1. Iftikhar Hussain Butt, J.--The appellants were convicted and sentenced to, death as Hadd under Section 17(4), EHA read with Sections 34, 109, 111, APC. They were also convicted and sentenced to 12 years imprisonment alongwith fine of Rs,20,000/-each under Sections 458 and 34, APC. They were further sentenced under Section 13/20/65, A.A. In default of payment of fine they have to undergo three months S.I.
2. Muhammad Iqbal was also convicted and sentenced under Section 337A-2, APC as `Arsh' amounting Rs, 60,000/- alongwith five years imprisonment. The `Arsh' amounting Rs,60,000/- shall be paid to Aamir Tanvir injured, in default of payment of `Arsh' money, Muhammad Iqbal will be detained in judicial lock-up. All the appellants were also ordered to pay Rs,1,00,000/- (One Lac) each as compensation under Section 544-A, Cr.P.C. which after realization shall be paid to the heirs of Tariq deceased, in default of which, they will undergo sentence of six months S.I each.
3. The necessary facts forming the background of the above titled appeals and reference are that on the basis of statement of Aamir Tanvir (P.W.1) recorded on 9.2.2010 at DHQ Hospital Kotli, a case under Sections 458, 337-A, 337-F, APC read with Section 17(2). The Offences against Property (Enforcement of Hadood) Act, 1985 (hereinafter to be referred as the Act) was registered on 9.2.2010 at 8:30, P.M. It was alleged that on 9.2.2010 at 7:50, pm, he after offering 'Esha' prayer was proceeding towards the house of his father-in-law Muhammad Tariq Jeweler. As soon as he entered the gate, an unknown person got hold of him from the Collar of his Coat from back side and asked him to hand over whatever he has got, meanwhile, two other unknown persons arrived there. One of them stayed at the gate and the other came near to him who inflicted injury with the butt of pistol, which hit him on his head. On account of which he got injured and staggeringly entered the TV room of his house where his father-in-law Tariq was also present. Meanwhile, Tariq got hold of an unknown person and threw him down, who fired two shots upon Tariq with the pistol, out of which, one hit Tariq. Meanwhile, Siddiqa Begum wife of Tariq also came there but unknown person inflicted an injury with butt of pistol, which hit her on head and right hand. The complainant brought out a pistol from the other room and fired a shot upon unknown person, which missed the target. On making hue and cry, the accused persons fled away who were speaking Punjabi Language. He chased the accused persons upto the half part of the Air Ground. He made a telephonic call to Ishtiaq, one of his relative who also arrived there. The occurrence was witnessed by Naveed, the servant. Ch. Asif Karim also arrived at the spot and witnessed the occurrence.
4. After registration of the case, the investigation of the case was carried out by Muhammad Abdur Rauf Khan, S.I Investigation (P.W.32) who prepared the inquest report Exh.PT' and a site plan Exh.PX.
5. The injury forms of the deceased Exh.P.C, Aamir Tanvir Exh.PD and Mst. Siddiqa Bibi Exh.PE were prepared by Muhammad Faazil Khan S.I. Police (P.W.25) on 9.2.2010.
6. Abdur Rauf Khan, S.I., (P.W.32) sent the dead body to Mortuary for postmortem. He took into possession blood of the deceased with a cotton from the spot vide recovery memo. Exh.PQ in presence of Ch. Asif Karim (P.W.6) and Muhammad Riaz (P.W.10). He also took into possession two empties of .30-bore pistol from place of occurrence vide recovery memo. Exh.PQ/2 in presence of the above mentioned witnesses. After the postmortem, he took into possession the bloodstained clothing of deceased Tariq vide recovery memo. Exh.PB in presence of Ishtiaq Ahmad (P.W.5) and Abu-Zar (P.W.7). On the same day he took into possession the weapon of offence a .30-bore pistol with a magazine having eight rounds from the Car No, LEA 5464 used during the occurrence, on the pointation of Abdur Rehman accused vide recovery memo. Exh.PO attested by Zulfiqar Hussain (P.W.8) and Shahnaz Hussain (P.W. 9). On the same day he also took into possession two .30-bore pistols with magazines each having four live rounds on the pointation of Muhammad Iqbal and Muhammad Yaseen vide recovery memos. Exh.PO/4 and Exh.PO/6 respectively attested by aforementioned witnesses. He also recovered seven magazines having (65) live rounds from the car LEA- 5464 on the pointation of Abdur Rehman accused vide recovery memo. Exh.PO/2 in presence of the above mentioned witnesses. He further took into possession the bloodstained clothing of Abdur Rehman and Muhammad Iqbal accused vide recovery memos. Exh.PK and Exh.PL attested by Muhammad Idress (P.W.13) and Shahzad Bashir (P.W.14). He also took into possession the Car No, LEA-5464 used during the occurrence vide recovery memo. Exh.PM attested by above mentioned witnesses.
7. On personal search of the accused-persons mobile phones and Identity Cards etc. were recovered which were taken into possession vide recovery memos. Exh.PN, Exh.PN/1, Exh.PN/2, Exh.PN/3 and Exh.PN/4 attested by Abdur Razzaq (P.W.11) and Jamshed Rasheed (P.W.12).
8. The medical examination reports of Aamir Tanvir Exh, PD and Mst. Siddiqa Bibi Exh.PE/3 were prepared by Dr. Gohar Latif Khan (P.W.26). The injury forms of Abdur Rehman accused Exh. PY, Muhammad Iqbal accused Exh.PY/1 and Muhammad Yaseen Exh.PY/2 were prepared by Abdur Rauf S.I Investigation (P.W.32), On 11.2.2010, Abdur Rauf S.I, Investigation got prepared site plan Exh.PG by Abdul Masood Patwari (P.W.22).
9. On 15,2.2010 a bullet extracted during the postmortem of dead body of Tariq deceased, handed over by Dr. Abdul Qayyum (P.W.2/) was taken into possession by Abdul Rauf S.I Investigation vide recovery memo. Exh.PR attested by Muhammad Ibrar constable police (P.W.15) and Muhammad Zafar constable Police (P.W.16). The identification parade of the appellants held on 11.2.2010 in presence of Guftar Hussain SAM (P.W.28) vide documents Exh.PJ, PJ/1, PJ/2, PJ/3, PJ/4, PJ/5 and PJ/6.
10. On 10.2.2010 at 3:55am Dr. Abdul Qayyum CMO DHQ Hospital Kotli AK conducted the postmortem examination on the dead body of Raja Muhammad Tariq deceased vide its report Exh.PU. He found the following injuries on the dead body:-- Injuries: (Close distance contact shot)
11. 1, Entry Wound:- (Lt) Hypochondria 2 x 1h cm & tattooing.
2. No exit wound.
12. 3, Supraorbital stitches marks.
4. Vertex lacerated wound, 5, A bruise mark on (It) patella.
13. The reports of Chemical Examiner Exh.PAA, Serologist, Exh.PBB, Forensic Science Laboratory Exh.PCC were also produced.
14. After completion of the investigation challan was submitted before trial Court. The charge was framed against the appellants on 16.3.2010 who denied the guilt and claimed the trial. In order to prove the guilt of the convict-appellants, the prosecution produced Aamir Tanvir (P.W.1), Andleeb Tariq (P.W.3), Naveed Hussain (P.W.4), Ishtiaq Ahmad (P.W.5), Asif Karim (P.W.6) Abu Zar (P.W.7), Zulfiqar Hussain (P.W.8), Abdur Razzaq (P.W.11), Muhammad Idrees (P.W.13) , Ibrar Hussain constable police (P.W.15), Gulfraz (P.W.17), Anjum Muhammad Amjad (P.W.18), Abdul Masood Patwari (P.W.22), Muhammad Ajaib Khan ASI (P.W.23), Muhammad Zakir ASI (P.W.24), Muhammad Faazil Khan SI (P.W.25), Dr. Gohar Latif Khan (P.W.26), Dr. Abdul Qayum (P.W.27), Guftar Hussain SDM (P.W.28), Tahir Mahmood SI (P.W.31), Abdur Rauf SI Investigation (P.W.32), Sardar Shadab Khan DSP (P.W.33) and Muhammad Riaz Mughal SHO (P.W.34), whereas Mst. Siddiqa Bibi (P.W.2), Shahnaz Hussain (P.W.9), Muhammad Riaz (P.W. 10), Jamshed Rasheed (P.W. 12), Shahzad (P.W.14) Muhammad Zaffar constable police (P.W.16), Qamar Zaman (P.W.19), Saqib (P.W.20) and Muhammad Mushtaq (P.W.21) were abandoned by the prosecution.
15. After recording the prosecution evidence, the appellants were examined under Section 342,Cr.P.C.
16. The whole of the prosecution evidence alongwith connected material was put to them for their explanation but they refuted the prosecution evidence and claimed to be innocent. Gulfam and Abdur Rehman accused got recorded their statements on oath, as required by Section 340 (2), Cr.P.C. The purgation of the prosecution witnesses was conducted who were found `Adil'.
17. After hearing the learned counsel for the parties, the District Criminal Court passed the impugned judgment of conviction and sentence against all appellants as detailed in Para-(1) vide its judgment dated 23.9.2010 which has been assailed by the convict-appellants whereas a reference has also been sent by the trial Court for confirmation of the death sentence. As both the appeals and reference relate to the same incident and between the same parties therefore, these are consolidated and being disposed of by this single judgment.
18. Raja Muhammad Saghir Khan, advocate, the learned counsel for the convict appellants argued that a fake case has been registered against the accused who had gone to hot spring ( ) for a visit but have been falsely implicated in the murder case. The learned counsel further contended that oral evidence or any other evidence of scientific nature does not support the prosecution version.
19. He also submitted that according to the FIR, unknown accused committed the occurrence but neither their stature nor features were described in the F.I.R. The learned counsel also agitated that the trial Court fell in grave error while awarding the sentence of Hadd because Nisab is not complete to impose the sentence of Hadd. According to him, Siddiqa Bibi (P.W.2) is victim of theft but she was not produced by the prosecution therefore, the case of the appellants falls under Section 20 of the Act. He pointed out that according to prosecution nothing was stolen thus, sentence under robbery can also not be awarded to the accused-appellants. The learned counsel maintained that F.I.R. Exh.PH which was registered on the basis of the statement of Aamir Tanvir complainant Exh.PA, during the investigation of the case therefore, it cannot be relied upon, and it can be taken only as a statement recorded under Section 161, Cr.P.C. The learned counsel laid great stress upon the point that according to version of P.Ws. it has been proved on the record that F.I.R. was not recorded at 8:30 pm. The learned counsel pointed out that according to site plan Exh.PX the P.Ws were not aware of the occurrence and none of the P. Ws has mentioned about site plan Exh.PX prepared by I.0 whereas site plan Exh. PG is a true copy of Exh. PX thus, it makes the prosecution story doubtful and suspicious. The learned counsel further maintained that in the F.I.R. only complainant has been recorded as injured and non-else. The learned counsel laid great stress upon the point that according to statement of Ishtiaq Ahmad (P.W.5), the deceased remained conscious up to Dan-gali bridge but his dying declaration was not recorded therefore, the prosecution version is not worthy of any credence. The learned counsel also criticized the process of identification parade and submitted that the statement of Guftar Hussain SDM is not reliable because on 10.2.2010 accused were shown to all the P .Ws and their movie was also prepared. The learned counsel pressed into service the submission that at the time of occurrence power was off but P.Ws have stated that a generator was providing light. The learned counsel vigorously argued that all the P.Ws are interested and closely related to the accused therefore, their evidence cannot be taken into consideration. The learned counsel also submitted that manner of the occurrence has not been proved and medical evidence does not support the oral version. The learned counsel further contended that all the P.Ws. have made numerous improvements in their deposition therefore, their evidence cannot be relied upon. The learned counsel stressed upon the point that recoveries are fake and fictitious and the Arms Expert has not supported the version of the prosecution that the deceased sustained an injury of .30-bore pistol rather according to his report the bullet extracted from the body of the deceased is of 9mm pistol and not of a .30-bore pistol. The learned counsel also argued that Siddiqa Bibi (P.W.2) was an important witness but she was abandoned therefore, it will be presumed that she was not supporting the prosecution story. The learned counsel argued with vehemence that the appellants are not previous convicts and the offences fall in the domain of 'Qatal-e-Khata' which has also not been proved by the prosecution therefore, the accused-appellants may be acquitted of the charge. In support of his contention, the learned counsel cited numerous authorities, Mirza Muhammad Nisar, the learned counsel appearing on behalf of the complainant controverted the arguments raised by the learned counsel for the convict-appellants and submitted that the prosecution has produced two male eye-witnesses Aamir Tanvir and Naveed Hussain alongwith one female eye-witness Andaleeb Tariq. Ishtiaq Ahmad and Asif Karim P.Ws, have also been produced who reached the spot soon after the occurrence. According to learned counsel, Siddiqa Bibi (P.W. 2) wife of the deceased was observing `Iddat' therefore, could not appear before the trial Court, even otherwise, it is the prerogative of the prosecution to produce as many as witnesses which it thinks proper. The learned counsel further contended that Aamir Tanvir (P.W.1), Andaleeb Tariq (P.W.3) and Naveed Hussain (P.W.4). have fully supported the prosecution story and in spite of lengthy cross-examination their deposition could not be shattered by the defence. The learned counsel pointed out that by style of cross examination and the suggestions put to Aamir Tanvir, the time of occurrence, the presence of Aamir Tanvir (P.W.1) and Mat. Andaleeb Tariq (P.W.3), the presence of deceased Tariq, the injury of Tariq deceased by firing a shot, the manner of occurrence, the act of chasing the accused persons by Aamir Tanvir and on the day of occurrence the presence of the accused-appellants have been admitted by the defence. The learned counsel also pointed out that the suggestions put to Naveed Hussain P.W.4 by the defense also shows that defence has admitted the presence of deceased and Abdur Rehman accused at the place of occurrence and the injury of the deceased by a fire arm. Similarly, the style of suggestions put to Mat. Andaleeb Tariq shows that defence has admitted the presence of Tariq deceased, Aamir Tanvir complainant and Naveed Hussain P. Ws. at the time of occurrence and place of occurrence and the fact that deceased was done to death by a lethal weapon. The learned counsel fully supported the impugned judgment and submitted that two adult `Adil' Muslim witnesses have fully proved the prosecution story. Furthermore nothing has been stolen therefore, the question of victim of theft does not arise even otherwise victim was Tariq deceased. The learned counsel emphasized on the point that on the night of occurrence, three accused persons except Gulfam were arrested by Kale-Dub police whereas Gulfam was arrested from Rehman Bridge. Furthermore in the light of , the evidence of Gulfraz Ahmad and Muhammad Amjad P.Ws. all the accused-persons were seen on the day of occurrence. Similarly, Naveed Hussain (P.W.4) has deposed that soon after the occurrence, he had seen Gulfam fleeing away from the spot. The learned counsel further maintained that according to the report of the Arms Expert, both the bullets were found fired by the pistol recovered at the instance of Abdur Rehman, accused but the fire-arm expert did not explain that how the bullet extracted from the body of the deceased was fired from a pistol of 9mm.
20. According to the learned counsel the prosecution version lends more strength by statement of Dr. Abdul Qayyum (P.W.27) whereby he deposed that the bullet shown to him in the trial Court is not that one which he had extractea and handed over-to the police. The learned counsel further submitted that the P.Ws. have not made any improvements rather they have given the explanation of their statements recorded under Section 161, Cr.P.C. The learned counsel finally argued that inmates of the house are the best witnesses in the circumstances of the case therefore, their evidence cannot be discarded on the basis of relationship, especially when they are not animus to the accused-persons. The learned counsel defended the impugned judgment on all counts and submitted to uphold the same. He also cited certain authorities in support of his arguments.
21. Mahmood Hussain Chaudhary, the learned Assistant Advocate General appearing on behalf of the State has fully owned and supported the arguments raised by the learned counsel for the complainant.
22. We heard the arguments of the learned Counsel for the parties and examined the record with care, The case of the prosecution is basically based upon the evidence of Aamir Tanvir (P.W.1), Andaleeb Tariq (P.W.3) and Naveed Hussain (P.W.4), eye-witnesses, and the evidence of Ishtiaq Ahmad (P.W.5) and Asif Karim (P.W.6), who reached the spot soon after the occurrence, alongwith medical evidence and evidence of the recoveries.
23. Let us now take up the ocular version.
24. Aamir Tanvir (P.W.1) has categorically supported the version of the prosecution and deposed that on 9.2.2010 at 7:50pm, as soon as he after offering prayers of Esha in the mosque entered the house, one of the accused pushed him in the house and while beating, three accused persons took him into the T.V lounge of the house where his father-in-law Muhammad Tariq deceased, his mother-in-law Siddiqa P.W. and his wife Andaleeb Tariq were present. Naveed Hussain servant was standing in the kitchen. All the three accused-persons, armed with pistols threatened them to hand over whatever they have got. When his father-in-law caught hold of the accused of long stature whose name is Abdur Rehman, he inflicted an 'injury with the butt of the pistol which hit the deceased on his head whereas the accused of middle stature inflicted injuries to his mother-in- law which hit her on her hand and head. Muhammad Iqbal accused caused an injury which hit him on his head. His father-in-law caught hold of Abdur Rehman accused while grappling with each other they fell down. Abdur Rehman accused fired two shots one hit his father-in- law on his abdomen and other on the roof of the house. The third accused Yaseen kept standing in the Courtyard. On making hue and cry the accused fled away. He further stated that he pulled out a pistol from the other room and fired a shot outside of the gate in the dark but the accused fled away. Ishtiaq Ahmad and Asif Kareem P.Ws. arrived at the spot soon after the occurrence. Tariq was taken to DHQ Hospital who was referred to Rawalpindi. The police recorded his statement Exh.PA in DHQ Hospital. His injury form alongwith injury form of Mst. Siddiqa Bibi was also prepared and they were referred to doctor.
25. It is pertinent to note here that style of suggestions put to Aamir Tanvir (P.W.1) appearing on page 15 and 16 of his statement reveals that defence has admitted the following facts:--
(i) The time of occurrence,
(ii) The place of occurrence.
(iii) The presence of Tariq deceased, Aamir Tanvir P.W.1 and Mst. Andaleeb P.W.3 at the place of occurrence.
(iv) The manner of occurrence.
26. (v)The deceased sustaining injuries of a fire-arm.
27. (vi)The presence of the accused-persons at Kotli on the day of occurrence.
(vii) The fact of chasing the accused-persons by Aamir Tanvir.
(viii) The source of light at the time of occurrence.
28. Mst. Andaleeb Tariq (P.W.3) has fully supported the deposition of Aamir Tanvir who stated that on 9.2.2010 at 7:45pm, on hearing the noise, she, her mother, father and servant Naveed Hussain found two dacoits entering inside and one staying in the Courtyard. They firstly gave beating to her husband. The blood was oozing from his injuries. Thereafter an accused of long stature caught hold of her father and inflicted an injury with a pistol which hit her father on his head. When her mother got up to rescue her father the accused of small stature caused injuries with the butt of a pistol, which hit her mother on her hand and head whereupon her mother fell down and got unconscious, whereas she was squared and sat down at a sofa with her minor son. The accused of long stature, fired two shots with a pistol, one of them hit her father on his abdomen whereas the other shot hit the roof of the house. The accused were speaking Punjabi language who fled away after the occurrence. Soon after the occurrence Ishtiaq Ahmad and Asif Karim P.Ws. arrived at their house and took her parents to the hospital but her father was referred to Rawalpindi who while going to Rawalpindi succumbed to the injuries on his way. She also recognized all the 'accused persons in the trial Court. The style of suggestions put to Mst. Andaleeb Tariq (P.W.3) shows-that the defense has admitted the source of light, the presence of Naveed Hussain (P.W.4) and Aamir Tanvir (P.W.1) at the place of occurrence. It has been further admitted that Tardq deceased was done to death by firing of a lethal weapon at the place of occurrence.
29. Naveed Hussain (P.W.4) has fully corroborated the evidence of Aamir Tanvir and Andaleeb Tariq P.Ws. and also identified the accused persons in the trial Court. He further stated that he also saw Gulfam accused at the time of occurrence while running away outside of the house towards the road-side. The style of suggestions put to Naveed Hussain (P.W.4) also shows that defence has admitted the source of light, presence of deceased, Abdur Rehman accused and Aamir Tanvir complainant at the place of occurrence.. The aforesaid suggestion reads as under:-- {{URDU TEXT}} A close scrutiny of the above mentioned evidence coupled with the style of cross-examination and suggestions put to the eye-witnesses shows that it has been amply proved on the record that on the fateful night, all three appellants Abdur Rahman, Muhammad Yaseen and Muhammad Iqbal entered the house of the deceased with the intention to commit 'Harrabah' whereas Gulfam- appellant remained outside of the house who is a principal accused because he hatched the conspiracy, planed the whole occurrence and brought the accused from Punjab. Gulfam accused has been living in Kotli prior to the occurrence and has been .doing business while his father was an Imam of the mosque who also knew that the deceased is a wealthy person who was doing the business of gold.
30. The above stated evidence gets more strength from the statements of Ishtiaq Ahmad (P.W.5) and Asif Karim (P.W.6), who arrived at the spot soon after the occurrence, saw three unknown persons rushing from the ground and found Tariq, Tanvir and Mst. Siddiqa in injured condition. Ishtiaq Ahmad P.W further deposed that Tariq, deceased, told him the whole story while he was taken to Rawalpindi for treatment but he succumbed to the injuries while on his way to the hospital. He also witnessed the recovery of bloodstained clothing of the deceased.
31. Ch, Asif Karim (P.W.6) further corroborated the prosecution Ow and fully supported the deposition of Ishtiaq Ahmad that he received a call from the deceased and went to the place of occurrence where the deceased told him the whole story and he found Tariq deceased and Mat. Siddiqa Bibi in injured condition. He along with Ishtiaq Ahmad also saw three persons running away from the House of Tariq towards the ground. He further witnessed the recovery of two empties from the place of occurrence. He also identified all the three accused-persons in the trial Court except Gulfam accused.
32. Muhammad Zakir ASI Police, In-Charge Police Post Kaladab, (P,W,24), deposed that on 9.2.2010 at about 8:15pm he received a call from the control room and he was told that three unknown persons, who were speaking Punjabi language, while attempting to commit dacoity have fired shots upon Tariq Jeweler. One of them was of long stature with small moustaches and the other was of small stature with small beard. On receiving information, he alongwith Ishtiaq Ahmad and Sohbat Ali Police Constables started searching the accused-persons and at about 10:30pm he found a white car numbering 5464/LEA and caught hold of accused Abdur Rehman, Muhammad Yaseen and Muhammad Iqbal. Abdur Rehman was injured and his dress was stained with blood.
33. The dress of Muhammad Iqbal was also stained with blood. The witness identified all the three accused-persons in the trial Court. Gulfam accused was arrested from Rehman Bridge Kotli travelling by a bus.
34. Gulfraz (P.W.17) testified that he knows Gulfam accused for the last 5/6 years who has been doing business of selling milk and Yogurt. He further stated that on 9.2.2010 he went to the bus-stand for personal work when he found Gulfam alongwith other three persons boarded in a white coloured car. Abdur Rehman accused was driving the car. He invited Gulfam for a cup of tea but he replied that he is in hurry.
35. Anjum Muhammad Amjad (P.W.18) deposed that he is working as an electrician. He knows Gulfam accused because 6/7 years prior to the occurrence when he was learning the job of electrician from Haji Auto Electrician, Gulfam also joined him to learn the job for 3/4 months. On 9.2.2010 at about 2:30pm a white colour car arrived at his shop, Gulfam accused was sitting on the front seat, who alighted and met him. He was accompanied by other three persons, who are also present in the Court. Diver asked him to repair the headlights, which he repaired but did not charge the price and the labour. He also offered them a cup of tea from a hotel situated opposite side of the shop.
36. Besides the ocular version and the evidence discussed above, the strong corroboratory evidence has amply supported the prosecution story. Before commenting upon the details of confirmatory evidence, it would be pertinent to note here that the conviction can be based on the deposition of eye-witnesses provided it is found dependable and worthy of credence but the Courts always look for the supportive evidence as a Ture of caution to exclude involvement of an innocent person. The confirmatory evidence can be produced by any circumstance which satisfies the mind of Court that the witness is reliable and his deposition is confidence inspiring. The above stated principle was enunciated in the case reported as Zahir Hussain Shah V. Shahnawaz Khan & 3 other (2000 SCR 123), which was again affirmed in a case titled Muhammad Tahir Aziz V. The State & another (2009 SCR 71) as under:-- "Now the question arises whether the evidence of four eye-witnesses finds corroboration from any other evidence? As far the corroboration is concerned, it does not mean that corroboration should be from an independent witness, but anything in the circumstance satisfying the Court that each interested witness has spoken truth, is sufficient for corroboration. It is not necessary that the corroborative evidence should also be of same probative force. The corroboration can be from any circumstance satisfying the Court that the eyewitnesses have spoken truth."
37. Coming to the instant case, Dr. Abdul Qayyum (P.W.27) testified the postmortem report Exh.PU and found the bullet injury exactly on the same part of the body of the deceased at which the eyewitnesses narrated. According to him, bullet injury is the cause of death of the deceased, which damaged the intra abdominal organ leading to multiple organ system failure. The bullet was recovered from right flank.
38. At this stage we also want to resolve an objection raised by the learned Counsel for the defence to the effect that according to postmortem report diameter of the injury has been recorded 2x1 and 1 1/2cm with tattooing whereas if a shot is fired with a .30-bore pistol, the diameter of injury should have been larger than recorded in the postmortem report and furthermore according to report of the Arms Expert the bullet extracted from the body of the deceased was found to be fired by pistol of 9mm and not a pistol of .30-bore as alleged by the prosecution therefore, the medical evidence and the evidence of Arms Expert cannot be relied upon. In support of his argument the learned Counsel cited NLR 1999 Criminal 415, 2007 SCM R 1812 and 2010 YLR 2875.
39. We have examined the above cited authorities. These are beyond the controversial issue and have nothing common with the facts of the preset case. For instance, it has been held in Sheral alias Sher Muhammad V. The State (NLR 1999 Criminal 415) that according to the eye-witness the deceased had been fired from a close range and absence of some charring or blackening around wound of deceased rendered ocular evidence in conflict with medical evidence.
40. In Barka Ali's case (2007 SCM R 1812), it was observed that the blackening on dead body would appear in case received injury from the distance of 4 feet. Thus, oral evidence appearing inconsistent with medical evidence cannot be accepted.
41. In Fazl Abbas alias Foju's case 2010 YLR 2875) it was opined that the bullet recovered from the body of the deceased was not proved to have been fired from the gun allegedly recovered on the disclosure of the accused. The eye-witnesses resiled from their statements. The cause of death of deceased was not disclosed by doctor in his postmortem examination report; therefore, it was held that the medical evidence had not supported ocular testimony, whereas in the instant case the perusal of the postmortem report shows that at the time of postmortem the doctor, who conducted the postmortem, found tattooing and stitches marks because it is the case of the prosecution that soon after the occurrence deceased was taken to DHQ Hospital Kotli Rothfor treatment therefore, the shape of the injury was changed and deceased succumbed to the injuries while his way to the Rawalpindi Hospital. Furthermore, Dr. Abdul Qayyum (P.W.27) has categorically explained that the bullet, which was extracted from the body of the deceased, is not that which has been produced before the Court because he packed the bullet himself, put it into the bottle and marked it with a black marker but the sign of marker is not present on the bullet produced before the Court therefore, the statement of the doctor cannot be disbelieved. As far as the report of Arms Expert Exh.PU is concerned, it has been recorded that both the bullets were found to be fired from .30-bore pistol. It may be mentioned here that in the light of the ocular version and sufficient corroboratory evidence, report of Forensic Science Laboratory cannot demolish the case of the prosecution.
42. The site plan Exh. PG and its keynotes Exh.PG/2, the injury form of Tariq deceased Exh.PC alongwith medical examination report Exh. PC/3 recorded by Dr. Gohar Latif (P.W.26), the injury form of Aamir Tanvir (P.W.1) Exh.PD alongwith medical examination report Exh.PD/3 recorded by Dr. Gohar Latif (P.W.26), injury form of Mst. Siddiqa Begum Exh.PE (P.W.2), medical examination report Exh.PA/3 recorded by said doctor (P.W.26), the injury form of Abdur Rehman accused Exh.PY, Muhammad Iqbal accused Exh.PY/1 and Muhammad Yaseen Exh.PY/2 alongwith blood stained clothing of the deceased, two empties taken into possession from the place of occurrence, weapon of offence a .30-bore pistol recovered at the pointation of Abdur Rehman accused alongwith magazine having eight live rounds alongwith other seven magazines having 65 live rounds, recovery of .30-bore pistol from Muhammad Iqbal accused alongwith four live rounds, recovery of .30-bore pistol from Muhammad Yaseen accused having four rounds, recovery of Car No, 5464 LEA used during the occurrence and the inquest report Exh.PT further corroborates the ocular version. The report of chemical examiner Exh.PAA also confirms that clothing of deceased Tariq and clothing of Abdur Rehman and Muhammad Iqbal accused alongwith cotton taken into possession from the place of occurrence were found stained with blood.
43. The learned Counsel also took pains to substantiate the contention that the evidence of site plan Exh. PX and Exh. PG is not reliable. Suffice to say that site plan is not a substantive piece of evidence and, cannot be used to contradict or discard unchallenged ocular testimony. The only purpose to prepare the same is to appreciate or explain the evidence on record and cannot be given preference on direct evidence of credible eye-witnesses. This view finds support from a case titled
(1) Arshad Mahmood and others Vs. The State and others. (2). Muzaffar Begum Vs. Tariq Mahmood and others. (2010 SCR 75).
44. The argument of the learned Counsel for the appellant is not tenable that the recovery evidence is not reliable because all the recovery witnesses are closely related to the complainant and a lone witness was produced for each recovery whereas the other one was abandoned, therefore, it cannot be taken into consideration. Suffice to note that recoveries of incriminating material have been amply proved by the testimony of Ishtiaq Ahmad (P.W.5), Asif Kareem (P.W.6), Abu Zar (P.W.7), Zulfiqar Hussain (P.W.8), Muhammad Idrees (P.W.13), Muhammad Ibrar constable police (P.W.15), Abdur Razzaq (P.W.11) and Abdur Rauf S.I Investigation (P.W.32).
45. Our aforesaid view finds support from a case titled as Niaz Ahmad Vs. The State and 2 others (2008 SCR 326), that the recovery can be proved by single witness. In the reported case, the recovery of gun was relied upon which was witnessed by a brother of the deceased and S.H.O.
46. In Muhammad Akram's case (2006 SCMR 156), the, recovery of "Bugda" was relied upon, attested by the father of the deceased, whereas in the present case the recovery of each article has been corroborated by the P.Ws, and I.O. It may be pointed out here that "A Police officer is a competent witness like any other person and his testimony cannot be discarded only on the ground of being a police officer." This view is fortified from a case reported as Qamar Shahzad & 3 others V. The State (2010 SCR 113).
47. As far as the question of related and interested witnesses is concerned, it is an admitted fact on the record that the eye-witnesses are closely related to the complainant and some of recovery witnesses, whereas Asif Kareem (P.W.6), Patwari, doctors as well as the police officials are independent witnesses.
48. It is by now celebrated principle of criminal jurisprudence that "the mere relationship is no ground for discarding the evidence of a prosecution witness unless and until his enmity is established with the accused person." (2009 SCR 71).
49. In the instant case, as recorded above, the presence of accused-appellants alongwith the deceased and the eye-witnesses has been admitted by the defence. The F.I.R was expeditiously registered. The chance of fabrication of a fictitious story of occurrence after deliberation or consultation is ruled out altogether. The F.I.R is straightforward based upon genuine facts of the case. Tariq deceased was a known wealthy jeweler and commission of Harabah in the early hours of the evening made the hearts of people engulfed with fear fright and horror. The police officials also showed their efficiency and arrested the appellants from Kala-dub police post and Rehman Bridge Kotli, who were endeavoring to make good their escape after having killed an innocent person and severely injuring his family. The arrest of accused appellants and all other incriminating evidence furnishes cogent and solid proof of their crime.
50. It may be mentioned here that in the circumstances of the case the evidence of inmates of the house is natural evidence which has to be accepted if not otherwise disbelieved. As held in Misri's case (1998 SCR 337).
51. The defense miserably failed to establish any enmity between the accused and the P.Ws. They do not nurse any grudge, grouse, malice or spite against the accused persons to falsely implicate or substitute accused persons in the commission of Haraba and murder in' place of real culprits.
52. Therefore, the mere relationship of the witnesses with the deceased or complainant is not sufficient to brush aside their evidence. Similarly, strict compliance of Section 103,Cr.P.C. is not necessary in case of recovery made by Police and also relationship with the witnesses of recovery memos. is no ground to reject their deposition. (2001 SCR 240) and (2010 SCR 113).
53. Now we advert to another objection raised by the learned Counsel for the defense that Mst. Siddiqa Bibi being an important witness was not produced before the trial Court, therefore, it would be presumed that if she was produced, she would have been unfavorable to the prosecution under Article 129, The Qanoon-e-Shahadat Order, 1984. In this regard, the learned Counsel referred to us the following authorities:
1. 1976 Supreme Court cases (Criminal) 629.
2. 2009 P Cr.LJ 604.
3. 2010 SCM R 385: On the other hand, the learned Counsel for the complainant submitted that Mst. Siddiqa (P.W.2) is widow of the deceased who was observing `Iddat' therefore, she could not appear before the trial Court-which was proceeding with the case on day to day basis.
54. It has been held in Ishwar Singh Vs. State of U.P [1976 Supreme Court cases (Criminal) 629] that non-examination of some ' witnesses would not matter if the witnesses examined unfolded the prosecution case fully whereas in the instant case three eye-witnesses have testified the prosecution version in details.
55. In Said Muhammad Vs. The State (2009 PCr.LJ 604), it has been observed that if material witness had been withheld, an adverse inference should have been drawn.
56. In Muhammad Rafiq and others' case (2010 SCM R 385), it has - been opined that if best evidence is withheld then it can fairly be presumed that such party has some sinister motive behind it but in the instant case widow of the deceased was withheld because she was observing `iddat' therefore, the above mentioned case law do not render any help to the defence particularly, in the light of Abdul Aziz's case 2000 SCR 375 being referred in the coming part of the judgment.
57. It is pertinent to note here that the occurrence took place on 9.2.2010 and challan was presented before the trial Court on 8.3.2010. After framing the charge, the trial commenced on day to clay basis; therefore, Mst. Siddiqa Bibi (P.W.2) could not appear before the Court because she was observing `Iddat' period as widow of the deceased. Even otherwise, it is prerogative of the prosecution to produce any number of witnesse. In the present case, the prosecution has produced three eyewitnesses; therefore, on the basis of non-production of Mst. Siddiqa Bibi, no adverse presumption can be taken against the prosecution. It has been observed in case titled Ghulam Hussain V. The State (PLD 1978 Lahore 2010) as under-- "The learned Counsel then argued that a number of other witnesses, namely Mushtaq Hussain, Muhammad Hussain, Yara and Muhammad Shafi who admittedly were eye-witnesses had not been produced. We are of the opinion that under the circumstances of the case no presumption under Section 114 of The Evidence Act can be drawn against the prosecution since it appears that the evidence of three witnesses P.W.8, P.W.9 & P.W.10 being sufficient for proving the guilt of the appellant, it was unnecessary to burden the record with similar evidence of other fellow prisoners of the appellant."
58. The aforesaid principle was also affirmed in Abdul Aziz's case (2000 SCR 375) in the following manner: "After hearing the respective contentions of the learned Counsel for the parties and perusing the record, it may be stated at the very outset that it is not the duty of the prosecution to produce each and every witness cited in the calendar of challan. It depends on the will of the prosecution to produce such witnesses whom it deems necessary for proving the guilt of the accused. However, if the evidence of any of the witnesses is so material that in absence of it no just decision could be pronounced by the Court, the Court is competent to summon such witness and record his statement."
59. The next objection raised by the learned Counsel for the defense is that the F.I.R. is not reliable because it has been filed after investigation and deliberation even otherwise the features of the accused-persons have not been mentioned in the F.I.R. The aforesaid argument of the learned Counsel is without any force because in the F. I. R no one was nominated and the complainant only deposed about three unknown persons, who entered the house but soon after the occurrence he has given details of their features and statures in his statement recorded .under Section 161,Cr.P.C.
60. As far as the question of fabrication is concerned; it has also no substance because none of the, accused was nominated and the prosecution came to know about the accused-persons when they were arrested from Kaladab and Rehman Bridge Roth; therefore, it was not incumbent upon the complainant to give details of the occurrence because the F.I.R is only an information of an offence on the basis of which, Police starts investigation. Therefore, the argument being misconceived is repelled.
61. The aforesaid view finds support from State through Muzaffar Hussain Shah's case (2000 PCr.LJ 602) and Qamar Shahzad & 3 others' case (2010 SCR 113).
62. The learned Counsel has also criticized the statements of the P.Ws on the ground that they have made numerous improvements; therefore, their statements are not reliable. It will not be out of, place to mention here that there is a lot of difference between improvement and an explanation.
63. The P.Ws have explained their statements recorded under Section 161, Cr.P.C., therefore, these explanations cannot be dubbed as improvements.
64. It has been held in Javaid Azad & 2 others' case [1997 PCr.LJ (SC AJK) 1865] at page 1875 of the report as under: "A part of the statement or event not. finding place in statement under Section 161,Cr.P.C., but being in the statement before the Court, is not an improvement, but a substantiation of the case, which, if not being contrary or against the earlier statement, is reliable without any blemishes. There was no ground to hold the witnesses as not reliable or version as doubtful."
65. It is also admitted position of law that mere discrepancies or some variations appearing in the statements of P. Ws do not render the case of prosecution doubtful because the eye-witnesses have been named in the F.I.R, which was promptly recorded. (2001 SCR 240).
66. The next aspect relates to the point of identification parade. In this regard, the learned Counsel argued that the, statement of Guftar Hussain SDM (P.W.28) is not reliable because on 10.2.2012 the accused were shown to the P. Ws and their movie was prepared but in support of the argument no evidence was brought on record, whereas a careful examination of the statement of Guftar Hussain (P.W.28) shows that it is worthy of credence and confidence inspiring and no illegality has been done by the Magistrate during the process of identification parade. In this context, the learned Counsel cited the following authorities:--
1. 1992 SCM R 2088;
2. 2008 P.Cr.LJ 831;
3. 2008 YLR 2507; 4 . 2008 SCM R 1221;
5. 2010 YLR 2950;
6. 2010 PCr.LJ 1248;
7. 2011 SCM R 683; But the above cited authorities are quite distinguishable from the facts of the present case; therefore, these do not render any help to the defense. For instance, in Akhter Ali alias Sabah & others' case (1992 SCM R 2088), it has been opined that a witness must disclose the context in which he identified the accused whereas in the present case, the P. Ws have stated that in context of murder they have identified the accused. Similar principle was enunciated in Muhammad Sajjad's case (2008 P.Cr.LJ 831) that a witness must pin point the role played by the accused, as held earlier the P.Ws have categorically stated that they have identified the accused in case of murder.
67. In Ghulam Shabbir Ahmad & another's case (2011 SCM R 683), it has been observed that the accused was arrested after two years of the occurrence; therefore, the evidence of identification parade was not relied upon.
68. In Hazaro & another's case (2010 PCr.LJ 1248), it was held that the prosecution case was based only on identification test parade of accused, as P.W. picked up the accused without describing the role played by them; therefore, the benefit of doubt was extended to the accused.
69. It needs to be emphasized that when the eye-witnesses recognized the accused-persons in the trial Court, the evidence of identification parade loses its importance.
70. The learned Counsel laid great stress upon the point that the offence of Haraba has not been proved because under Section 7 of the Act, Nisab is not complete and furthermore the statement of victim of theft has-not been recorded; therefore, the case of the accused-persons would fall under Section 20 of the Act but again nothing has been stolen, on this account, the accused- appellants cannot be sentenced for the offence of robbery or dacoity; therefore, they may be acquitted of the charge. In support of argument reliance was placed upon AIR (32) 1945 Sindh 38.
71. On the contrary, the learned Counsel for the complainant submitted that two male Muslim adult witnesses Aamir Tanvir and Naveed Hussain have been produced alongwith a female witness Andaleeb Tariq; therefore, Nisab is complete. As no theft has been committed; therefore, nobody in the present case is victim of theft, even otherwise the victim of theft Tariq has been murdered.
72. We have given our due consideration to the argument and reached the conclusion that the contention of the learned Counsel for the complainant appears to be well founded and requires serious consideration. The prosecution has produced two Muslim adult male eye-witnesses namely Aamir Tanvir' (P.W.1) and Naveed Hussain (P.W.4) alongwith a female eye-witness Andaleeb Tariq (P.W.3); thus, proof of Haraba during which a murder was committed has been completed. It may be mentioned here that the P.Ws have been found' (Adil' during purgation.
73. As far as the question of the statement of the victim is concerned, nothing was stolen; therefore, no-body is a victim of theft, even otherwise Haraba was committed to snatch the property of Tariq deceased; therefore, he was the victim of Haraba. In this regard, as far as an authority cited by learned Counsel for the defense is concerned, cannot be relied upon because the case is being tried under special Act, which has its own specific procedure for etisposal of the cases. Our aforesaid view finds support from an unreported case of Apex Court of AJ&K (Criminal Appeal No, 22/2005 titled Abdur Rehman & another V. Muhammad Mushtaq & another dated 15.2.2007), whereby the death sentence was awarded to the accused in an offence under. Section 17(4)EHA by the trial Court which was altered into the sentence of 10 . years under Section 392, APC by this Court but the Apex Court restored the judgment of the trial Court and convicted and sentenced the accused-respondent to death; therefore, the argument of the learned Counsel for the convict- appellants is misconceived and without any substance.
74. A critical analysis of the prosecution evidence and the case law lead 'us to an irresistible conclusion that all four accused-appellants assembled and hatched a conspiracy to commit Haraba at the house of Tariq, deceased. All of theme actually and physically participated in the commission of offence with prior concert in pursuance of prearranged plan; therefore, each of such accused is liable for the act as if he perpetrated it alone. In such kind of cases the moral culpability of each accused is clear and identical, thus, in an organized crime whereby Gulfam accused brought the dacoits and murderers from Pakistan, the Courts are duty bound to eliminate such criminal minded people from the society, therefore, following the famous principle of vicarious liability that those who stand together, must fall together, none of the accused can be allowed to raise a plea that he was merely present at the spot or that the part assigned to him was insignificant. No plausible explanation in defense has been offered by the accused. The mere denial of charge would not stand them in good stead without cogent evidence in defense.
75. Now the question arises whether the punishment of death under Section 17(4)EHA alongwith other sentences have rightly been awarded to the appellants? It is well settled principle of law that where a case under Section 17(4) of the Act is proved against the accused-persons beyond reasonable doubt, then the normal penalty of death has to be imposed because in such like cases leniency cannot be shown and wanton act of cruelty deserves to be punished severely and appropriately.
76. In view of the aforesaid position, the evidence of the witnesses is wholly reliable. They do not have any adverse interest against the convict-appellants and their evidence is free from all sorts of contradictions and pollution. The prosecution has successfully brought home guilt to the appellants. No extenuating circumstances are available on the record. Therefore, we are satisfied with the sentences passed by the trial Court, which do not suffer from any illegality, manifest error or perversity.
77. The upshot of above discussion is that we dismiss both the appeals filed by the convict-appellants.
78. The death sentence awarded to the convict-appellants is confirmed and the murder reference is answered in affirmative. A copy of the judgment shall be annexed with other relevant files.