SALAHUDDIN MIRZA, J.---Co-accused Sajan has filed separate Appeal No.24/K of 2006 which is also being disposed of through this common judgment.
2. This appeal is directed against the judgment dated 4th April, 2006 whereby learned Ist Additional Sessions Judge, Mirpurkhas, has convicted all the appellants under section 396, P.P.C. And has sentenced them to life imprisonment with fine of Rs.20,000 each and compensation of Rs.50,000 each or to suffer simple imprisonment for six months in default of payment of fine.
3. These criminal proceedings were initiated by complainant Naeem Ahmad by lodging F.I.R. No.38 of 2000 at Police Station Mirpurkhas at 0430 hours on 7-5-2000 in which he stated as follows:- He along with his family and father was residing on the ground floor of the house in Johar Colony Mirpurkhas whereas Wazir Ali was residing on the upper storey of the house. On the morning of that day (7-5-2006), he and his father were sleeping in the verandah while the rest of the family was sleeping in the rooms when at about 0430 hours someone awoke him and he saw that three persons, one somewhat tall and the other two with average height, who were armed with daggers were standing near his cot. They threatened him with death in case he raised alarm. They took two golden bangles and gold kangan from under his pillow and then broke the lock of the room but this caused noise and at the same time alarm-clock of his father started ringing whereupon his father Ali Sher woke up and switched on the light and came towards him and at this the culprits got panicky and ran towards the gate of the house and the complainant and his father raised alarm and, as a result, Wazir Ali rushed down from the upper storey. At this stage, one of the culprits who had with him a pistol as well, opened fire which hit Ali Sher in the belly and he fell down and in the confusion that followed the culprits' managed to escape through the main gate. On hearing the fire-shot and the noise of commotion his neighbours also came rushing, including his uncle Dr. Ghazi Khan, who were apprised of what had happened. The complainant then took his injured father to the hospital with the help of some of those who had gathered at his house but he succumbed to his injuries in the hospital. Leaving others with the dead body he then went to the police station and lodged the report in which he disclosed that the looted property consisted of 2 gold kangans weighing six tolas and four golden bangles, also weighing six tolas.
4. During the course of investigation, A.S.-I. Muhammad Sadik (P.W.11) arrested appellant Gul Muhammad on 26-5-2000 and on 2-6-2000 he arrested appellants Wali Muhammad and Sajan, besides co-accused Pir Bux who expired during the course of trial while appellant Gul Machi was arrested in this case on 27-10-2003 from District Jail. Mirpurkhas where he was detained in some other case (answer to Q.No.2 in his 342, Cr.P.C. Statement). On the completion of the investigation, the appellants and co-accused Peer Bux, (who expired during the course of trial) were produced before the learned trial Court on 11-12-2003 which charged them under section 17(4) of the Offence.
Against Property (Enforcement of Hudood) Ordinance 1979 and put them on trial when they pleaded not guilty. The prosecution evidence commenced on 20-2-2004 and, in all, the prosecution examined the following eleven witnesses in support of its case:-- P.W.1 Dr. Muhammad Sajan of Civil Hospital Mirpurkhas who conducted the postmortem examination on the body of deceased Ali Sher on 7-5-2000.
P.W.2 Mrs. Farhat Mehtab, Joint Civil Judge and F.C.M. Mirpurkhas who conducted the identification parade of appellant/accused Wali Muhammad and deceased-accused Pir Bux on 8-6-2000 in which complainant Naeem Ahmad and P.W. Wazir Ali identified them.
P.W.3 Farooaque Leghari, the then Mukhtiarkar & F.C.M. Mirpurkhas who recorded the judicial confession of appellant Gul Muhammad on 30-5-2000 in which he implicated all the co-accused, besides himself and this judicial confession is the only evidence against appellant Sajjan to whom the role of masterminding the crime was assigned.
P.W.4 Complainant Naeem Ahmad who reiterated the contents of the F.I.R. And identified appellant Wali Muhammad and deceased co-accused Pir Bux in the identification parade.
P.W.5 Noor Nabi, cousin of deceased Ali Sher and a neighbour. He is not an eye-witness of the incident but reached the house of the complainant on hearing the commotion and fire-shot and learnt of what had happened.
P.W.6 Dhani Bux. He is a neighbour of the complainant and he also rushed to the house of the complainant on hearing-commotion but by that time the complainant had already taken his injured father to the hospital. He was still at the house of the complainant when the police came there at about 6.30/7 a.m. And secured two empties, one missed and one live bullet and two locks and sealed them and he signed such mushirnama Exh.9/A.
P.W.7 Wazir Ali. He is nephew of deceased and lived in the same house on the upper floor. On hearing the commotion he came downstairs and saw the three culprits two of whom were armed with dagger and one with pistol. He saw deceased Ali Sher challenging the culprits upon which he was fired at by pistol and was hit in his abdomen and fell down. Complainant Naeem gave him further details of the incident. He also went to hospital with the complainant and injured Ali Sher. He then accompanied the complainant to the police station where the F.I.R. Was lodged. He identified Pir Bux and Wali Muhammad during identification parade on 8-6-2000 and also examined them in court when his evidence was recorded on 14-1-2003 (by that date accused Pir Bux was still alive), P.W.8 Dr. Ghazi Khan. He is nephew of the deceased. On learning of the occurrence, he reached Civil Hospital (where he was also serving as Child Specialist). He acted as mashir in respect of the following events: inspection of the dead body of Ali Sher vide Exh.19/A and of 'lash chakas form' and of danishnama vide Exh.19/B & 19/C, of delivery by the doctor to the, police the last worn clothes of the deceased vide Exh.19/D, of handing over the dead body to him vide Exh.19/E, of the arrest of appellant Gul Muhammad Panwar on 26-5-2000 vide Exh.19/F, of the arrest of appellants Wali, Sajjan and deceased accused Pir Bux on 2-6-2000 vide Exh.19/G. He identified in court appellants Gul Muhammad, Sajjan, Wali Muhammad and deceased (Pir Bux who was still alive on 7-10-2004 when this witness was examined in court) as those who were arrested by the police in his presence vide Exh.19/F and 19/G.
P.W.9 Khuda Bux. He acted as musheer of recovery of the following things:
(1) Recovery of hatchet at the instance of appellant Gul Muhammad on 29-5-2000 vide Exh.29/A.
(2) Recovery of a pistol + 4 cartridges and three gold bangles at the instance of deceased Pir Bux on 6-6-2009 vide Exh.20/B.
Recovery of a pistol, 5 bullets and one gold bangle at the instance of appellant Wali Muhammad, also on 6-6-2000 vide Exh.20/D.
P.W.10 Inspector Muhammad Abid. He is the first Investigating Officer. He had recorded the F.I.R. And then visited the place of occurrence and there conducted the usual investigation. He secured two empties of TT Pistol, one missed bullet, one live bullet and two broken locks from the place of occurrence vide Exh.9/A. He was then transferred.
P.W.11 S.-I. Muhammad Sadik. He is the second Investigating Officer. He arrested Gul Muhammad on 26-5-2000 vide Exh.19/F and appellants Sajan, Wali Muhammad and deceased Pir Bux on 2-6-2000 vide Exh.19/G. He also supervised the recoveries from some of the appellants as per details given in the deposition of P.W.9 Khuda Bux, and he produced the report of the Ballistic Expert as Exh.22/A.
5. All the appellants pleaded innocence in their 342, Cr.P.C.
Statements. Gul Muhammad and Sajjan stated that no witness had deposed against them while Wali Muhammad stated that P. Ws. Had deposed against him due to enmity. Appellant Gul Machi claimed that he was implicated at the instance of Muhammad Sadiq Waggan and A.S.-I. Amin Marri.
6. All the appellants have also examined themselves on oath under section 340(2), Cr.P.C.
Appellant Gul Muhammad claimed that he was arrested from Sugar Mill area where he was employed as tractor driver and was tortured at the police station and that he was illegally detained at the police station for a month before being produced before a Judicial Magistrate; where he complained of torture whereupon he was sent to judicial custody [However, this claim is patently false because in the cross-examination of P. W.11 Muhammad. Sadiq, the investigating officer, a suggestion was put io him that .He had arrested Gut Muhammad accused on 26-5-2000 from near slaughter house when he was driving a tractor. It was a compound suggestion. P. W.11 had no doubt arrested Gul Muhammad on this date as stated by him in his examination-in-chief but not from near slaughter house while driving tractor but this suggestion shows that, on the day when P. W.11 was cross-examined, the defence case was also that Gul Muhammad was arrested on 26-5-2000 as per prosecution case and this claim of illegal detention for a month before showing his arrest on 26-5-2000 is an afterthought]. Appellant Wall Muhammad in his statement on oath claimed that he had been arrested by A.S.-I. Amin Marri on 15-5-2000 when he was working in a garden along with Ghulam Muhammad (whom he later examined in, his defence), that he was a witness in a murder case against Saiful Marri and Neksi Marri who were related to A.S.-I. Amin Marri and on that account he has been implicated in this case at the instance of the said Amin Marri.
Appellant Gul Machi claimed that he had been arrested from Sindhri on 15-5-2003 and implicated in this case. He denied that he was arrested from District Jail Mirpurkhas on 27-5-2003 as claimed by the prosecution. Appellant Sajjan in his statement on oath claimed that he had been arrested from the bungalow of Choudhri Rifique and denied that he had master-minded this crime or had provided logistic support to the other appellants and deceased Peer Bux in the commission of this crime.
7. Only appellant Wali Muhammad produced Ghulam Muhammad as his solitary witness in his defence who supported his version that Wali Muhammad was arrested on 15-5-2000 by A.S.-I.
Amin Marti when he and Wali Muhammad were working in a garden. He however conceded in cross-examination that he had not disclosed this fact to anyone.
8. We have heard both the learned counsel of the appellants, learned counsel of the Complainant and learned Prosecutor-General for the State and have gone through the evidence on record with their help.
9. We shall first take up the case of appellant Sajjan. No prosecution witness implicated him.
Nothing has been recovered from him or at his pointation. The only evidence against him is provided by the judicial confession of appellant Gul Muhammad. Here we shall only refer to that portion of the confessional statement which highlights the role of appellant Sajjan and in this context Gul Muhammad stated that he, along with other co-accused went to the house of Sajjan Bheel shortly after 4 p.m. On 6-5-2000 who entertained them and they all stayed there until Sajjan Bheel awoke them all at about 4 in the morning (of 7-5-2000) and then all of them --- minus Sajjan --- went to the house of deceased Ali Sher and committed the crime. There is no other evidence against Sajjan which could corroborate the allegations contained against him in the confessional statement. In this regard, learned trial Judge observes at Page-20 of his judgment as follows:- "Mr. Muzfar All Leghari counsel for accused Sajan's contention is that case against accused Sajan has not been made out and he is liable to be acquitted, has no force because in confessional statement of Gul Muhammad alias Gullu, which is inculpatory, he has implicated accused Sajan for hedging conspiracy."
However, perusal of confessional statement of Gul Muhammad shows that it does not contain any allegation against Sajjan for hatching conspiracy but for 'entertaining other co-accused at his house and providing them shelter for the night (learned Judge has erroneously used the word "hedging" instead of `hatching' in the above quoted paragraph). Even so, the allegation against appellant Sajjan, even if believed, does not make out a case under section 392, P.P.C. Against him but makes out a case of abetment in terms of the third para beginning with the word "thirdly" in section 107, P.P.C. Or a case of belonging to a gang of dacoits in terms of section 400, P.P.C.
However, the fact remains that there is no corroboration of such allegation by any other piece of evidence. Perhaps it was for this reason that learned State Counsel as well as learned counsel of the Complainant did not seriously press the charge against Sajjan and we agree with the learned counsel of appellant Sajjan that his conviction on this evidence cannot be sustained and to this extent the impugned judgment is set aside and Appeal No. 24/K of 2006 is accepted. Sajjan may be released if not required in any other case. We would now revert to the appeal of the other appellants.
10. As we have noted above, the prosecution has marshaled the following evidence against appellants Gul Muhammad, Wali Muhammad and Gul Machi and against co-accused Pir Bux who died during the pendency of the trial and on that account proceedings against him abated.' (a)
Recoveries of pistols, their ammunition and stolen golden ornaments from appellant Gul Muhammad, deceased Pir Bux and appellant Wali Muhammad vide mushirnamaas Exh.29/A, 20/B and 20/D respectively as per details given by the mushir of recovery P.W.9 Khuda Bux in Para-4 of this judgment, (b) confessional statement of Gul Muhammad, (c) identification of Wali Muhammad and deceased Pir Bux through identification parade as well as of others in the court and the evidence of the Ballistic Expert. We shall take up these pieces of evidence in the following lines.
(a) Recoveries
11. P.W.9 Khuda Bux had acted as the musheer of recovery in all these cases. In his cross- examination he was confronted with his evidence recorded earlier in the 13-D case against the accused from whom pistols were recovered but nothing substantial has come on record which could contradict his evidence on any material point. A suggestion was put to him that he was hari of the complainant but he denied it and the defence did not substantiate its claim by producing any evidence to that effect, including the Revenue Record. Learned counsel of the appellants referred us to the judgments reported as PLD 1987 FSC 43 Liaqat Bahadur v. State and 1992 PCr.LJ 842 Ghulam Abbas v. State in support of his argument that the recoveries were not beyond suspicion. However, in the first case, the complainant had admitted that the recovery witness was his cousin and 'was informer of the incident' and was not the inhabitant of the locality where search was to be made and on that account he was not considered reliable but in the present appeal the facts are quite different and these points of law. Do not arise whereas the second case is not on the point of recovery. As such, appellants get no support from these two judgments. We are therefore of the view that the recoveries have been sufficiently proved through the evidence of P.W.9 Khuda Bux and the Investigating Officer who support each other in all material details.
(b) Confessional statement of appellant Gul Muhammad 12. The confession of Gul Muhammad is proved by P.W.3 Farooque Leghari, the then Mukhtiarkar and FCM Mirpurkhas who recorded it on 30-5-2000. A perusal of his evidence shows that he had complied with all the formalities of law before recording the same. The confessional statement itself (Exh.13/B) also shows that such prerequisites as enjoined by section 164(3), Cr.P.C. Had been fulfilled. We also note that learned Mukhtiarkar had also complied with the provisions of section 364, Cr.P.C, before and after recording the confessional statement. The defence counsel in the trial Court was apparently under the belief that signature or thumb-impression of the accused should be obtained on every page of the confessional statement and that stereotyped pro forma for complying with the requirements of section 364, Cr.P.C. Could not be used under the law and the learned Magistrate was cross- examined on these points but it is not mandatory that the Magistrate should obtain signatures or thumb-impression of the accused on every page of the confessional. Statement nor it is prohibited under the law to use stereotyped pro forma to comply with the requirements of section 364, Cr.P.C.
Learned counsel of the appellants also questioned the power of the Mukhtiarkar to record confessional statement but there was no basis of such doubt since P.W.3 Farooque Leghari was First Class Magistrate and per section 164(1), Cr.P.C. Any Magistrate of the first class anywhere in the country can record confessional statement. We have gone through the judgments cited before us by learned counsel of the appellant on the point of confessional statements, namely, 1999 M LD 55 Muhammad Kalam and others, 1998 M LD 288 Gul Jahan v. State, 1982 SCM R 1110 Ashiq Hussain Shah v. Ashiq Ali Shah and others, PLD 1994 SC 314 Javed Masih v. State, 2004 M LD 910 Md. Yousif v.
Muhammad Idris and 1999 M LD 2646 Ali Ahmad v. State but no lacuna in the recording of the confessional statement has been pointed out on the strength of these reported judgments. In fact, abovenoted third judgment (1982 SCM R 1110) is in respect of the evidence of an approver and on the point of extra-judicial confession and it is irrelevant in the present case in which there is neither any approver nor any extra-judicial confession. In the case of Muhammad Pervaiz v. State (2007 SCM R 670) exception was taken to the delay of four days from the date of arrest in recording the confession but it was because it was established by the evidence of the medical officer who had been examined as a defence witness that the accused had been tortured but this is not the case in this appeal and therefore delay of six days cannot be held to vitiate the evidentiary value of the confessional statement. The law laid down in the case of Arif Nawaz Khan v. State (PLD 1991 FSC 53) is that the confession of an accused can be used against the co-accused if it is inculpatory and is corroborated by other evidence. We bow to this principle of law but in the present case learned trial Court had not relied only on the confession of Gul Muhammad for convicting his co-accused as there was other evidence on record in the form of the recoveries and identification of the appellants which corroborated the evidence of the confession of Gul Muhammad. We are satisfied that there is no procedural irregularity in the recording of the confession and even otherwise, as held in the judgment in the case of Shahzado v. State (PLD 2005 SC 477), procedural irregularity does not vitiate the evidentiary value of a confession. The confession is inculpatory and therefore is effective both against the maker as well as against his co-accused and learned trial Judge has rightly relied upon it.
(c) Identification parade
13. Identification parade was held on 8-6-2000 under the supervision of the Joint Civil Judge and FCM Mirpurkhas, Mrs. Farhat Jabeen in respect of appellant Wali Muhammad and deceased/accused Pir Bux, who were arrested on 2-6-2000, through complainant Naeem Ahmad and P.W. Wazir Ali and both Naeem Ahmad and Wazir Ali had identified the two accused persons.
No breach of law could be pointed out by learned counsel of the appellant in the holding of the identification parade except that it was delayed by six days and in this respect relied upon judgment in the case of Ziaulla v. State (2005 SCMR 1161). However, this judgment is actually an order granting leave to appeal and merely enlists the contentions raised by the counsel of Ziaullah; it does not give the facts or the observations of the court and reliance placed upon it is therefore misplaced. Learned counsel of the appellant has also relied on some more judgments in this regard and the next judgment on which he G relies in this connection is 2003 SCM R 1419 (Khalid Javed v. State) but it is also irrelevant in that it also is not on the point of identification. Another judgment is 1988 PCr.LJ 1965 (Md. Nawaz v. State) but in this reported case identification parade was held after a delay of eleven months and after 20 days of arrest but in the present case identification parade was held within less than a month of the occurrence and within six days of arrest of these accused persons. Thus the facts are quite different in the present appeal. There is no inordinate delay in the present case. As held by this court in the case of Khan Ali v. State (1999 M LD 2477) delay in holding identification parade is not always fatal to the prosecution case. Under the circumstances, the evidentiary value of identification parade cannot be assailed on the ground of delay. Same is the position in respect of the judgments reported as 1992 PCr.LJ 1411 (Md. Asif v.
State) and 1992 PCr.LJ 1536 (Wajid Umer v. State). The latter judgment is, in fact, on the point of tazkiya-al-Shahood' and has nothing to do with the evidence of identification parade. Similarly, the other two judgments relied upon by the learned counsel --- Riaz Ahmad v. State (2006 M LD 1223) and Zulfiqar v. State (1991 PCr.LJ 1145) do not advance the cause of the appellants. No doubt, the court must also look for some independent evidence before acting upon evidence of identification parade, as held in the abovenoted last judgment but such independent evidence in the person of P.W.9 Khuda Bux is available who is the witness of recovery of some of the looted property and of the weapons allegedly used by the accused in the commission of the crime. We are satisfied that no fault can be found with the identification parade and learned trial Judge has rightly relied upon it.
14. The murder of Ali Sher is sufficiently proved by the evidence of P.W.1 Dr. Muhammad Sajjan who had performed the postmortem examination on the body of Ali Sher. Defence had also not contested his IH murder but it was argued before us that complainant himself had murdered his father on account of property dispute. However, in the absence of any evidence in support of this defence plea the same cannot be believed.
15. Complainant Naeem Ahmad stated that the culprit having pistol had fired and killed Ali Sher and further stated that in identification parade he had identified Peer Bux as that person who had fired and killed his father. The evidence of Complainant's brother Wazir Ali (P.W.7) is also to the same effect and he had also identified Peer Bux in the identification parade as that culprit who had fired and killed Ali Sher. All the appellants, including deceased Peer Bux, were unknown to the complainant and his brother and that is why none of them was nominated in the F.I.R. And there is therefore no reason for them to falsely accuse Peer Bux of firing and killing Ali Sher. The pistol recovered from deceased/accused Peer Bux was sent to the Ballistic Expert for comparison with the empties of pistol recovered from the place of occurrence and his report Exh.22-A established that these two empties were fired from the pistol recovered from Peer Bux. Learned counsel of the appellants argued that the empties were not of the pistol but of gun but the argument was devoid of any substance. We therefore agree with learned trial Judge that evidence on record sufficiently proves that out of the appellants it was Peer Bux who had fired and killed Ali Sher.
16. We further agree with learned trial Judge that the evidence on record, as discussed above, proves that appellants Gul Muhammad Gul Machi, Wali Muhammad and deceased Peer Bux did indeed raid the house of the complainant and deceased Ali Sher at 0430 hours on 7-5-2000 with the purpose of committing haraabah and did commit the same and in the course of it Peer Bux caused the murder of Ali Sher. However, we are of the view that the offence so committed falls within the definition of haraaba under section 15 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 whose commission is covered by section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance --- an Offence with which they had been charged by the learned trial Court. It may be noted that in haraabah it is not necessary that there should be five or more culprits, as is provided under section 396, P.P.C. However, since the witnesses did not come up to the standard laid down by the principle of tazkiya al shahood', the appellants could not be sentenced under section 17(4) of the said Ordinance and the trial Court therefore sentenced them under section 306, P.P.C. There is no force in the contention of the learned counsel of the appellant that, after Sajjan is exonerated and acquitted, only four accused persons are left and therefore the offence would not fall under section 396 but under section 392, P.P.C. And the sentence should therefore be accordingly reduced. The charge is under section 17(4) of the Ordinance, not under section 396, P.P.C. But, because the witnesses did not come up to the standard of tazkiya al shahood, the appellants were convicted under section 396, P.P.C. We would therefore maintain the conviction of the appellants under section 396, P.P.C. And we also maintain their sentence.
17. To summarize the above discussion, Appeal No 24/K of 2006 is allowed vide Paragraph No. 9 of the judgment whereas appeal of Gul Muhammad, Gul Machi and Wali Muhammad (Appeal No. 23/K of 2006) is dismissed.