' JAVED IQBAL, J.---The above captioned appeals, arising out of the common judgment dated 23- 4-2002 passed by learned Division Bench of Lahore High Court, Lahore, are being disposed of by this single judgment involving the same questions of fact and law.
2. Leave to appeal was granted by means of order dated 22-3-2005 which is reproduced herein below to appreciate the legal and factual aspects of the appeals:-- "These petitions have arisen out of the judgment of the Lahore High Court, Lahore, dated 23rd April, 2002, whereby the death sentence of Muhammad Akram Rahi, awarded to him by the trial court (Special Court Anti-Terrorism Faisalabad) vide judgment dated 22-6-1998 has been confirmed whereas death sentence of co-accused Qari Muhammad Ayaz has been converted into life imprisonment on partially accepting Murder Reference No,198-T/1998 and disposing of appeal filed by them against conviction/sentence accordingly.
(2) The facts necessary for disposal of the petition are that in pursuance of F.I.R. Dated 17th May, 1996 a case under" sections 302, 324/34/109, P.P.C. Was registered at Police Station Peoples Colony, Faisalabad alleging therein that the accused persons whose description were mentioned in the F.I.R. Entered into the house of Dr. Bashir Ahmad and in the T.V. Lounge of the house committed murder of Mst. Altaf Bashir, wife of Dr. Bashir Ahmad and also caused injuries to the petitioner (complainant) Dr. Bashir Ahmad and P.W. Muhammad Hafeez Javaid (brother of the petitioner Dr. Bashir Ahmad). Accordingly after the registration of the case investigation was conducted and at h subsequent stage accused persons were arrested on 15th February, 1997 when they were brought out of the Central Jail, Faisalabad by P.W. Zafar Ali, S.-I. Where they were lodged in connection with some other case. It is noteworthy that before their formal arrest they were put to identification test parade on 28th January, 1997. Later on learned trial Court on completion of trial found them guilty for. The offences charged against them. They preferred appeals challenging their conviction and sentence. Simultaneously Murder Reference was also sent by the trial Court to learned High Court for confirmation or otherwise of the death sentence. Revision was also filed by complainant Dr. Bashir Ahmad for enhancement of compensation and fine and for separately convicting them on two counts for causing injuries to the P.Ws. Learned High Court dismissed the revision petition filed by the complainant and confirmed the death sentence of one of the convicts Muhammad Akram Rahi, whereas the sentence of Qari Muhammad Ayaz was converted into life imprisonment vide impugned judgment.
(3) Learned counsel appearing in Jail Petition on behalf of petitioner Muhammad Akram Rahi stated that prosecution case is full of doubts and there is no reliable evidence on record to maintain the conviction/sentence awarded to them by the trial court and partially modified by learned High Court as it has been detailed hereinabove. He also stated that the identification test parade was also not carried out in accordance with law, therefore it had no evidentiary value but the learned trial Court as well as the High Court believed the same without making reference to the relevant law. It is also one of his grievances that the evidence produced by the prosecution as well as the defence was not appreciated by the High Court keeping in view the recognized principles of appreciation of evidence laid down by the superior courts.
(4) Learned counsel appearing for the complainant contended that the prosecution produced overwhelming evidence warranting death penalty to Muhammad Akram Rahi as well as Qari Muhammad Ayaz but without assigning cogent reasons the sentence of latter has been reduced to life imprisonment. He also stated that the High Court had dismissed the revision filed by the petitioner without any justification.
(5) We have heard learned counsel for both the sides and have also gone through the impugned judgment carefully.
(6) It is to be noted that the instant case prosecution case mainly depends upon the identification parade of the accused persons who admittedly were already confined in the District Jail Faisalabad and before their arrest they were put to identification, inside the Jail premises, therefore, for such reasons to reevaluate the evidence produced by the prosecution to establish accusation against them is called far. Similarly the contentions put forward by the learned counsel for the complainant in the criminal petitions require examination in depth in the interest of justice.
Thus for the foregoing reasons leave to appeal is granted in all listed petitions and delay of five days in filing of Jail Petition No,198 of 2002 is also condoned accordingly."
3. Sardar Muhammad Siddique Khan, learned Advocate Supreme Court entered appearance on behalf of Muhammad Akram Rahi, appellant (in Criminal Appeal No, 64 of 2005) and contended strenuously that the entire evidence which has come on record has not been appreciated in its true perspective and besides that the defence version has never been kept in juxtaposition which resulted in serious miscarriage of justice. It is urged with vehemence that in an identical case and on the basis of same evidence, a conflicting view has been adopted by the learned Division Bench by awarding lesser penalty to Qari Muhammad Ayyaz by converting his sentence of death to that of life imprisonment whereas the case of Muhammad Akram Rahi (appellant) has been dealt with in a different manner without any lawful justification. It is argued that a false and concocted case was got registered against the appellant in view of severe public criticism on the performance of police of the area. In order to substantiate the said version it is pointed out that Waris Ali Gill S.-I.
Police who was aggrieved with Muhammad Akram Rahi (appellant) due to his marriage with Mst.
Rehana Kausar, a resident of Chak No,265/RB as is indicative from the statement of (D.W.1) which was never appreciated properly. It is further argued that recovery effected from Muhammad Akram Rahi was false and fictitious and besides that there are glaring contradictions in the statements of prosecution witnesses which went unnoticed causing serious prejudice against the appellant. Sardar Muhammad Siddique Khan, learned Advocate Supreme Court remained highly critical qua the legality/validity of identification parade as according to him the appellant was arrested on 26-2-2007 and remained in the custody of Police Station Nishatabad and was shown to the prosecution witnesses enabling them to identify him during identification parade. It is also pointed out that the names of appellants were never mentioned in the original F.I.R. And no allegation qua theft or robbery was ever alleged against them and all the subsequent developments are nothing but distortion of facts based on dishonest and malice of the prosecution. Lastly it is argued that in view of the similarity of the facts between the cases of Muhammad Akram Rahi (appellant) and Qari Muhammad Ayyaz, the death sentence may be altered to that of life imprisonment as on the basis of same prosecution evidence death sentence awarded to appellant should have been altered to that of life imprisonment by the learned Division Bench which could not be done for the reasons best know to it.
4. Raja Shahid Mahmood Abbasi, learned Deputy Prosecutor General appeared on behalf of State and vehemently controverted the view point as. Canvassed at bar by Sardar Muhammad Siddique Khan, learned Advocate Supreme Court and supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has established the guilt to the hilt by producing cogent and concrete evidence. In this regard the statement of Dr. Bashir Ahmad (P .W .7/complainant) and Muhammad Mustahsan Bashir (P .W.9) have been referred to which according to the learned Deputy Prosecutor-General have rightly been considered and relied upon by the learned trial and appellate courts. It is also contended that even without having identification parade the appellant was identified during trial by the above mentioned prosecution witnesses and therefore, any omission or lapse while conducting the identification parade, would have no substantial bearing on merits of the case. It is also contended. That in the absence of any mitigating or extenuating circumstances, the death sentence could not have been converted to that of life imprisonment. Raja Shahid Mahmood Abbasi, learned Deputy Prosecutor-General argued that the case of Qari Muhammad Ayyaz is absolutely different as the fatal injury has been attributed to Muhammad Akram Rahi. (appellant) and therefore, the death sentence of Qari Muhammad Ayyaz has rightly been converted to that of life imprisonment and no illegality whatsoever has been committed and cogent reasoning for such conversion has been given by the learned High Court.
5. Mr. M. A. Zafar, learned Advocate Supreme Court entered appearance on behalf of Dr. Bashir Ahmed (appellant in Criminal Appeals Nos. 65 and 66 of 2005) and contended vehemently that the learned High Court has failed to appreciate the factum of common intention/common object duly proved by the prosecution on the basis of cogent and concrete evidence and hence the death sentence awarded to Qari Muhammad Ayyaz could not have been converted to that of life imprisonment in the absence of any mitigating and extenuating circumstances. It is argued that Qari Muhammad Ayyaz had played a pivotal role and accompanied Muhammad Akram Rahi (appellant) and participated in firing. It is further argued that it hardly makes any difference whether fatal shot of firing was attributed to him or otherwise in view of the provisions as enumerated in section 34, P.P.C. Mr. M. A. Zafar, learned Advocate Supreme Court argued that normal penalty of death should have been imposed in view of the role attributed to Qari Muhammad Ayyaz and uncalled for leniency shown by the learned Division Bench has no value in the eyes of law and settled norms of justice as Qari Muhammad Ayyaz was not entitled to any indulgence and conversion of his death sentence to that of life imprisonment is illegal and unlawful which resulted in a grave miscarriage of justice. Khawaja Sultan Ahmed. Learned Senior Advocate Supreme Court entered appearance on behalf of Qari Muhammad Ayyaz and supported the judgment impugned for the reasons enumerated therein and stated that there was a considerable distinction between the role assigned to Muhammad Akram Rabi (appellant) and Qari Muhammad Ayyaz which has rightly been appreciated by the learned appellate court. It is also argued that it is an admitted feature of the case that fatal injury on the person of deceased was never attributed to Qari Muhammad Ayyaz and besides that the injuries on the persons of injured prosecution witnesses were not specifically attributed to him and thus the indulgence of learned-High Court was neither arbitrary nor unlawful and does not warrant any interference in view of the cogent reasoning which has been given by the learned High Court while converting the death sentence of Qari Muhammad Ayyaz to that of life imprisonment.
6. We have carefully examined the respective contentions as agitated on behalf of the appellant in the light of relevant provisions of law and record of the case. We have minutely perused the evidence by keeping the defence version in juxtaposition with the eminent assistance of learned Advocate Supreme Courts. We have also examined the judgment of the learned trial court and judgment impugned. The prosecution case mainly hinges on the eye account furnished by Dr. Bashir Ahmad (P.W.7/complainant), Muhammad Hafeez Javed (P.W.8) and Muhammad Mustahsan Bashir (P.W.9) duly corroborated by medical evidence, factum of recovery and identification parade. A careful and an in depth scrutiny of the statement of Dr. Bashir Ahmad, (P.W.7/complainant) would reveal that he has supported the prosecution case on all material particulars and stated in a categoric manner that "Muhammad Akram accused raised Lalkara and fired with his Kalashnikow at his wife, hitting on the back side of her left thigh on its lower portion and she fell down." He and his brother Muhammad Hafeez Javed (P.W.8) intervened to save the life of deceased but Muhammad Akram Rahi (appellant). And Qari Muhammad Ayyaz along with third accused (absconder) again started firing by means of their Kalashnikov .And one fire shot hit him on the front side of right shin and one tire shot hit on the ring finger of his right hand. He further stated that another fire hit the lower portion of right knee joint of his brother Muhammad Hafeez Javed (P.W.8) and another shot hit the abdomen of his wife. As a result of firing they fell down and meanwhile Muhammad Akram Rahi (appellant) picked up Dish Receiver (P1) and Qari Muhammad Ayyaz accused took cash of Rs,60,000 from the drawer of his almirah. It is stated that his wife succumbed to the injuries and Muhammad Akram Rahi (appellant), Qari Muhammad Ayyaz and companion managed their escape good. They were removed along with his deceased wife to DHQ Hospital, Faisalabad where they were examined medically and thereafter police arrived and completed necessary formalities. It is worth mentioning that Dr. Bashir Ahmed (P.W.7/complainant) was subjected to a lengthy cross-examination examination but nothing beneficial could be extracted and his testimony remained un-shattered in spite of various searching questions. We are conscious of the fact that there are certain contradictions in the statements of prosecution witnesses but the same cannot be considered grave in nature and being minor can be ignored as the same do creep in with passage of time. We may mention here at this juncture that Muhammad Hafeez Javed (P.W.8) and Muhammad Mustahsan Bashir (P.W.9) have fully supported the version of Dr. Bashir Ahmed (P.W.7/complainant) on all, material particulars. They have also highlighted the factual aspects of the controversy and attributed specific role of firing to Muhammad Akram Rahi (appellant) and Qari Muhammad Ayyaz as a result whereof the wife of Dr. Bashir Ahmed (P.W.7/complainant) expired and the prosecution witnesses sustained injuries. A careful scrutiny of the evidence furnished by Muhammad Hafeez Javed (P.W.8) and Muhammad Mustahsan Bashir (P.W.9) would reveal that in spite of an exhaustive cross-examination nothing advantageous could be elicited rendering any help to the case of Muhammad Akram Rahi (appellant) and Qari Muhammad Ayyaz. The statement of Dr. Bashir Ahmed (P.W.7/complainant) duly supported by Muhammad Hafeez Javed (P.W.8) and Muhammad Mustahsan Bashir (P.W.9) finds corroboration from medical evidence furnished by Dr. Masood Iqbal Bukhari (P.W.1) who medically examined Dr. Bashir Ahmed (P.W.7/complainant) and Muhammad Hafeez Javed (P.W.8). Prof. Dr. Altaf Bashir (deceased) was also examined by Dr. Masood Iqbal Bukhari (P.W.1). The medical evidence as furnished by Dr. Masood Iqbal Bukhari (P.W.1) is in consonance with the eye account furnished by Dr. Bashir Ahmed (P.W.7/complainant), Muhammad Hafeez Javed (P.W.8) and Muhammad Mustahsan Bashir (P.W.9). We have also adverted to the prime contention of learned Advocate Supreme Court on behalf of Muhammad Akram Rahi (appellant in Criminal Appeal No,64 of 2005) that identification parade was not held in accordance with law as the appellant was already under detention and shown to the prosecution witnesses for the purposes of identification which resulted in serious miscarriage of justice. It is also contended that no secrecy worth the name could be maintained and hence the result of identification parade should have not been taken into consideration having little legal value being held in flagrant violation of relevant provisions of law.
In order to appreciate the prime contention of Sardar Muhammad Siddique Khan, learned Advocate Supreme Court on behalf of Muhammad Akram Rahi (appellant), we have examined the statement of Khalid Mahmood Ranjha, Civil Judge/Judicial Magistrate (P.W.10) who, pursuant to the order dated 19-1-1997 of learned Sessions Judge, conducted identification parade in Central Jail, Faisalabad. A careful scrutiny of his statement would reveal that all the necessary formalities have been completed. Even for the sake of arguments if it is considered that there are certain lapses and omissions in the conduct of identification parade, it would have no substantial bearing on merits of the case as it is well-settled by now that identification of an accused during identification parade cannot be considered as substantive piece of evidence and it is merely a corroboration and even otherwise identification parade is immaterial if the identification of accused is proved by other convincing evidence. In this regard, reference can be made to case titled Muhammad Afzal v.
State (1982 SCM R 129), relevant portion whereof is reproduced herein below for ready reference:-- "13. Now there is no provision in law that identification proceedings should be held in cases where a crime is committed by persons unknown to the witness or for that matter in any type of cases. The identification has by itself no independent value. As stated by Viscount Haldane, L.C. In King v.
Christie (1914 AC 545) "its relevancy is to show that the witness was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake". In practice however., it is not safe to accept the statement of a witness about complicity of an accused in a crime if he did not describe him by name or other particulars during the investigation and still was not made to identify him out of a group. If; however, the identity of the accused is proved by other convincing evidence direct or circumstantial, the absence of identification test proceedings will be immaterial." (Emphasis provided)
7. We have examined the legality and validity of the identification parade on the well entrenched criterion as mentioned herein above and found . That the appellant was identified by Dr. Bashir Ahmed (P.W.7/complainant) not only during the identification parade but as well D as during trial. It may not be out of place to mention here that identification parade becomes essential if a witness gets a momentary glimpse of the accused and he claims that he would be able to identify the accused, only then the identification test would become inevitable. ##TSE# (State v. Farman Hussain PLD 1995 Supreme Court 1). Insofar as this case is concerned, the appellant remained in the house of Dr. Bashir Ahmed (P.W.7/complainant) for a reasonable time and hence the question of any 'doubt qua identification by Dr. Bashir Ahmed F (P.W.7/complainant) does not arise. The question whether any identification parade was warranted depends on the. Facts of each case and no principle of universal application can be laid down. In this regard we are fortified by the dictum laid down in the following cases:-- ' Lal Pasand v. The State (PLD 1981 Supreme Court 142), Abdul Sattar v. The State (1981 SCM R 678), Muhammad Yousuf Zai v. The State (PLD 1988 Kar. 539).
8. As mentioned hereinabove, a prosecution witness can even identify the accused in court and it is not the legal requirement that identification must be held in all the cases.. If any reference is required cases titled Lal Pasand v. The State (PLD 1981 Supreme Court 142), Abdul Sattar v. The State (1981 SCM R 678), Muhammad Yousuf Zai v. The State (PLD 1988 Kar. 539), can be referred.
9. We have also examined the defence version. Muhammad Akram Rahi (appellant) who stated in his statement got recorded under section 342, Cr.P.C. Which is a denial simplicitor and besides that factum of recovery has been refuted and it is mentioned that a false and concocted case was got registered at the behest of Waris Ali Gill, S.I. Who roped him in case, bearing F.I.R. No, 173 dated 17-5- 1996 of Police Station Nishatabad and had got him identified in the premises of Police Station Peoples Colony. Ch. Waris Ali, SI (D.W.1) has been produced to substantiate the said defence plea whose statement hardly renders any assistance to the case of Muhammad Akram Rahi.
(appellant) in view of the overwhelming evidence which has come on record and besides that no enmity whatsoever has been alleged against Dr. Bashir Ahmed (P.W.7/complainant), Muhammad Hafeez Javed (P.W.8) and Muhammad Mustahsan Bashir (P.W.9). Even for the sake of argument if it is admitted that Waris All Gill, S.-I. Was on inimical terms with Muhammad Akram Rahi (appellant), it would have no material bearing on merits of the case because, as mentioned herein above, even if the identification parade wherein allegedly he had got identified by Waris Ali Gill, S-I. Is excluded, sufficient incriminating material proving the case against Muhammad Akram Rahi (appellant) has come on record which cannot be ignored. The prosecution has established the guilt to the hilt by producing forthright, confidence inspiring and trustworthy evidence by producing Dr. Bashir Ahmed (P.W.7/ complainant), Muhammad Hafeez Javed (P.W.8) and Muhammad Mustahsan Bashir (P.W.9) duly supported by medical evidence and factum of recovery.
10. We have carefully examined the argument as adduced on behalf of Dr. Bashir Ahmed P.W.7/complainant) in Criminal Appeal No,65 of 2005. We are conscious of the fact that the sentence of death could not have been converted to that of life imprisonment in the absence of any mitigating or extenuating circumstances. The entire evidence which has come on record has been examined in depth and we are of the view that learned High Court has given cogent reasoning for converting the sentence of death to that of life imprisonment as it is an admitted feature of the case that fatal injury on the person of Prof. Dr. Altaf Bashir (deceased) was never attributed to Qari Muhammad Ayyaz and besides that sufficient incriminating material is lacking to prove the factum of common object and common intention. There is no evidence whatsoever showing the pre-concert and pre-arrangement for the commission of alleged murder. As mentioned hereinabove, the fatal injury which resulted into the death of Prof. Dr. Altaf Bashir was not attributed to Qari Muhammad Ayyaz and therefore, his case was distinguishable and the distinction has rightly been appreciated by the, learned High Court by converting his death sentence to that of life imprisonment which cannot be equated to that of uncalled for leniency as mentioned time and again by Mr. M.A. Zafar, learned Advocate Supreme Court.
In the light of what has been stated hereinabove, the above captioned appeals being devoid of merits are dismissed.