' SYED IFTIKHAR HUSSAIN SHAH, J.---The appellants namely All Akbar, Muhammad Azam and Abdul Sattar have assailed the judgment dated 28-2-2007 passed by the learned Additional Sessions Judge, Kot Addu whereby the appellants were convicted and sentenced as under:- Accused All Akbar
(i) The accused Ali Akbar was convicted and sentenced to death as Ta'zir under section 302(b), P.P.C. For the qatl-e-amd of the deceased Ghulam Abbas and was ordered to pay Rs,1,00,000 (one lac rupees) as compensation to the legal heirs of the deceased Ghulam Abbas under section 544- A, Cr.P.C. Failing which he will have to undergo further S.I. For 6 (six) months. Even if the same was not paid, the law will take its own steps for the recovery of the same from the accused.
(ii) Convicted and sentenced to undergo R.I. For 10 (ten) years under section 392, P.P.C.
(iii) Convicted and sentenced to pay a fine of Rs,20,000 (twenty thousand rupees) under section 392, P.P.C. Failing which he shall undergo further S.I. For 6 (six) months.
(iv) Convicted and sentenced to undergo R.I. For 3 (three) months under section 411, P.P.C.
(v) All the sentences awarded were directed to run concurrently.
Accused Muhammad Azam.
(i) Accused Muhammad Azam was convicted and sentenced to undergo R.I. For life under section 302(b), P.P.C. As Ta'zir read with section 34, P.P.C. For Qatl-e-Amd of deceased Ghulam Abbass and was ordered to pay as compensation Rs,1,00,000 to the legal heirs of the deceased Ghulam Abbas under section 544-A, Cr.P.C. Shall have to undergo further S.I. For six months and even if the same was not paid the law will take its own steps for the recovery of the same from the accused.
(ii) Convicted and sentenced to undergo R.I. For 10 years under section 392, P.P.C.
(iii) Convicted and sentenced to pay a fine of Rs,20,000 under section 392 P.P.C. Failing which he will have to undergo further S.I. For six months.
(iv) Convicted and sentenced to undergo R.I. For three years under section 411, P.P.C.
' All the sentences were directed to run concurrently.
Accused Abdul Sattar.
(i) Accused Abdul Sattar was convicted and sentenced to undergo R.I. For life under section 302(b), P.P.C. As Ta'zir read with section 34, P.P.C. For the Qatl-eAmd of deceased Ghulam Abbas and was ordered to pay a compensation of Rs,1,00,000 (one lac rupees) to the legal heirs of the deceased.
Ghulam Abass under section 544-A, Cr.P.C. Failing which will have to undergo further S.I. For six months and even if the same was not paid, the law will take its own steps for the recovery of the same from the accused.
(ii) Convicted and sentenced to undergo R.I. For 10 years under section 392, P.P.C.
(iii) Convicted and sentenced to pay a fine of Rs, 20,000 under section 392, P.P.C. Failing which he will have to undergo further Six for six months.
(iv) Convicted and sentenced to undergo R.I. For three years under section 411, P.P.C.
(v) All the sentences to the accused were directed to run concurrently.
2. The trial Court has also submitted Murder Reference No,331 of 2007 under section 374, Cr.P.C.
Seeking confirmation or otherwise of death penalty awarded to the appellant Ali, Akbar. Both the matters are inter-linked and inter-connected so are being taken up and disposed of together through this single judgment.
3. Ghulam Qasim complainant P.W.8 got registered the F. I. R. Exh. PG . According to which his brother Ghulam Abbas deceased of this case owned a Car No, 676/MNV white colour Corolla Model 1986 using the same as taxi-car. On 21-7-2005 at about 11-30 a.m. The complainant along with Kaleem Ullah went towards the taxi-stand Sanawan to see Ghulam Abbas and in their presence three persons whose description has been given in the F.I.R. Came and hired the taxi of his brother Ghulam Abbas for Kot Addu and Rs,200 was settled as rent. When the taxi car reached near the house of one Abdul Majeed Khan Gurmani at Chah Nickiwala within the limits of village Lal Meer at about 12-00 in the noon the aforesaid three persons tried to snatch the car from the brother of the complainant. In the meanwhile from the opposite side of Kot Addu Ghulam Mustafa and Ghulam Shabbir brothers of the complainant were coming who saw the taxi of his brother parked there and saw all the aforementioned persons had been grappling with Ghulam Abbas. In their view the accused appellant who was having the beard and armed with .30-bore pistol fired two shots at Ghulam Abbas deceased which hit on his neck and face. They also threatened that if any one comes forward shall be murdered. Ghulam Abbas died at the spot. The aforesaid persons after snatching the car ran away towards 'North. The police immediately after registration of the case informed the wireless control about the occurrence and the check posts were created.
3(sic). Ashraf Ali (P.W3) S.-I. Police Incharge Patrolling Post Triman Tehsil Taunsa Sharif District D.G.
Khan after receiving wireless message about the occurrence of this case that three persons had snatched the Car No, 676/MNV, created check-posts on the Indus High way. He saw that a Car No, 676/MNV white. Colour, Corrolla Model 1986 coming with high speed from Southern side which was stopped and the persons present therein were apprehended. The accused who was driving the car disclosed his name, as Ali Akbar, the accused who was sitting at the front seat was Muhammad Azam and the accused sitting on the rear seat was Abdul Sattar. The features of all the three persons were of the same which were informed on wireless. On the search of Ali Akbar pistol .30- bore P1 along with its license P-2 and its pouch P-3, National ID Card P-4, driving license P-5 and wrist watch p-6 were recovered. On the personal search of Muhammad Azam National ID Card of the deceased P-7, Rs,200 P-8/1 and 2 were recovered. On the personal search of Abdul Sattar Rs,320 were recovered, two Magazines P-11 and P-12 along with 15 live bullets P-13/1 to 15 were also recovered from the appellant Ali Akbar. The car P-14 was also recovered and was taken into possession vide recovery memo Exh.PB. A Rapt No, 4 was registered at Patrolling Post Triman on 21- 7-2005.
4. Rafi Ullah Inspector/S.H.O., P.W.10, recorded the statement of the complainant Exh.PG. He went to the place of occurrence, prepared the inquest report Exh.PS and injury statement of the deceased Exh. PD, prepared rough site plan of the place of occurrence Exh.PT, collected blood-stained earth and two crime empties from the place of occurrence and took the same into possession vide reco very memos Exh. PH and Exh. PJ attested by Ghulam Mustafa and Ghulam Sha bbir P.Ws. The dead body was shifted to mortuary and after post mortem examination blood stained clothes of the deceased shalwar p-16, Qameez P-17 and post mortem report were produced before him which he took into possession vide recovery memo Exh.PF. After receiving the wireless message from patrolling check post Triman District DG Khan he along with Ghulam Mustafa, Ghulam Qasim, Ghulam Shabbir and one Kaleem Ullah and the police personnel went to the Patrolling Post Triman.
The Incharge Patrolling Police Ashraf Ali met him. The under-trial accused were confined in the lock-up. Ashraf Ali produced before him the articles recovered by him through memo Ex.PA and Rapt under section 550, Cr.P.C. Exh.PB. He also took into possession pistol 30-bore which was owned and licensed one of Ali Akbar appellant which was taken into possession vide recovery memo. Exh.
PP. Ghulam Qasim and Kaleem Ullah PWs attested the memos as witnesses. He prepared, a rough site plan of the place of recovery of the car, pistol and other articles Exh. PU. Ashraf Ali, (P.W.3) also handed over to him Rapt No, 4 dated 21-7-2005. Ghulam Mustafa, Ghulam Shabbir, Ghulam Qasim and Kaleem Ullah P.Ws. Turn by turn identified the appellants, according to the description and the features. He prepared four Fard Shanakht of the appellants Exh. PK, Exh. PL. Exh. PQ and Exh. PR respectively. On the following day after seeking permission from the Area Magistrate the case property and accused were brought to police station Sanawan. After completion of the investigation the accused appellants were challaned.
5. At the commencement of the trial, the learned trial Court framed the charge under sections 302/392/412/34, P.P.C. . The accused did not plead guilty to the charge and claimed trial. Therefore, the prosecution was directed to produce evidence to substantiate the charge.
6. The prosecution has examined 10 witnesses. P.W.1 Manzoor Ahmad Moharrir was handed over blood-stained earth and crime empties by the I.O. For keeping the same in the safe custody at Malkhana and on 22-7-2005 he handed over the said parcels to Ghulam Farid for its onward transmission to the concerned office at Lahore. P.W.2 Ghulam Farid was handed over two sealed parcels of blood stained earth and other empties for their onward transmission in the office of Chemical Examiner at Lahore. On 28-7-2005, he was handed over parcel of pistol 30-bore for its onward transmission to the Forensic Science Laboratory,Lahore. P.W.3, Ashraf Ali S.-I. Apprehended the appellants from Triman Check Post. Khalil Ahmad P.W.4 is the marginal witness of the recovery memo Exh. PA about taking into possession the articles recovered from the appellants at the time of their arrest at check post. P.W.5 Dr. Munk Aftab conducted the post mortem examination on the dead body of Ghulam Abbass deceased on 21-7-2005 and found the following injuries on his person:--
(i) A fire arm injury wound of size 1 cm x 1 cm with inverted margins and tattooing present around it lying on right cheek.
(ii) A fire arm exit wound of size 1.5 cm x 1.5 cm over right occipital area. Brain matter was coming out of it. With probing injuries Nos.1 and 2 were communicated.
(iii) A fire arm entry would of size 1 c.m. x 1 c.m. On left side of neck.
(iv) A fire arm exit wound of size 1.5 c.m. x 1.5 c.m. Behind right ear. Brain matter was coming out of it. With probing Injuries Nos.3 and 4 were communicated.
' According to the opinion of the aforesaid medical expert the cause of death was due to trama to main vessels of head and neck, trama to brain and spinal cord due to fire arm. The injuries were ante mortem Exh.P.C. Is the correct carbon copy of the original post mortem report which is in his handwriting and bears his signatures. P. W.7 Altaf Hussain constable escorted the dead body.
Ghulam Qasim P.W.8, Ghulam Mustafa P.W.9 are the eye-witnesses of the occurrence. P.W.10 Rafi Ullah Inspector/S.H.O. Is the Investigating Officer of this case.
7. The prosecution has also submitted the report of Chemical Examiner Exh.PZ and Forensic Science Laboratory Exh.PAA and report of Serologist Exh.PY.
8. Learned trial Court after recording the prosecution evidence examined the appellants/accused under section 342, Cr.P.C. And incriminating evidence produced by the prosecution was put to them, which they termed as incorrect and all of them have alleged that they were travelling in buses which were stopped at Trirnan Check Post. Police Inspector entered into the buses who started seeing the features of the passengers suspecting them as culprits. They were brought out of the buses. They have also alleged that the murder in this case was blind one and the police to show their efficiency have falsely implicated them. The appellants have neither appeared in their defence as witnesses as required under section 340(2), Cr.P.C. Nor they have produced any evidence in their defence.
9. The learned trial Court after recording the evidence and hearing the parties convicted the appellants and sentenced them as mentioned above. Hence, the present appeal and the murder reference.
10. We have heard the learned counsel for the appellants, learned D.P.-G. For State, the learned counsel for the complainant and have perused the record.
11. The learned counsel for the appellants has contended that the case against the appellants is false and fictitious one. Neither they have hired the car of Ghulam Abbas nor they have snatched the same after murdering him. They were travelling towards DG Khan in different buses which were stopped by the Patrolling Police of Triman and were searched. All the three appellants who were travelling in different buses were apprehended being suspected persons and have been falsely implicated in this case. They have not put to the test of identification parade. The P.Ws. Who are the brothers of the deceased have falsely implicated them in this case. According to the prosecution the occurrence of snatching of car and murder had taken place in the busy area but no person from adjacent area was joined in the investigation of this. Case. It was a blind murder and the appellant had got no connection with the murder of the deceased. There are material contradictions in the statements of the P.Ws. The medical evidence is not in line with the ocular.
Account. The prosecution has failed to establish the guilt of the accused appellant beyond reasonable doubt but the learned trial Court has not looked into all these aspects of the case and has convicted and sentenced the appellant arbitrarily. The impugned judgment is not sustainable in the eyes of law and the appellants are liable to be acquitted. The learned counsel for the appellant has relied upon Umar Hayat v. The State (2011 SCM R 95) Muzammil Din v. Noor Hussain, (1985 SCM R 495) Saee Muhammad v. The State, (2007 SCM R 203) Jay Ram v. The State (2007 PCr.
Li 27) and Umaid Ali v. The State (2008 SCM R 1419).
12. Learned A.P.-G. For State assisted by the learned counsel for the complainant has stated that on 21-7-2005 at about 11-30 a.m. The appellants came at the taxi Stand Sanawan. They hired the taxi of Ghulam Abbas deceased of this case and took him towards Kot Addu. The occurrence took place at 12 Noon which was reported to the police immediately at 12-30 in the Noon. The description of the appellants was given in the F.I.R. At 2-30 p.m. On the same day the appellants were arrested at the Check Post Triman. P.Ws. Were taken there by the 1.0. Of this case where they identified the persons who got the taxi on rent and allegedly murdered Ghulam Abbass. As the P.Ws. Have fully recognized the appellants according to their description given in the F.I.R., therefore, the question of test identification parade does not arise at all in view of the latest pronouncement of the Hon'bel Supreme Court of Pakistan 2011 SCM R 877 Muhammad Akram Rahi v. The State. The P.Ws. Have fully implicated the accused appellants in snatching of the car and committing the murder of Ghulam Abbas, therefore, the learned trial Court has rightly convicted them. The appeal is liable to be dismissed and the murder reference is liable to be answered in the affirmative.
13. The prosecution has relied on the statements of Ghulam Qasim P.W.8 and Ghulam Mustafa P.W.9 as the eyewitnesses of the occurrence. Ghulam Qasim P.W.8 has stated that about 9 months and one week ago at about 11.30 a.m. He along with Kaleem Ullah and Ghulam Abbass deceased was standing at Taxi Stand Sanawan. When three persons one of them having a short beard with flat face having slim physique average height with wheatish colour wearing boski' Qameez and white shalwar and second one having a round face, with big eyes and wheatish colour having an old healed mark of wound near the nose having fatty physique wearing shalwar-qameez of white colour and third one having wheatish colour long in height with heavy and active physique wearing white colour shalwar qameez came there and hired Taxi No, 676/MNV from his brother Ghulam Abbas for Kot Addu for a consideration of Rs,200 and went towards Kot Addu with his brother. At about 12 in the noon when he was still present at taxi stand Sanwan he received an information on telephone from his brother Ghulam Mustafa that Ghulam Abbas had been murdered by the accused appellants who had hired a taxi car and had run away after snatching the car. He went to the place of occurrence from where he returned to Police Station where he got recorded his statement Exh.PG. On the same day at 3-00 p.m. He was present at police station where an information was received on wireless from Triman Check Post of Tehsil Taunsa Sharif District DG Khan about the arrest of the three persons and taking into possession a Corolla Car Model 1986 Car. He along with Kaleem Ullah, Ghulam Shabbir and Ghulam Mustafa in the company of S.H.O.
Sanawan went to Check Post Triman. There they along with other P.. Ws. Identified the appellants as the persons who had hired' the taxi of his brother. The police prepared the Fard Shanakht in their presence. Ghulam Mustafa P.W.9 has deposed that one year 2 months 20 days back he along with Ghulam Shabbir was coming from Kot Addu to Sanwan and when they reached near Chah Naki Wala village Lal Meer they saw that three persons grappling/scuffling with Ghulam Abbas and they have the following descriptions:--
(i) One of them was having white colour, flat face active physique, moderate height and with small beard wearing boski qameez and white shalwar.
(ii) The second one having wheatish colour round face, a healed cut mark on the nose under the left nostril, big eyes and wearing white colour V..-
(iii) The third one having a wheatish colour, smartphysique wearing white shalwar and qameez.
' In their view a small beard person who was present in the court named as. Ali Akbar fired two shots with his pistol .30- bore which hit the deceased Ghulam Abbas on his right cheek and left side of the neck respectively. Ghulam Abbas died on the spot and the three accused appellants present in the Court after snatching the car ran away. He also identified the appellants at Check post Triman along with other P.Ws.
14. Learned counsel for the appellants has contended that both the P.Ws., complainant P.W.8 who had allegedly, seen the appellants while getting the taxi of the deceased on rent for Kot Addu and Ghulam Mustafa P.W.9 who had allegedly seen the appellants grappling/scuffling with Ghulam Abbas and firing at him are the real brothers of the deceased. Therefore, they are interested witnesses and their evidence cannot be relied upon. The appellants were not nominated in the F.I.R.
So it was incumbent upon the prosecution to put them to the test of identification parade but the prosecution has failed to arrange any test identification parade for the identification of the real.
Culprits. The weapon of offence allegedly recovered during the search of Ali Akbar appellant was licensed one. The appellants were travelling in different buses towards D.G. Khan which was stopped at Triman Check Post and the appellants being suspected persons were brought out of the different buses. They had not snatched the car from the deceased and they have been falsely implicated by the police and the P. Ws.
15. Now it is well-settled that mere relationship between the P.Ws. And the deceased is not enough to discard their evidence. The statements of prosecution witnesses who stand firm to the test of cross-examination cannot be discarded especially when sufficient corroboratory material is also available to support their testimony. It is to be noted that only for the safe dispensation of justice corroboration is necessary in certain given circumstances but the scope of this principle cannot be extended to the case of ancillary facts testified by the witnesses. Reliance can be placed on Riaz Hussain v. The State (2001 SCM R 177). In Khadim Hussain v. The State (PLD 2010 SC 669) it has been held that it is the intrinsic value of the statement of the witness which is to be examined and not the relationship.
16. In this case all the appellants were alien to the complainant. Ghulam Qasim P.W.8, Ghulam Mustafa, P.W.9. And Ghulam Abbas deceased. According to the prosecution version the appellants came at the taxi stand where they hired the taxi of Ghulam Abbas in the presence of the complainant Ghulam Qasim, took him towards Kot Addu. On their way. Tried to snatch the taxi from the deceased, fired at the deceased, murdered him and took the taxi car towards DG Khan. The aforesaid occurrence was witnessed by Ghulam Mustafa P.W.9. After the occurrence wireless message was sent to the control and Ashraf Ali P.W.3 Incharge Patrolling Check Post Triman created a check post and all the three appellants while going in the snatched car were apprehended, the car along with. ID Card of. The deceased and other articles were recovered from them. P.Ws. Fully identified the accused appellants at the aforesaid check post. The description of the appellants had already been given in the F.I.R. Which was lodged at 12-30 Noon. The accused appellants were apprehended at 2-30 p.m at Triman check post which was at a distance of 130 k. m. From the place of occurrence and a person on a car can easily travel the said distance within two hours. The learned counsel for the appellant has objected that the appellants were not put to the test of identification parade. In this respect reliance has been placed by the learned counsel for the appellants on Umaid All v. The State, (2008 SCM R 1419) and Umar Hayat v. The State (2011 SCM R 95). In the case of Umaid All v. State (2008 SCM R 1419) no facial descriptions given by the prosecution witnesses, so the test identification parade was considered necessary. But in the instant facial description was given even in the F.I.R. Similarly in the case of Umar Hayat v. The State (2011 SCM R 95), also the description of accused was not given in the F.I.R.
17. Now the matter has been settled by the Hon'ble Supreme Court of Pakistan-while deciding criminal appeal of Muhammad Akram Rahi v. The State (2011 SCM R 877) that where identification of the accused has been proved by other convincing direct and circumstantial evidence the absence of identification test parade will be immaterial. In the instant case the descriptions of the accused appellants were given in the F.I.R. Itself. The appellants have been recognized correctly by P.Ws. In accordance with the descriptions already given in the F.I.R. Therefore, the absence of identification test proceedings is immaterial. Both P.Ws.8 and 9 were put to the lengthy cross-examination by 'the learned counsel for the appellants. Version of both the P.Ws. Remained firm, consistent, straight forward and worthy of credence on all material particulars. Statement of P.W.9 Ghulam Mustafa who witnessed the occurrence of murder and snatching of car remained unshaken during the cross-examination. The medical evidence has fully supported his version. His statement has got due corroboration from the medical evidence to the extent of nature of injuries, kind of weapon used for causing such injuries and their duration.
18. The weapon of offence recovered from the appellant was sent to Ballistic Expert for comparison with the crime empties recovered from the place of occurrence and the report of Ballistic Expert Exh.PAA is positive one which has fortified the prosecution version.
19. We have also considered defence version which emerges in reply to question No, 23 during the examination of the appellants under section 342, Cr.P.C. All the three appellants have alleged that they were travelling in different buses which were stopped at Triman Check Post and an Inspector entered into the buses who started to see the features of the passengers and suspected them as culprits, caught them and brought them out of the buses. It was a blind murder and just to show the progress, the police joined hands with the complainant party and have falsely fitted them in this case to fill up the gap.
20. We have carefully examined the defence version which is nothing but a simple denial and mere substitution that the deceased was fired at by unknown persons and they have been falsely implicated just to fill in the gap but the defence could not substantiate its version through any cogent evidence. Even the appellants had not appeared before the trial Court in support of their defence as required under section 340(2), Cr.P.C. Now it is settled law that it is the duty and obligation of the accused to prove the plea taken by him in E defence in terms of Article 121 of the Qanun-e-Shahadat Order, 1984.
21. We have carefully examined the respective contentions as agitated on behalf of the appellants and for the State, scrutinized the entire prosecution evidence by keeping the defence version in juxta position and have also gone through the judgment of the trial Court carefully. After going through the entire evidence, we are of the view that the prosecution . Has established the guilt by producing a worthy of credence and confidence inspiring evidence which has rightly been relied upon by the learned trial Court. It was a day light occurrence. The F.I.R. Was promptly lodged. The P.
Ws. Have attributed specific role to the appellant Ali Akbar who was armed with fire-arm and had fired at the deceased. The other appellants were accompanying him at the time of hiring of taxi and at the time of murder of Ghulam Abbas and all of them were arrested at the check post Triman and the stolen car was recovered from them.
22. In the light of what has been discussed above, we are of the view that the prosecution has fully established the guilt of the appellants beyond any shadow of doubt by producing worthy of credence and confidence-inspiring evidence. As the appellants in the furtherance of their common intention came at the taxi stand, took the taxi of deceased Ghulam Abbas on rent, took him towards Kot Addu, Ali Akbar accused appellant fired at Ghulam Abbass which resulted in his death and the appellant Ali Akbar along with his co-accused Muhammad Azam and Abdul Sattar snatched the car and went towards D.G. Khan from where they were apprehended at check post Triman. Stolen car was recovered from them along with other articles. The impugned judgment is free from any illegality or irregularity. The conviction and sentence awarded to all the three appellants is hereby maintained. The appeal is without merits and the same is hereby dismissed.
The death sentence awarded to Ali Akbar appellant is confirmed and the murder reference is answered in affirmative.