JUDGMENT MALIK SHAHZAD AHMAD KHAN, J. - This judgment shall dispose of Criminal Appeal No. 740 of 2008, preferred by appellant Muhammad Mansha, Criminal Appeal No. 187-J of 2008, preferred by appellant Haider Ali and Murder Reference No. 150 of 2008, sent by the learned Trial Court for confirmation or otherwise or the sentence of death awarded to Muhammad Mansha appellant, as all these matters have arisen out of the same judgment dated 27.06.2008, passed by the learned Addl. Sessions Judge, Toba Tek Singh, in caise F.I.R. No. 78, dated 19.02.2007, offence under Sections 302, 324, 392, 353, 186, 440, 411 and 34, P.P.C., registered at Police Station Saddar Gojra, District Toba Tek Singh, whereby, Muhammad Mansha, appellant was convicted under Section 302(b), P.P.C, for committing the murder of Tanveer (deceased) and sentenced to death with the direction to pay Rs. 1,06,000/- (rupees one lac) as compensation to the legal heirs of deceased Tanveer as required under Section 544-A of the Code of Criminal Procedure and in default, thereof, to undergo six months. Muhammad Mansha appellant was further convicted under Section 392, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to undergo simple imprisonment for six months. He was also convicted under Section 353, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous, imprisonment two years. He was further convicted under Section 324, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months. Muhammad Mansha appellant was also convicted under Section 440, P.P.C, read with, Section 34, P.P.C, and sentenced to rigorous imprisonment for three years with fine of Rs. 10,000/- (rupees ten thousand) and in rif fault, thereof, to further undergo simple imprisonment for six months.
Haider Ali (appellant) was convicted under Section 392, P.P.C, read with Section 34, P.P.G, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to undergo simple imprisonment for six months. He was also convicted under Section 353, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for two years. He was further convicted under Section 324, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment. For ten years with a fine of Rs.-10,000/- (rupees ten thousand) and in default thereof to further undergo simple imprisonment for six months. Haider Ali (appellant) was also convicted under Section 440, P.P.C, read with Section 34, P.P.C^ and sentenced to rigorous imprisonment for three years with fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months.
Muhammad Rafique alias Naveed, co-convict of the appellants was convicted under Section 392, P.P.C, read with Section 34 P.P.C, and sentenced to rigorous imprisonment for the years with a fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to undergo simple imprisonment for six months. He was also convicted under Section 353, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for two years. He was further convicted under Section 324, P.P.C, read with Section 34, P.P.C, and sentenced to rigorous imprisonment for ten years with a fine of Rs. 1,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months. Muhammad Rafique alias Naveed, co-convict of the appellants was also convicted under Section 440, P.P.C, read with Section 34, P.P.C, and Sentenced to rigorous imprisonment for three years with fine of Rs. 10,000/- (rupees ten thousand) and in default, thereof, to further undergo simple imprisonment for six months.
All the sentences awarded to the appellants and Muhammad Rafique alias Naveed, co-convict of the appellants were ordered to run concurrently. They were also given the benefit I f Section 38'2-B of the Code of Criminal Procedure.
It is pertain A to mention here that Muhammad Rafique alias' Naveed, co-convict of the appellants did not file any appeal against his convictions and sentences.
2. Brief facts of the case, as disclosed by Muhammad Bashir, complainant (PW-11) in his 'Fard Biyari (Exh-PF), on the basis of which formal F.I.R. (Exh-PF/1) was registered, are that he (complainant) was resident of Chak No. 326/G.H. He (complainant) alongwith his son Tanveer Ahmad (deceased) had established a hotel for tea at Adda Mongi on the bank or canal. On 19.02.2007, Maqsood Ahmad (PW-12) and Muhammad Irfan (given up PW) also came there to see them. At about 05.15 p.m., three persons who were riding on a motorcycle which was without registration number passed near their hotel at a high speed and went towards Gavair Canal. Meanwhile, Shah Nawaz (PW-13) raised hue end cry that his motorcycle, applied for, 'Marka' Ravi, silver coloured, engine and chassis No. HKFO3E4909 has been snatched alongwith cash amounting to Rs. 7000/- (rup Hs seven thousand) and mobile phone Sony Ericsson. Meanwhile, the police of police post Mongi Bangla, Gojra started chasing the accused persons on official vehicle No. TSC-5364, whereupon, accused persons made a fire shot which landed on front screen of the official vehicle and its major portion was broken. All the three accused persons left their motorcycle on road and concealed themselves in the sugarcane crop. Meanwhile, he (complainant), Tanveer Ahmad (deceased), Muhammad Irfan (given up PW), Maqsood Ahmad (PW-12) also came there. One accused ran towards Chak No. 244/G.B. Tanveer Ahmad (deceased) tried to apprehend him, upon which, said accused made a straight fire shot which landed on the left side of neck of Tanveer Ahmad (deceased). They (complainant party) took care of the deceased who succumbed to the injuries. The complainant Muhammad Bashir, in F.I.R. (Exh-PF/1) has further stated that few days prior to the occurrence, Muhammad Rafique, co-convict of the appellants, Muhammad Mansha and Haider Ali (appellants) came at his hotel and took tea and amongst them, Muharram Mansha (appellant) has committed the murder of Tanveer Ahmad (deceased) by making fire shot with his pistol.
3. Muhammad Mansha, Haider All (appellants) and Muhammad Rafique alias Naveed, co-convict or the appellants, all were arrested in this case on 26.02.2007 by Muhammad Quresh, S.I. (PW-14). At the time of their arrest, their physical search was made. On personal search or Muhammad Mansha (appellant), .30 bore pistol (P-6) was recovered from right fold of his Shalwar, which was taken into possession vide recovery memo. Exh-P1. On personal search of Muhammad Rafique, co- convict of the appellants, .30 bore pistol (P-7) was recovered from right fold of his Shalwar, which was taken into possession vide recovery memo. Exh-PM whereas, on personal search of Haider Ali (appellant), .30 bore pistol P-8 (inadvertently it has been mentioned in the statement of PW-14 as P-9) was recovered from right fold of his Shalwar, which was taken into possession vide recovery memo. Ex-PN. On 02.03.2007, the appellants alongwith their co-convict . Muhammad Rafique alias Nave-rl got recovered motorcycle (P-5), which was taken into possession vide recovery memo.
Exh-PE. On 12.03.2007. Muhammad Mansha (appellant), while in police custody, after making disclosure, got recovered mobile phone Sony Ericsson (P-9), which was taken into possession vide recovery memo. Exh.PC. On the same day i. e. 12.03.2007. Muhammad Rafique alias Naveed, co- convict of the appellants, while in police custody, after making disclosure, got recovered one note (P-10) of the denomination of Rs. 1000/-, which was taken into possession vide recovery memo.
Exh.PB. On the same day i. e. 12.03.2007. Haider Ali (appellant), while in police custody, after making disclosure, got recovered one note (P- 11) of the denomination of Rs. 1000/-, which was taken into possession vide recovery memo. Exh.PA, (It is noted that Muhammad Quresh, S.I. (PW-14) in his statement he inadvertently mentioned the year 2006 in all the above underlined dates instead of year 2007 whereas, the occurrence took place on 19.02.2007). After completion or investigation, the challan was prepared and submitted before the learned Trial Court. The learned Trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure ; 1898, framed charge against the appellants and their co-convict Muhammad Rafique alias Naveed on 11.06.2007, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced fifteen witnesses,. During the trial.
Muhammad Waris 563/C (PW-10) Muhammad Bashir, complainant (PW11), Maqsood Ahmad (PW- 12) and Shah Nawaz (PW-13) furnished the ocular account of this case, It is pertinent to mention here that Muhammad Bashir, complainant died after the recording of his examination-in-chief and in this respect, the learned Trial Court recorded the statement of Muhammad Iqbal 592/C as PW-15 who produced the death certificate of Muhammad Bashir, complainant as Exh-PR. Shah Nawaz (PW-13) was also the witness of recovery alongwith Nadeem Sajid 843/C (PW-1) regarding mobile phone (P-9) at the instance of Muhammad Mansha (appellant), One Currency note (P-10) of the denomination of Rs. 1000/- at the ir lance or Muhammad Rafique, co-convict of the appellants, one currency note (P-11) of the denomination of Rs. 1000/- at the Instance of Haider Ali (appellant).
Muhammad Boota 205/C (PW-2) and Farzand Ali 554/C (PW-5) are the witnesses of recovery of motorcycle (P-5).
The medical evidence was furnished by Dr. Waseem Ullah Khan (PW-7), -.Who conducted the postmortem examination on the dead-body of Tanveer Ahmad (deceased).
Muhammad Quresh, S.I. (PW-14) is the Investigating Officer of the case. Muhammad Yaqub 385/C (PW-3), Nazir Ahmad, S.I (PW-4), Zafar Iqbal, Patwari (PW-6), Abdul Ghafoor 304/C (PW-8) and Muhammad Akhtar Shah (PW-9) are the formal witnesses. The prosecution also produced documentary evidence in the shape of recovery memo, of one currency note of the denomination of Rs. 1000/- (P-11) at the instance of one currency note of the denomination of Rs. 1000/- (P-10) at the. Instance of Muhammad Rafique alias Naveed, co-convict of the appellants (Exh-PB), recovery memo. Of mobile phone Sony Ericsson (P9) at the instance of Muhammad Mansha appellant (Exh-PC), recovery memo, of last worn clothes or deceased,(Exh-PD), recovery memo, of motorcycle P-5 (Exh-PE), rough site plan of the place of recovery of motorcycle (Exh-PE/1), statement of complainant for registration of case (Exh-PF), F.I.R. (Exh- PF/1), scaled site plan, in duplicate, of the place 'of occurrence (Exh-PG & Exh-PG/11), post-mortem report alongwith pictorial diagram of deceased' Tanveer Ahmad (Exh-PH and Exh-PH/1), injury statement (Exh-Pl), inquest report (Exh- PJ), recovery memo, of blood-stained earth (Exh-PK), recovery memo, of .30 bore pistol (P-6) at the instance of Muhammad Mansha appellant (Exh-PL), recovery memo. Of .30 bore pistol (P-7) at the instance of Muhammad Rafique alias Naveed, Co-convict of the appellants (Exh-PM), recovery memo, of .30 bore pistol (P-8) at the instance of Haider Ali appellant (Exh-PN), identification memo.
Of motorcycle P-5 (Exh-PO), rough site plan of the place of occurrence (Exh-PP), rough site plan of the place of record of mobile phone P-9 and currency notes P-10 & P-11 ;Exh-PQ), death certificate of Muhammad Bashir, complainant (Exh-PR), report of Chemical Examiner (Exh-PS), report of Serologist (Exh-PT) and closed Its evidence.
The statements of Muhammad Mansha and Haider Ali (appellants) alongwith their co-convict Muhammad Rafique alias Naveed, under Section 342 of the Code of Criminal Procedure, were recorded on 08.04.2008. They refuted the allegations levelled against them and processed their innocence. While answering to question "Why this case against you and why he PWs have deposed against you?" Muhammad Mansha, appellant replied as under:- 'The identity of culprits could not be ascertained. The first part of F.I.R, reveals that the culprits were not acquainted with PWs, therefore, in the whole narration of occurrence the accused were not nominated. Even in first part of statement of complainant in Court the culprits were not nominated.
It means that after recording first part of F.I.R, the second part was deferred till the nomination of the accused by T. Iess. Similarly in first pan or statements of the PWs in investigation under Section 161, Cr.P.C, and in Court the culprits were not nominated. It appears that after recording first part of statements of PWs under Section 161, Cr.P.C., the remaining statements were deferred. The second part of the statements was recorded by the I.O. Himself and not on the statements of PWs after due deliberation and guess work. I did not participate in the occurrence and was falsely roped in this case. The PWs deposed against me on the asking of police."
Haider Ali (appellant) and Muhammad Rafique alias Naveed, L- co-convict of the appellants in answer to the above- mentioned question, also replied on the same lines.
The appellants and their co-convict Muhammad Rafique alias Naveed neither opted to give evidence on Oath as provided under Section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against them nor producer: ly evidence in their defence.
5. Learned counsel for the appellants, in support of these appeals, contends that this F.I.R, was got registered by Muhammad Bashir, complainant who though appeared before the learned Trial Court as PW-11 but he was not cross-examined on behalf of the appellant as he died on 15.12.2007, therefore, his evidence cannot be used against the appellants. So far as the remaining evidence is concerned, learned counsel for the appellants contends that none of the witnesses while narrating the story stated that it was Muhammad Mansha (appellant) who fired at the deceased though at the end of their statements, they implicated Muhammad Mansha (appellant); that even Muhammad Waris 563/C (PW-10), in his cross-examination, has stated that now he has come to know that it was Muhammad Mansha who fired at, the deceased; that no identification parade was conducted in this case; that in fact, there is no evidence against the appellants. So far as the recoveries are concerned, learned counsel for the appellants contend that it was the case of the prosecution that motorcycle (P-5) was thrown on the bank of canal by the accused persons l t later on, same motorcycle, on the joint Plantation of the appellants and Muhammad Rafique alias Naveed, co-convict of the appellants, was allegedly recovered from the sugarcane crop, thus; the alleged recovery of motorcycle (P-5) carries no value; that no description or the mobile phone was given in the F.I.R, or disclosed before the learned Trial Court; that even no description of currency notes (P-10 & P-11), allegedly recovered at the instance of Muhammad Rafique alias Naveed, co- convict of the appellants and Haider Air (appellant) was given in the F.I.R. (Exh-PF/1). Further contends that none of these recoveries was put to either of the appellants while recording their statements under Section 342 of the Code of Criminal Procedure, therefore, this evidence cannot be used against the appellants; that the case of the prosecution against the appellants from all angles is of doubtful nature; that the prosecution has miserably failed to prove its case against the appellants beyond -the shadow of doubt; thUa. Both th&se appeals be accepted and the appellants maybe acquitted from the charges.
6. Notice was issued to toe complainant but, it was reported on the notice that the complainant has died Ch 15.12.2007, upon which, notice was issued to his son but none is present on behalf of son of the complainant.
7. Learned Deputy Prosecutor General vehemently opposes both these appeals on the grounds that the F.I.R, was got registered by Muhammad Bashir (PW-11) whose, real son was done to death and he has no enmity with the appellants or with Muhammad Rafique alias Naveed, co-convict of the appellants for their false implication in the case; that examination-in-chief of Muhammad Bashir, complainant (PW-11) was recorded on 13.07.2007 but he was not cross-examined by the learned defence counsel and he died on 15.12.2007, therefore, his evidence can be used against the appellants; that apart from the evidence of the complainant, there are statements or other eye- witnesses namely, Muhammad Waris 563/C (PW10), Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13); that Maqsood Ahmad r! (PW-12) and Shah Nawaz (PW-13), in their statements before the learned Trial Court, have stated that it was the appellant Muhammad Mansha who fired at the deceased and the said fact was also mentioned in their statements recorded under Section 161 of the Code of Criminal Procedure; that both the witnesses have no enmity with the appellants for their raise implication in the case; that the prosecution case got full support from the medical evidence furnished by Dr. Waseem Ullah Khan (PW-7); that the prosecution case is further corroborated by the recovery of .30 bore pistols and recovery of snatched articles from the possession or the appellants and from Muhammad Rafique alias Naveed, co-convict of the appellants; that the prosecution has proved its case against the appellants from all angles; that the sentences were rightly awarded to the appellants by the learned Trial Court and the Same may be maintained, appeal may be dismissed and Murder Reference be answered in the alternative.
8. We have heard the arguments of learned counsel for the appellants, the learned Deputy Prosecutor Gene-nl and have also gone through the record with their able assistance.
9. The occurrence in this case took place on 19.02.2007 at 05.15 p.m., in the fields or Chak No. 244/G.B situated within the jurisdiction of Police Station Saddar Gojra, District Toba Tek Singh. The matter was reported to the police on the same evening (19.02.2007) at 06.45 p.m. By Muhammad Bashir, complainant (PW-11) through his 'Fard Biyan' (Exh-PF), on the basis of which, formal F.I.R.
(Exh-PF/1) was also registered on the same night at 07.45 p.m. The distance between the place of occurrence and the police station is eleven miles. Considering the circumstances of the case, time of occurrence, place of occurrence and the distance between the place of occurrence and the police station, we are of the view that there was no delay in . Reporting the matter to the police.
10. The ocular account of the prosecution was furnished by Muhammad Waris 563/C (PW-10), Muhammad Bashir, complanar (PW-11), Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13). We have noted that examination-in- chief of Muhammad Bashir complainant (PW-11) was recorded by the learned Trial Court on 13.07.2007 and cross-examination on the said witness was reserved on the - request of learned defence counsel. Thereafter, the complainant Muhammad Bashir (PW-11) did not appear before the learned Trial Court on 18.07.2007, 30.07.2007, 11.08.2007 and on 05.09.2007.
On 05.09.2007, bailable - warrants of arrest of the complainant were issued. On 12.09.2007, learned counsel for the complainant stated that the complainant was ill (The name of Bashir complainant has been inadvertently typed as Shabhir). Thereafter, on two dates (29.09.2007 and 08.10.2007), the learned Presiding Officer was on leave. On 17.10.2007, again complainant did not appear before the learned Trial Court, anyhow, he appeared on 29.10.2007. On 12.11.2007, the learned Presiding Officer was on leave. On 21.11.2007 and 03.12.2007, the complainant was not present and he died on 15.12.2007. Cross-examination on the complainant could not be recorded due to his death on 15.12.2007, therefore, we cannot rely upon the statement of Muhammad Bashir, complainant (PW- 11) who could n6t be subjected to cross- examination. Anything if the statement of Muhammad Bashir, complainant (PW-11) is excluded from consideration, even then there remains the evidence of other eye-witnesses of the occurrence namely, Muhammad Waris 563/C (PW-10),, Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13), In this case, the star eye-witness of the prosecution is Shah Nawaz (PW-13) because motorcycle (P-5), mobile phone (P-9) and cash amount of Rs.
7000/- (rupees seven thousand) were snatched by the accused persons from the said witness. The examination-in-chief of Shah Nawaz (PW-13) recorded by the learned Trial Court on 13.07.2007 is reproduced hereunder for ready reference:- "I am resident of Chak No. 148/GB. At about 5.00 p.m. I on my motorcycle which as applied for "Ravi Marka" silver engine and Clasis No. HKF03E4909, was going on the bank or Gogera Branch canal and when I had gone a little ahead, in front Of my three persons armed with fire-arms stopped me and snatched order or cycle from me. All the three persons threatened me to murder. After snatching the motorcycle they ascended on my motorcycle and went on the bank of the said canal or Moongi Bangla.
I was armed and was following the culprits and was raising alarm because the culprits had snatched Rs. 7,000/- and mobile Sony Ericsson from me and had fled away. On my alarm Muhammad Bashir son of Asmat Ullah caste Arain resident of Chak No. 326/GB Police Station Chutiana presently owner of the hotel ar Moongi Bangia, his son Muhammad Irfan PW, Tanveer deceased and Maqsood son of Ashraf caste Arain resident of Chak No. 336/GB Police Station Chutiana on hearing my alarm joined us in pursuing the culprits, In the meantime the service vehicle of police No. 5364/TSC of police post Moongi Bangla was also following the culprits. The culprits were armed with fire-arms who resorted to aimed fire at the police vehicle which damaged the vehicle. All the three culpri.;; threw motorcycle at Katcha road and entered the sugarcane crop. We and the police continued the pursuit. Taking advantage of the sugarcane crop the culprits escaped towards Chak No. 244/GB. But one of the culprits separated himself from the others while running, whom Tanveer deceased tried to apprehend. That culprit fired at Tanveer hitting on the left side of his neck with the intention to murder him who fell injured. We attended Tanveer who had succumbed to the injury at the spot.
Few days prior to the occurrence the accused Muhammad Rafique son of Abdul Hameed caste Faqeer resident Of Naimat Abad, Data Colony, Faisalabad, Muhammad Mansha son of Muhammad Akram caste Balkhana Jat resident of Chak No. 664/5GB police station Peermahal and Haider Ali son of Muhammad Hanif caste Malik resident of Mohallah Naimat Abad, Sahianwala, Faisalabad had" taken tea at the hotel of Muhammad Bashir complainant whom Muhammad Bashir complainant identified out of which Muhammad Mansha had fired at Tanveer deceased with pistol due to which he died. These three persons had murdered Tanveer Ahmed deceased. My motorcycle, cash Rs. 7,000/- and mobile phone Sony Ericsson was snatched and the service vehicle was damaged by tiring. All the three accused had done excess. I had witnessed the occurrence. I had identified my motorcycle after recovery vide identification memo. Exh.PO.
On 12.3.2007 Muhammad Mansha accused while in police custody made disclosure and in support of that disclosure led to the recovery of mobile phone P-9 which was taken into possession by the I.p. Vide recovery memo. Exh.PC attested by me and Nadeem Sajid Constable. On the same day Muhammad Rafique accused while in police custody made disclosure and in support of that disclosure Muhammad Rafique accused led to the recovery of currency note of the denomination or Rs. 1000/- P-10 which was taken into possession by the I.O. Vide recovery order. Fino. Exh.PB attested by me and Nadeem Sajid Constable. On the same day Haider Ali accused while in police custody made disclosure and in support of that disclosure Haider Ali accused led to the recovery of currency note of the denomination of Rs. 1000/- P-11 which was taken into possession by the I.O.
Vide recovery memo. Exh.PA attested by me and Nadeem Sajid Constable."
The evidence of other eye-witnesses namely, Muhammad Waris 563/C (PW-10) and Maqsood Ahmad (PW-12) is also on the same lines. The above-mentioned eye-witnesses namely, Muhammad Waris 563/C (PW10), Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13) have absolutely no enmity to falsely implicate the appellants and their co-convict in this case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case Their evidence is confidence inspiring. Muhammad Waris L63/C (PW-10) is a police employee. He alongwith other police officials chased the appellants and their co-convict namely, Muhammad Rafique alias Naveed at the time of occurrence when they were trying to flee away from the spot after snatching motorcycle (P-5), mobile phone (P-9) and cash amount of .Rs. 7,000/- (rupees seven thousand) from Shah Nawaz (PW-13) and when the appellants and their co-convict fired at the police vehicle, as - a result of which, its wind screen was broken. The said witness was also cross-examined by the learned defence counsel but nothing favourable to the appellants and their oo-convict could be brought on the record. As the appellants , and their co-convict Muhammad Rafique alias Naveed were duly nominated in the F.I.R, by Muhammad Bashir, complainant (PW-11), therefore, there was no need of holding any identification parade of the appellants.
11. The medical evidence the prosecution was furnished by or Waseem Ullah Khan (PW-7). He, on 20.02.2007 at 01.00 p.m., concluded the post-mortem examination on the dead-body of Tanveer Ahmad deceased and found the following injury on his person:-
1. A located wound of fire-arm entrance 5 cm x 1.5 cm into DNP into margins were inverted can left side of lower neck.
According to Dr. Waseem Ullah Khan (PW-7), the cause of death, in this case was haemorrhage and shock resulted from injury No. 1. The injury was sufficient to cause death in ordinary course of nature, injury No. 1 was ante-mortem and was caused by fire-arm weapon. The probable time between injury and death was half an tour whereas, between death and post-mortem was about seven hours.
Muhammad Mansha (appellant) was assigned the rote of inflicting a fire-arm injury with .30 bore pistol, which hit . Tanveer Ahmad (deceased) on left side or his neck. According to the medical evidence furnished by Dr. Waseem Ullah Khan (PW-7), the above-mentioned injury was available on the person or Tanveer Ahmad (deceased). Dr. Waseem Ullah Khan (PW-7) was also cross- examined by the learned defence Counsel but nothing favourable to the appellants could ire brought on the record. The ocular account of the prosecution which was furnished by Maqsood Ahmad (PW-12) and Shah Nawaz (PW-13) about infliction of fire-arm injury on the left side or the neck of deceased by Muhammad Mansha (appellant) has fully been supported by the above- mentioned medical evidence. The kind of weapon used by the appellant, the nature and seat of injury and the time of occurrence as stated by the above-mentioned eye- witnesses of the occurrence, all these facts have fully tallied with the medical evidence furnished by Dr. Waseem Ullah Khan (PW-7).
12. So far as the evidence of alleged recovery of motorcycle. (P-5), on the Plantation of the appellants and their co-convict Muhammad Rafique alias Naveed, recovery of mobile phone (P-9), one currency note of the denomination of Rs. 1000/- (P-10) at the instance of Muhammad Rafique alias Naveed, co-convict of the appellant, one currency note of the denomination of Rs. 1000/- (P- 11) at the instance of Haider Ali (appellant) is concerned, we have noted that in the F.I.R. (Exh-PF/1), it was the case of prosecution that the accused persons left the motorcycle on road and entered inside the sugarcane crop, It is amazing ^ :at after the arrest of the appellants and their co-convict, the same motorcycle was allegedly recovered on the Plantation or the appellants and their co- convict on 02.03.2007 from the fields. Even otherwise, the said recovery of motorcycle (P-5) was enacted on the joint Plantation or the appellants and their co-convict. Moreover, all the above- mentioned alleged recoveries were not put to the appellants and their co-convict in their statements recorded under Section 342 of the Code of Criminal Procedure, therefore, the same cannot be used against them, In view of the above, prosecution evidence qua the alleged recovery of motorcycle (P-5), mobile phono .(P-9) and two currency notes of the denomination of Rs. 1000/- each (P-10 & P-11) is inconsequential and or no avail to the prosecution.
13. As far as recoveries of .30 bore pistols P-6, P-7 & P-8 allegedly recovered from the possession of Muhammad Mansha (appellant), Muhammad Rafique alias Naveed, co-convict of the appellants and Haider Ali (appellant), respectively are concerned, there is no report of Forensic Science laboratory available on the record. We are, therefore, of the view that the recoveries of above- mentioned pistols allegedly recovered at the instance of the appellants and their co-convict Muhammad Rafique alias Naveed are also of no help to the case of the prosecution.
14. We have disbelieved the evidence of prosecution qua recovery of motorcycle (P-5), recovery of mobile phone (P-9) and that of two currency notes (P-10 & 'P-11) of the denomination of Rs. 1000/- each, therefore, Criminal Appeal No. 740 of 2008 and Criminal Appeal No. ,187-J of 2008, to the extent of the conviction of the appellants under Section 392, P.P.C, is accepted, their conviction and sentence under Section 392, P.P.C, is set aside and they are acquitted from the said charge.
As far as Muhammad Rafique alias Naveed, co- convict of the appellants is concerned, though the said convict has not filed any appeal against his conviction and sentence but we are of the view that statutory right of appeal to any convict on a trial by the Sessions Court has been provided under Section 410 of the Code of Criminal Procedure whereby, the convict as a right can demand an adjudication from High Court either on question of fact or on question of law or on both yet that is a procedural issue. We are of the view that whenever it comes into the notice of the Court that any procedure or technicality would cause serious injustice and if any illegality is found on the record during the hearing of any connected matter, High Court can re-appraise the case of that convict on merits who is being deprived from the relief to which he was entitled to, because High Court can exercise supervisory power in respect of Courts below where the appeal pr leave to appeal was not filed. We may refer here the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the cases of "Amin Ali and another v. The State' (2011 SCM R 323) and "Shabhir Ahmed v. The State' (2011 SCM R 1142) wherein, the Hon'ble Supreme Court of Pakistan while allowing the appeal of accused persons and acquitting them of the charges, directed to give benefit of the judgment to other accused who did rel prefer appeal, as their case was at par with the case of acquitted accused. As two co-convicts of Muhammad Rafique alias Naveed . Namely, Muhammad Mansha and Haider Ali (appellants) have been acquitted from the charge under Section 392, P.P.C, and the case of Muhammad Rafiq. e alias Naveed, co-convict of the appellants, who had not preferred any appeal, was at par with his co-accused to the extent of his conviction and sentence for the charge under Section 392, P.P.C., therefore, he could not be deprived of the benefit which was being extended to the appellants, therefore, Muhammad Rafique alias Naveed is also acquitted from the charge under Section 392, P.P.C., his conviction and sentence to the extent of charge under Section 392, P.P.C, is set aside, whereas, to the extent of remaining charges, his convictions and sentences shall, remain intact.
15. We have disbelieved the prosecution evidence qua recovery of pistols (P-6, P-7 & P-8), motorcycle (P-5), mobile phone (P-9) and two currency notes (P-10 & P-11) allegedly recovered at the instance of the appellants and their co-convict Muhammad Rafique alias Naveed, however, if the evidence of above-mentioned recoveries is excluded from consideration, even then there is sufficient incriminating evidence available on the record to prove the case against the appellants.
As discussed earlier, the prosecution case is fully proved through the evidence of eye-witnesses namely, Muhammad Waris 563/C (PW-10), Maqsood Ahmad (PW12) and Shah Nawaz (PW-13).
Their evidence is quite trustworthy and reliable. They were cross-examined at length but they corroborated each other on all material aspects of the case and their evidence is fully supported by the medical evidence furnished by Dr. Waseem Ullah Khan (PW-7). We are, therefore, of the view that the prosecution has fully proved its. Case against the appellants beyond the shadow of any doubt.
16. Now- coming to the quantum of sentence, we have noted certain mitigative circumstances in favour of Muhammad Mansha appellant Firstly, we have disbelieved the evidence of alleged recoveries of. Pistols (P-6, P-7 & P- 8), motorcycle (P-5), mobile phone (P-9) and currency notes (P-10 & P-11) due to the reasons mentioned in paragraphs No. 12 & 13 of this judgment, and secondly, Muhammad Mansha appellant has been attributed a single fire shot on . The person of Tanveer Ahmad (deceased). He did not repeat any injury on the person of the deceased and he did not cause any injury any member of the complainant party, therefore, we are cf the view that it is not a case of capital punishment, It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding question of his sentence as well, In this regard, we respectfully refer the case of "Mir Muhammad alias Miro v. The State? (2009 SCM R 1188) wherein, the Hon'ble Supreme Court of Pakistan at page 1191 was pleased to observe as under:- "9. It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
In another case "Ansar Ahmad Khan Barki v. The State and another" (1993 SCM R 1660), the. Hon'ble Supreme Court of Pakistan has held ;at the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home against the accused for the award of normal penalty of death. We are convinced that Muhammad Mansha appellant, in the peculiar circumstances of this case deserves the benefit of doubt to the extent of his sentence one out of^o provided under Section 302(b) of the Pakistan Penal Code, therefore, in our view the death sentence awarded to the appellant Muhammad Mansha is quite harsh. While treating it a case of mitigation, we have fortified our view by 4 judgment of the Hon'ble Supreme Court of Pakistan imported in the case of "Ahmad Nawaz and another v. The State (2011 SCM R 593) wherein at page 604, the Hon'ble apex Court of the country, has been pleased to lay emphasis as under:--- "10. The recent trend of the Courts with regard to the awarding of penalty is evident from several precedents, In the case of iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that This is settled law that provisions of Sections 306 to-608, P.P.C, attract only in the cases of Qatl-e-Am liable to qisas under Section 302(a), P.P.C, and not in the cases in which sentence for Qatl-e-Am has been awarded as ;Nazir under Section 302(b), P.P.C. The difference of punishment for Qatl-e-Am as qisas and tazir provided under Sections 302(a) and 302(b), P.P.C, respectively is that in a case of qisas, Court has no discretion in the matter of sentence .Whereas in case of tazir Court may award either of the sentence provided under Section 302 ib). P.P.C, and exercise of this discretion in the case of sentence of tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender s absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-e-Am, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMB 4, Faqir Ullah v. Khan-uz-Zaman 1999 SCMR 220? Muhammad Akram v. State 2003 SCM R 855 and Abdus Salam v. State 2000 SCM R 338." The Court while maintaining the conviction under Section 302(b), P.P.C, awarded him sentence of life imprisonment under the same provision and also granted him the benefit of Section 382-B, Cr.P.C, In Muhammad Riaz and another v. The State (2007 SCM R 1413) while considering the penalty for an act of commission of Qatl-e-Am it was observed that "No doubt, normal penalty for an act of commission of Qatl-e-Am provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of ' sentence, because no hard and fast rule can be applied in each and every case." In Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SGMR 502) it has been rioted that:- "In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course..."
17. In the light of above discussion, the conviction of Muhammad Mansha (appellant) under Section 302(b), P.P.C, awarded to him by the learned Trial Court is maintained, however, his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon him by the learned Trial Court is maintained. We have noted that in the impugned judgment of the learned Trial Court, it has only been mentioned, that in case of nonpayment of compensation, accused Muhammad Mansha shall further undergo six months and the word imprisonment either rigorous or simple has not been mentioned in the impugned judgment. We, therefore, hold that in case of nonpayment of compensation amount, the appellant Muhammad Mansha will undergo simple imprisonment for six months.
18. Consequently, Criminal Appeal No. 187-J of 2008 is partly dismissed. Similarly with the above modification in the quantum of sentence of Muhammad Mansha (appellant), Criminal Appeal No. 740 of 2008 is also partly dismissed Murder Reference No. 150 of 2008 is answered in the NEGATIVE and the sentence of death of Muhammad Mansha (convict) is NOT CONFIRMED. However, all the convictions and sentences of Muhammad Mansha and Haider All (appellants) for charges under Sections 324, 353, 440 and 34, P.P.C, are upheld and maintained. All the sentences of the appellants shall run concurrently. Both the appellants are, however, awarded the benefit of Section 382-B of the Code of Criminal Procedure.