R 557 in this behalf. It is further argued that arrest of the appellants was shown separately but on the same day and they were involved in Different cases subsequently and identification of the appellants before the trial Court is of no use to the prosecution as they were tutored. It is further argued that the appellants were shown to the P.Ws. Before the identification parade was held and they also took this objection before the Magistrate; that their arrest was shown on 23-12-1996 while the identification parade was held on 12-1-1997 with an inordinate delay and during this period the witnesses had seen the accused, therefore, identification parade was not conducted in accordance with law and cannot be relied upon to maintain the conviction of the appellants. It is further argued that the occurrence took place during the night and the particulars and features of the accused were not given so that they could be identified by the P.Ws. Therefore, case of the prosecution is doubtful and the appellants are entitled for acquittal.
11. Learned counsel for the State has opposed the appeal and supported the impugned judgment.
12. We have heard the learned counsel for the parties and examined the record.
13. Admittedly, the accused were not nominated in the F.I.R. However, the complainant had stated in the F.I.R. That two of the accused were of normal height/structure and one was taller and the accused can be identified if they are brought before the P.Ws. The appellants were arrested by Muhammad Anwar S.-I, P.W.16 on 23-12-1996 and were lodged in judicial lock-up where identification parade was arranged and they were identified by complainant Shahbaz Ahmad, P.W.6, Nazir Hussain, P.W.4 and Tahir Farooq, P.W.S. It is correct that they were not identified by the role played by each of accused in the occurrence but the identification before the court is as good as during the identification parade and can be relied upon. The complainant or the P.Ws. Have no previous enmity for false implication of the appellants by letting off the real culprits. The case of the prosecution has also been further established by the recovery of articles from the accused. The P.Ws. Stood to the test of cross-examination despite the fact that they were cross-examined at length by the competent defence lawyers, therefore, we find that the prosecution case has been proved against the appellants beyond shadow of doubt and do not find any ground to interfere in the conviction recorded against them.
14. As far as sentence is concerned, Muhammad Ishaque who has been awarded death sentence, was not identified by the P.Ws. During the identification parade by stating that he was the person who fired at the deceased. Although they stated so before the trial Court that he was armed with double barrel gun yet the gun recovered from his possession was not found in working condition according to Forensic Science Laboratory Exh.PY which shows that the allegations levelled by the P.Ws. Against him have not been corroborated from any other independent source i.e, recovery of weapon of offence.
' Apart from recovery of gun his case is at par with his co-accused who have been awarded life imprisonment and the prosecution has not filed any revision petition for enhancement of sentence of the co-accused, therefore, while maintaining the conviction we reduce the sentence of Muhammad Ishfaque from death to imprisonment for life which will meet the ends of justice. The sentence of other appellants is maintained. The punishment of C fine and sentence in lieu thereof is maintained. However, we withhold benefit of section 382-B, Cr.P.C. As the accused/ appellants committed a heinous offence of high-way robbery and murdered of an innocent person. The offence is rising in the society.
15. The appeal is dismissed with the above modification in the sentence of Muhammad Ishfaque.
16. Murder Reference No,228 of 2000 is answered in the Negative.