' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,791 of 1999 filed by Muhammad Zahid, who along with Ashfaq faced trial in case F.I.R. No,73, registered at Police Station Shad Bagh, Lahore, on 17-2-1997, for offences under sections 458/392/412/302/34, P.P.C., before learned Additional Sessions Judge, Lahore, who after conclusion of trial, vide his judgment, dated 14-7-1999 convicted the appellant under section 302(b), P.P.C. And sentenced him to death, with compensation of Rs,50,000. While Ashfaq was convicted under section 302(c), P.P.C. And sentenced to ten years' R.I. With fine amounting to Rs,10,000 or in default two years' R.I. With benefit of section 382-B, Cr.P.C. The learned trial Court also convicted and sentenced both the accused as under:--
(i) Under section 458, P.P.C. Five years' R.I. With fine of Rs,5,000 or in default six months' S.I. Each.
(ii) Under section 392, P.P.C. Six years' R.I. With fine of Rs,10,000 or in default one year's S.I. Each.
(iii) Under section 412, P.P.C. Five years' R.I. With fine of Rs,5,000 or in default six months' S.I. Each. It is pertinent to mention here that Ashfaq co-accused has not filed any appeal challenging his conviction and sentence.
2. Murder Reference No,356 of 1999 for confirmation or otherwise of death sentence of appellant shall also be decided through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.P.A. Are that on the night in between 16/17-12-1997 at about 1-00 a.m. The complainant woke up after hearing some noise and saw that two young boys armed with mousers were searching in the safe. They asked the complainant who was present in the down portion. The complainant replied that his son and daughter-in-law were sleeping in their room. The accused brought the complainant towards down portion on pistol point and got the door opened of the bedroom of his son. His daughter-in-law Mst. Pervin Akhtar opened the door. Both the accused while taking the complainant with them entered the room and removed gold ornaments from the person of Mst. Pervin Akhtar. They also removed Rs,20,000 from the safe. Thereafter, one of the accused, who was clean shaved, fired at Mst. Pervin Akhtar, which landed on her chest. She died at the spot. It is stated in the F.I.R. That the complainant and his son Ashfaq could identify the accused persons, if brought in front of them.
4. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Rafiq, S.-I./S.H.O./P.W.14, who conducted thorough investigation, arrested the accused and after effecting recovery of weapons used during the occurrence sent them to face trial.
5. At the trial, the prosecution in order to prove its case produced 14 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P.W., Forensic Science Laboratory Exh.P.X. And that of Serologist Exh.P.Y. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their-innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. However, Abaid Ullah, A.S.-I., Manzoor Ahmad and Muhammad Hussain Iqbal appeared as D.Ws.1, 2 and 3.. The appellant after tendering in defence newspaper Daily Jang, dated 18-2-1997 Mark "A" closed his defence. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.
6. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that the whole case of the prosecution rests on the identification, which could not be established during trial; that no specific mark of identification was mentioned in the F.I.R.; that as far as the identification parade is concerned it was conducted after abnormal delay of quarter to two months; that no reasons have been recorded as to why the identification parade was conducted after abnormal delay; that both the accused were made to sit together during identification parade; that only 12 dummies were associated with the two accused as against the High Court Rules, which require that each accused should be identified separately and at least nine to ten dummies should be associated; that Muhammad Iqbal P.W.1 did not identify the appellant while P.W.2 did not specify the role of the accused during identification parade, which was necessary; he relies upon the cases of Ghulam Rasool v. The State 1988 SCM R 557 and Khadim Hussain v. The State 1985 SCM R 721; that the recovery of pistol was not worthy of any credence as the empty was kept at Thana till the arrest of the accused and recovery of pistol and thereafter instead of sending both empty and pistol together, the empty was sent earlier and subsequently pistol was sent; that as far as the recovery of stolen property is concerned P.W.1 stated that he could not produce the receipts while P.W.2 produced receipts Exh.P.C. And Exh.P.C./1 before the learned trial Court; that the recovery of currency notes was useless and doubtful; learned counsel has pointed out that all the recovery memos. Exh.P.H. (pistol), Exh.P.J. (two ear- rings) and Exh.P.K. (pistol) signed by Muhammad Hussain, constable, had different signatures and do not tally with one and another; and that the same case is of the S.H.O.; further pointed out that Exh.P.H. And Exh.P.J. Contained only initial of the S.H.O., while in Exh.P.H. He has simply given his name; that signature of Rehmat Ali, S.-I., on the memos. Also do not tally; that investigation was conducted partially and Investigating Officer had made padding in order to strengthen the prosecution case; that case of the prosecution is not supported by incriminating evidence like recovery and the case of the prosecution is not free from doubt; that confession before the Police being inadmissible could neither be read in evidence nor brought on record of the case; and that in any case it was not a case of capital sentence as it could not be said with certainty that which of the accused caused fire, as according to P. Ws. Both the accused were clean shaved and had pistols.
8. On the other hand, the learned counsel for the complainant submits that the witnesses were natural being inmates of the house; that they had no enmity with the appellant so as to involve him in a false case; that statements of the eye-witnesses are supported by medical evidence and corroborated by the recovery evidence of pistol and the fact that the empty recovered from the spot tallied with the weapon; and that the ocular account is also corroborated by the factum of recovery of stolen property.
9. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. The occurrence took place at about 1-00 a.m. Inside the house of the complainant Muhammad Iqbal, who lived there along with his son Ashfaq Ahmad P.W.2 and his daughter-in-law Mst. Pervin Akhtar (deceased). The motive behind the occurrence was robbery.
The presence of the P.Ws. Being inmates of the house cannot be challenged or denied. The matter was reported to the police within almost an hour of the occurrence. There is nothing on record that the P.Ws. Had any previous or grudge against the accused. P.W.1 Muhammad Iqbal, who was about 69 years of age, has given a very convincing straightforward account of the whole occurrence.
Similarly, Muhammad Ashfaq P.W.2, in whose room Mst. Pervin Akhtar was murdered and robbery was committed, has also given a detailed account of the occurrence. Both the P.Ws. Have corroborated each other on almost all the material points. The witnesses were subjected to very lengthy cross-examination but they stood the acid test. During cross-examination the P. W.1 explained that he used to sleep with the lights on and he could not raise hue and cry because the accused had fire-arms in their hands. It is also available on record that it was Zahid appellant, who had forced Muhammad Iqbal P.W.1 inside the room of his son Muhammad Ashfaq P.W.2; and it was Zahid who had directed Mst. Pervin to take off her ear-rings and on refusal of Mst. Pervin to hand over the keys, the accused Zahid fired at her, which proved fatal. Both the witnesses rightly explained that Mst. Pervin Akhtar was not taken to the hospital as she died at the spot and straightforward went to police station to inform about the occurrence. During cross-examination P.W.2 Ashfaq Ahmad explained that his wife did not try to peep from the hole of the door, as there was no whole in it; and that voice of his father was not normal and his father appeared to be scared. Obviously it was for that reason that room was opened. It is also in evidence that wife of P.W.2 firstly switched on the lights of the room. It was also brought on record during cross- examination that the accused took 20 minutes to complete the occurrence. It means that the witnesses had ample time to see the accused closely and the accused left lasting impression on the P.Ws., which remained in the memory of the P.Ws. It was not an incident which could easily be forgotten.
10. The learned counsel for the appellant in the circumstances has rightly laid much emphasis on the identification test of the accused. According to the learned counsel, the identification test was held after more than two months of the occurrence and quarter to two months after arrest of Zahid appellant and it was not possible for the P.Ws. To identity the accused after such a longtime. In order to strengthen his arguments he has submitted that Muhammad Iqbal did not identify Muhammad Zahid appellant during identification test. The fact remains that the accused spent considerable time in the house of the P.Ws., lights were on and the P.Ws. Had close look at the accused. P.W.2 Ashfaq Ahmad correctly identified the accused. As far as Muhammad Iqbal is C concerned, he specifically pointed to Muhammad Zahid as accused, who had fired at daughter-in- law, in his statement recorded before the learned trial Court. The witness did not try to tell lie before the learned trial Court and stated that he could identify only one of the accused during identification test. On Court's inquiry he rightly pointed towards Ashfaq as accused. Muhammad Iqbal P.W. Is an old man and it was possible that at the time of identification test he could not isolate the accused from rest of the participants due to fear that he might not involve innocent person but that also reflects on the fact that the accused were not previously shown to the P.Ws. As claimed by the accused. In any case Muhammad Ashfaq rightly identified the accused during identification test. Both the witnesses stated about the different roles played by the accused during occurrence before the learned trial Court. As noted above P.W. Iqbal also stated in detail about the roles played by the accused. Muhammad Iqbal P.W. In reply to question during cross-examination stated that "presently I know that Zahid accused's house is situated in the same locality although it is 3-4 streets away". He explained that prior to the occurrence Zahid was not known to him. He further stated that he met S.H.O. Only on the date of occurrence and did not go the police station thereafter. In reply to another question the witness answered that prior to identification parade he had once met the accused persons, at the time of occurrence. Similarly P.W.2 stated that it was correct that the accused resided in his Mohallah but that fact came to his knowledge after the occurrence. The witness added that he saw the accused for the first time when he had entered in the house in order to commit dacoity. Both the witnesses are consistent in their account and there is not even allegation of enmity against P.Ws. So there was no need for the P.Ws. To implicate the accused in a false case. After taking different defences like that nephew of the deceased had murdered her due to some dispute and that one Chand was the real culprit, the accused forgot to say a word about the above noted defences in their statements recorded under section 342, Cr.P.C.
10. The medical evidence supports the prosecution story about the seat of injury and the cause of death. During cross-examination doctor made it clear that according to his opinion in this case so much extensive damage to heart was caused that it was not possible to save her life by giving medical aid to her. He also opined that death followed immediately after the injury.
11. The prosecution story also finds support from the factum of recovery of two golden bracelets recovered from the iron box lying in F the house of Zahid appellant, at the instance of Zahid. Rana Ijaz Ahmad was produced in support of recovery though he is brother of Muhammad Ashfaq yet he had no enmity with the appellant and his statement could not be brushed aside due to his relationship with the other P.Ws.
12. Muhammad Rafiq, S.-I. Appeared as P.W.14. He was subjected to very lengthy cross-examination.
He explained that if anyone desired to scale over the house of the complainant, he could do so by use of sui gas pipe fitted outside the house. He denied that Zahid was shown to the P.Ws. After his arrest at the police station on 7-3-1997. It was suggested to him that he had not asked Zahid to cover his face after his arrest while denying suggestion he referred to the relevant Zimni wherein it was mentioned that he had asked Zahid to cover his face. He further explained that once Zahid was sent to jail for the purpose of identification test he was never produced before the Magistrate during period in between his arrest and identification test. Nothing is on record to show that P.Ws.
Had gone to jail and met with the accused prior to the identification parade.
13. As far as recovery of pistol at the instance of the appellant is concerned, we would not like to rely upon it as the empty recovered from the spot was not sent to Forensic Science Laboratory till recovery of pistol. Similarly in our opinion it is not safe to rely upon the recovery of ear-rings at the time of arrest of Zahid appellant as, the relevant recovery memo. Exh.P.J. Was not attested by any public witness and the signatures of Muhammad Hussain, constable, were different on recovery memo. Exh.P.H. Relating to recovery of pistol. 'D. W.1 Abdullah appeared in defence of Muhammad Ashfaq, who had not filed appeal. However, he had to admit during cross-examination that he himself was involved in many cases including that of dacoity. Manzoor Ahmad D.W.2 is father of Zahid appellant and his statement does not help the accused in any manner. He being father has only tried to save his son. Statement of D.W.3 Muhammad Hussain Iqbal, Fire-Arm Expert, need not be discussed as we have not placed reliance on the evidence of recovery of weapon.
14. The upshot of the whole discussion is that the prosecution has successfully proved its case against the appellant through very reliable, trustworthy and coherent ocular account, which is supported by the medical evidence, and corroborated by the circumstances of the case. Thus, we find no merit in this appeal and dismiss it.
15. Consequently, sentence of death is confirmed. Murder reference is answered in the affirmative.