SH. NAJAM-UL-HASSAN, J. - Javed alias Jaida, Muhammad Zahid alias Jaju, Muhammad Munir alias Baba and Mushtaq alias Mushtaqi, appellants were tried by the learned Additional Sessions Judge, Gujranwala in case F.I.R. No. 380, dated 30.9.2000 under Sections 302/398/34, P.P.C. Registered at Police Station Saddar, Gujranwala. The said learned Trial Court vide judgment dated 7.2.2003 convicted the appellants under Section 302(b), P.P.C. For causing Qatl-e-Amd of Jamil Ahmad and Bashir Ahmad, and sentenced each of them to death on two counts. Each of the appellants was also directed to pay compensation of Rs. 1,00,000/- to the legal heirs of the deceased or in default thereof to undergo six months' S.I. Under Section 544-A, Cr.P.C.
2. The appellants have filed Criminal Appeal No. 172 of 2003 challenging the above noticed conviction and sentences recorded against them, whereas, the learned Sessions Judge, Gujranwala has submitted Murder Reference No. 256 of 2003 seeking confirmation of the death sentences imposed on the convicts. We dispose of these two connected matters together through this single judgment.
3. This is a double murder case which took place on 30.9.2000 at 10.30 p.m. During an attempt to commit robbery and the matter-was reported to the Police by Khalil Ahmad, Complainant (P.W.10) on the basis of which F.I.R. Ex.PE/1 was registered at the Police Station same day at 11.30 p.m.
4. Precisely the prosecution story as narrated in the complaint Ex.P.E. Is that Khalil Ahmad, complainant (P.W.1.0) was present in his house on 30.9.2000 at 10.30 p.m. His brothers, Jamil Ahmad and Bashir Ahmad did not reach home when he went outside to see them. He was yet at corner of the street when he heard report of a fire. He saw that two unknown persons whose contours have been mentioned in the F.I.R. Fired with their weapons hitting Jamil Ahmad and Bashir Ahmad on different parts of their bodies as a result of which both of them succumbed to the injuries. Hence, the F.I.R. Was lodged. Later on the complainant made a supplementary statement in which he stated that the assailants were in fact four in number who had committed the murder of his brothers during an attempt for robbery.
5. On 1.10.2000, at 10.45 a.m. Dr. Gulzar Ahmad (P.W.3) conducted post-mortem examination on the dead- body of Bashir Ahmad and observed the following injuries:-
(1) A fire-arm lacerated wound with inverted margins circular in shape 3/4 x 3/4 cm x going deep on antro lateral aspect of left fore arm in its upper part 6 cm below the left elbow.
(2) A fite-arm lacerated wound 1 x 1/2 cm oval Shape with everted margins on medial aspect of left forearm upper part 5 cm below the left; elbow.
(3) A fire-arm lacerated wound ablonged in shape 1 x 1A cm x going deep with inverted margins on left lateral aspect of chest over the mid auxiliary line 13 cm below the base of axilla.
(4) A lacerated wound VA x 1A cm x scalp deep on middle- of forehead between bridge of nose and anterior hair line.
One metallic foreign body was recovered from abdominal cavity of the deceased. Injuries NOs. 1 and 3 were entry wounds whereas injury No. 2 was exit of injury No. 1. The doctor found injury No. 3 fatal which was sufficient to cause death in ordinary course of nature.
On the same day at 11.30 a.m. This doctor also conducted post-mortem examination on the dead- body of Jamil Ahmad and found the following injuries:-
(1) A fire-arm lacerated wound 3/4 x 3/4 cm with inverted margins x going deep on right antro lateral aspect of neck 5 cm below the right angle of mandible (entry wound).
(2) A fire-arm lacerated wound 3 x 2 cm with everted margins on lateral aspect of left side of chest 10 cm from left nipple at 4 O' clock position.
According to the doctor injury No. 1 was entry wound which proved fatal as the same was sufficient to cause death in ordinary course of nature.
6. Hakim Ali, Sub-Inspector (P.W.14) was on patrol duty on 30.9.2000 when he met Khalil Ahmad, complainant who made a complaint (Ex.PE) before the Sub- Inspector regarding the present occurrence on the basis of which formal F.I.R. Ex.P.E/1 was registered at the Police Station. Thereafter the Sub-Inspector proceeded towards the spot and conducted formal investigation. He collected four empties of 222 bore rifle from the place of occurrence and took them into, possession vide memo. Ex.PF. He arrested Zahid, Munir and Mushtaq, appellants on 26.11.2000 and sent them to jail for identification parade. He applied for identification parade of these accused. Which was subsequently conduced in jail on 28.11.2000. Javed alias Jaida, appellant had been arrested in case F.I.R. No. 479/2000 of Police Station Cantt., Lahore. The Sub- Inspector got him transferred to District Jail, Gujranwala on 9.12.2000 for his identification parade.-. He applied for identification parade which was allowed and consequently the same was conducted in jail on 12.12.2000. He arrested Javed appellant in the present case who while in custody on 18.12.2000 got recovered 222 rifle with seven live bullets which were taken into possession vide memo. Ex.PJ. On 25.12.2000, Mushtaq Ahmad, Munir Ahmad and Zahid, appellants, also respectively got recovered .30 bore pistol (P,10) with live round (P.11/1-2), .30 bore pistol (P,8) with empties (P.9/1 or 2) and .30-bore pistol (P.12) with two rounds which were taken by the 1.0. Into possession vide memos. Exs.PL, PK and PM. After completion of investigation the appellants were challaned to Court to face trial.
7. At the inception of trial the appellants denied the charge and claimed trial. In order to prove its.
Case the prosecution produced fifteen witnesses out of which Khalil Ahmad and Muhammad Rafique (P.W.10 & P.W.TI) provided ocular account of the occurrence. Dr. Gulzar Ahmad (P.W.3) provided medical evidence. Hakim All, Sub- Inspector (P.W.14) proved his investigation whereas, Muhammad Aitazaz, Magistrate 1st Class proved the proceedings of identification parade. At the end of prosecution evidence the accused persons/appellants. Made statements under Section 342, Cr.P.C. And stated that they have been falsely involved in this case by the police. The appellants also produced evidence in defence. They, however, did not make statement on oath under Section 340(2), Cr.P.C., At the conclusion of trial, the appellants were convicted and sentenced as noticed above.
8. Learned counsel for Javed alias Jaida and Muhammad Munir, appellants contends that the appellants were not named in the F.I.R; that initially two assailants were mentioned in the F.I.R. But later on through supplementary statement number of assailants was increased to four; that there was no evidence to connect the appellants with the crime except that of identification parade that the appellants had been shown to the witnesses while in custody, therefore, the identification parade has lost its efficacy;-that no specific role has been attributed to the appellants and allegation of general firing is levelled against them; that nothing was recovered from the appellants and the recovery has been fabricated. Even otherwise allegedly the place of recovery was thickly populated area but no witness from the locality has been associated in the recovery proceedings which is clear violation of Section 103, Cr.P.C.; that it could not be established on record that the appellants attempted to commit robbery, therefore, there was no justification for committing the murder of the deceased and that there was no sufficient evidence against the appellants to convict them for the offence entailing capital punishment.
9. Learned counsel for Zahid, appellant contends that there is only suspicion against him; that recovery of 30 bore pistol has been planted against him and even otherwise the same cannot be connected with the commission of crime as no empty of .30 bore pistol was recovered from the spot and there is nothing on record to connect him with the crime; that in identification parade no role has been ascribed to the appellant; that in the F.I.R. There is a general role against the two persons whereas, four persons faced trial and as such the role of the appellant could not be ascertained; 'that it could not be established by the prosecution as to who were the two persons mentioned in the F.I.R. As such the appellant is entitled to the benefit of doubt and that the appellant remained in police remand but no incriminating material was recovered from him.
10. Learned counsel for Mushtaq, appellant adopted the arguments of the learned counsel for Zahid and Munir appellants.
11. Conversely; learned Additional Prosecutor General states that case of Muhammad-Zahid, Muhammad Munir and Mushtaq, appellants is on the Same footing as that of Javed, appellant; that in the crime every person is equally liable for the offence. Further states that no enmity has come on record for false implication of the appellants; that it is a thickly populated area and it cannot be said by any stretch of imagination that the occurrence was un-seen; that the place of occurrence was close to the house of the complainant and the deceased, therefore, presence of the eye-witnesses at the spot was natural and their presence at the spot cannot be denied; that medical evidence corroborates the ocular account, presence of empties at the place of occurrence which were taken into possession on the same day when the appellants were not even named and later on .They matched with the gun of Javed, appellant.
12. We have heard the learned counsel for the parties and have gone through the record.
13. In this occurrence two innocent persons lost their lives at the hands of assailants. Initially, the complainant named two persons as assailants in the F.I.R. However, later on he made supplementary statement in which he raised the number of assailants to four. Muhammad Zahid, Munir Ahmad, Mushtaq and Javed were challaned to Court as the culprits.
14. To prove charge against the appellants, the prosecution relied on ocular account of the occurrence, medical evidence, identification parade recoveries from the spot as also from the appellants.
15. In the light of above pieces of prosecution evidence, we feel it convenient to discuss the case of Muhammad Javed, appellant first as the prosecution case to his extent is distinguishable from the case of other appellants.
Hakim AM, Sub-Inspector (P.W.14) investigated this case. After registration of case on 30.9.2000 he inspected the spot. During spot inspection he collected four empties of 222 rifle (P.F/1-4) which he took into possession vide memo. Ex.PF. The I.O. Sent the crime empties to the Forensic Science Laboratory on 27.11.2000. At trial, the investigator admitted during cross-examination that Zahid, Muhammad Munir and Mushtaq, appellants were arrested on suspicion on the basis of secret information. He also admitted that Javed, appellant was arrested on 9.12.2000 on the disclosure made by these three appellants. During investigation, Javed, appellant led to. The recovery of 222 rifle (P.7) which was taken into possession, by the investigator vide memo. Ex.PJ. The said rifle was sent to the Forensic Science Laboratory on 2.1.2001. The Laboratory vide its report Ex.PAA reported that all the crime empties recovered from the spot have matched with the 222 rifle recovered from Javaid, appellant. The investigating officer after formal arrest of Javaid appellant in this case got him transferred from Central Jail Kot Lakhpat, Lahor to Distt. Jail Gujranwala. He applied to the concerned Magistrate for identification parade which was consequently conducted in jail under the supervision of Muhammad Aitzaz, Magistrate (PW. 15). The complainant and Dr. Muhammad Rafiq (PWs.10&11) correctly identified the appellants during identification parade. Javaid, appellant did not suggest any ill will or animosity on the part of the eye-witnesses to falsely implicate him.
The complainant alleged that the assailants 'fired shots hitting both the deceased on different parts of their bodies. Dr. Gulzar Ahmad, PW. 3 conducted postmortem examination on the dead- bodies. He found four firearm injuries on the body of Bashir Ahmad out of which two were fire-arm entry wounds. (the doctor also observed two fire-arm injuries on the body of Jamil Ahmad out of which one was entry wound. As noted above, four crime empties of .222 rifle were recovered from the spot and sent to the Forensic Science Laboratory. During investigation 222 rifle was recovered from the possession of Javaid appellant which was also sent to the Forensic Science Laboratory and according to the report of the Laboratory the said rifle had matched with the crime empties.
The appellant was subjected to identification parade and the eye-witnesses had correctly identified him as the assailant who had committed the crime. The eye-witnesses had claimed that they had seen the assailants in the light of elector Habib Masood Ahmad Bhatti, Draftsman (PW. 13) prepared the site plan and stated during cross-examination that there was an electric bulb installed at the wall of the house of one Saleem about 35 feet from the place of occurrence. Thus it is established that there was sufficient light at the place of occurrence at the relevant time. The appellant did not suggest any slightest enmity on the part of the prosecution to falsely implicate him in this occurrence. Therefore, we find that the prosecution .Has fully proved its case against Javaid appellant and we hold accordingly.
16. So far as Muhammad Zahid, Muhammad Munir and Mushtaq, appellants are concerned, they were arrested by Hakim Ali, investigator on suspicion. All three of them led to the recoveries of 30 bore pistols which were taken into possession by the investigating officer. It may be mentioned here that no empty of 30 bore pistol was recovered from the spot. Although all these three appellants had also been identified by the eye-witnesses during identification parade but to connect them with the crime some Other incriminating piece of evidence is necessary because no specific role of each of them was given by The P.Ws. During the identification parade. The doctor as mentioned above found five injuries in all on the dead-bodies out of which three of them were fire- arm entry wounds. The dimension of injuries would show that they had been fired at from a single aperture weapon. Four empties of 222 rifle had. Been collected from the spot which have matched with the rifle recovered at the instance of Javaid appellant. There is no evidence available on record that 30 bore pistol had been used during the occurrence. As such recovery of .30 bore pistols at* their instance is of no avail to the prosecution. Therefore, we see no other corroboratory piece of evidence in support of the prosecution case. Needless to mention here that identification parade is also a corroboratory piece of evidence and capital punishment cannot be awarded only on the basis of a single piece of corroboratory evidence which is not further corroborated by', any other piece of evidence. Therefore,-as a matter of abundant caution, we find that the prosecution could not prove its case against Muhammad Zahid, Muhammad Munir and Mushtaq, appellants beyond shadow of doubt.
17. The nutshell of the above discussions is that the prosecution has a foolproof case against Javaid, appellant whereas it could not prove its- case against the other appellants.
18. In view cr what has been noticed and discussed above, Criminal Appeal No. 172 of. 2003 is accepted to the extent of Muhammad Zahid, Muhammad Munir and Mushtaq, appellants. The conviction and sentence recorded against these three appellants are set aside, and they are acquitted of the charge giving them benefit of doubt. They be set at liberty forthwith if not required to be detained in any other case. To the extent of Javaid, appellant Criminal Appeal No. 172 of 2003 is dismissed.
20. Since Muhammad Zahid, Muhammad Munir and Mushtaq, appellants have been acquitted of the charge, therefore, Murder Reference No. 256 of 2003 is answered in negative to their extent.
21. It has come on record that Javaid appellant was also involved in some other cases of similar nature. He. Is thus a desperate and hardened criminal and does'" not deserve any leniency. No mitigating circumstance has been shown to exist by the learned counsel for this appellant for not awarding him normal penalty. Murder Reference No. 256 of 2003 to his extent is, therefore, answered in affirmative and death sentence awarded to him on two counts is confirmed.