IJAZ AHMED CHAUDHRY, J. -- By this judgment we propose to dispose of Criminal Appeals Nos. 55 and 56 of 2003 as both these appeals have arisen out of a common impugned judgment in which Zeeshan Afzal appellant was convicted under Section 302(b), PPC and was sentenced to death as Tazir on two counts for committing Qatl-e-amd of Mst. Shahnaz Iqbal and Mst. Mahpara Younis and to pay Rs. 000 on each count as compensation to the legal heirs of both the deceased ladies or in default of payment of compensation to further undergo R.I. for ten years.
2. Vide Short Order of even date announced in open Court we have disposed of the above two appeals as under:-- "For reasons to be recorded later Criminal Appeal No. 55 of 2003 filed by the convict appellant Zeeshan Afzal alias Shani is dismissed. However, in view of the facts and circumstances of the instant case sentence of death awarded to the appellant Zeeshan Afzal alias Shani is converted into imprisonment for life with further direction to pay Rs. 5 Lacs as compensation under Section 544-A, Cr.P.C, separately to the legal heirs of deceased Shahnaz Iqbal and Mahpara Younis, In default of payment of compensation he shall further undergo S.I. for six months on each count.
Both the sentences shall run concurrently. Benefit of Section 382-B, Cr.P.C, is also extended to him: Criminal Appeal No. 56 of 2003 is dismissed."
3. Brief facts of the case are that on 13.2.2001 around 2-00 p.m. complainant Waqqas Younis (P.W.7) made a statement before Muhammad Munir, S.I. (P.W. 14) to the effect that on 13.2.2001 at about 10- 00 a.m. he alongwith his maternal cousin Muhammad Usman Aslam had gone to the City in connection with a piece of work' whereas his younger brother Adnan Younis had proceeded to the school and his mother Mst. Shahnaz Iqbal and sister Mst. Mahpara Younis aged 18/19 years were present in the house. The complainant and his cousin Usman came back to the house around 1-00 p.m. and found the smaller entrance of the gate open. They entered the house and found the doors of different rooms also open and the household articles were lying scattered. When the complainant entered the room of his sister, he saw dead-, bodies of his mother and sister in the bathroom lying in pool of blood. The throats of both his mother and sister were cut from front side with a sharp-edged weapon. On hearing the cries of complainant Muhammad Usman Aslam was also attracted. The complainant came out of the house and started raising alarm whereupon a number of residents of the Mohallah reached there. Safdar Ali and Muhammad Tariq P.Ws, told him that at about 11-00 a.m. they both were passing in front of the house when they saw three persons standing out of the door of his house and one of them was pushing the bell. They also stated that they can identify the said three persons if they appear before them. The complainant suspected Zeeshan Afzal who is son of his maternal uncle, responsible for the incident. Leaving Malik Muhammad Akhtar, Advocate near the dead-bodies the" complainant left to report the matter to police. On the complaint (Exh.PA) formal F.I.R. No. 48 of 2001 was accordingly registered under Section 302/34, P.P.C, at Police 'Station City Toba Tek Singh. Appellant Zeeshan and other co- accused were arrested on 16.2.2001 and after usual investigation a report under Section 173, Cr.P.C, was submitted before the learned Trial Court where the accused- were charge-sheeted to which they did not plead guilty whereupon the prosecution in order to prove its case against the accused persons produced as many as fourteen witnesses in all. After conclusion of the prosecution evidence all the three accused were examined under Section 342, Cr.P.C, wherein they refuted all the allegations levelled against them and professed their innocence. They did not. opt to appear as their own witnesses under Section 340(2), Cr.P.C.
4. After conclusion of trial, learned Trial Court convicted appellant Zeeshan Afzal under Section 302(b)/34; P.P.C, and sentenced him to^death as Ta'zir on two counts for committing qatl-e-amd of Mst. Shahnaz Iqbal and Mst. Mahpara Younis deceased and to pay Rs. V,00,000^n each count as compensation to the legal heirs of .both the deceased ladies and in default of payment of compensation to undergo R.I. for 10 years. Appellant Zeeshan Afzal was also convicted under Section 7 of Anti-Terrorism Act, 1997 and sentenced to death on two counts and to pay a fine of Rs.
1,00,000 on each count and in default of payment of compensation he was to undergo R.I. for 10 years.
5. Muhammad Yasir and Rizwan Ali respondents were convicted under Section 302(b), P.P.C, and were sentenced to life imprisonment as Tazir on two counts for committing qatl-e-amd of Mst.
Shahnaz Iqbal and Mst. Mahpara Younis and to pay Rs. 1,00,000 on each count as compensation to the legal heirs of both the deceased ladies or in default of payment of compensation to further undergo R.I. for seven years on two counts. They were also convicted under Section 7 of Anti- Terrorism Act, 1997 and sentenced to life imprisonment on two counts and to pay a fine of Rs. 10.000 on two counts or in default Of payment of fine to further undergo R.I. for seven years on two counts.
All the afore-mentioned three accused were also convicted under Section 392/34, P.P.C, and were awarded R.I. for ten years each and to pay a fine of Rs. 50,000 each or in default of payment of fine to further undergo R.I. for 21/2 years each. They were also convicted under Section 411, P.P.C, and were awarded R.I. for 3 years each and to pay a fine of Rs. 20,000 each or in default of payment of fine they shall further undergo R.I. for nine months each. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C, was allowed to them.
6. Aggrieved of the judgment of the learned Trial Court, appellant Zeeshan Afzal, Muhammad Yasir and Rizwan Ali jointly filed a jail appeal (Criminal Appeal No. 187-J of 2001). Yasir and Rizwan Ali also filed two separate appeals, Criminal Appeals Nos. 735 and 927 of 2001. State also filed Criminal Appeal No. 787. of 2001 for enhancement of sentence of the co-accused Muhammad Yasir and Rizwan Ali from Imprisonment for life to maximum penalty of death. Learned Trial Court submitted Murder Reference No. 16-T of 2001 for, confirmation of death sentence awarded to appellant Zeeshan Afzal. Learned Division Bench of the Lahore High Court vide impugned judgment accepted Criminal Appeal No. 735 of 2001 filed by Rizwan Ali and Criminal Appeal No. 927 of 2001 filed by Muhammad Yasir and both the co-accused were acquitted of all the charges.' Criminal Appeal No. 187-J of 2001 to the extent of appellant Zeeshan Afzal was dismissed and all the convictions and sentences as awarded by the learned Trial Court were maintained with modification that the sentence of imprisonment in default of payment of compensation under Section 544-A, Cr.P.C, on each count shall be S.I. for six months only. Murder Reference sent by the Trial Court was* answered in the affirmative.
7. Learned counsel for the appellant/convict contends that the prosecution has miserably failed to prove the case against the appellant; that recovery is not believable as the recovery has been effected in violation of Section 103, Cr.P.C.; that the case of the appellant is that he has been falsely implicated; that both the witnesses of Wajtakar P.W.8 Safdar Ali and P.W.9 Yousaf Ali are chance witnesses and they have failed to show their presence at the spot; that P.W.8 Safdar Ali is closely related to the appellant and identification parade to the extent of appellant is useless. The identification parade has been conducted in violation of instructions mentioned in the High Court Rules and repeatedly it has been held by this Court that identification parade in such circumstances is not reliable. Features of accused have not given by the P.Ws, in their statements before the police. The Investigating Officer has planted the recoveries; and that both the Courts below have wrongly relied upon the evidence, In the alternate learned counsel prays for reduction in sentence of the appellant Zeeshan Afzal.
8. Learned counsel for the respondents Yasir and Rizwan has contended that both the respondents have been acquitted by the learned Lahore High Court; that the prosecution evidence is not worthy of credence. That the witnesses of Wajtakar could not see the incident and they had wrongly made their statements; that the recoveries are useless and do not connect the respondents with the commission of crime and that the appeal against acquittal may be dismissed.
9. Learned Additional Prosecutor-General on the other hand has supported the judgment of the High Court to. the extent of conviction and sentence of the appellant/convict Zeeshan Afzal and submitted that there is sufficient evidence available to connect the convict/appellant with the commission of crime; that P.Ws. 8 and 9 had categorically stated that they had seen the accused before and after the incident; that recoveries have been effected on his potation, therefore, the same are worthy of reliance. Arguing the appeal filed against acquittal of Yasir and Rizwan, learned Additional P.O. contended that the prosecution has fully proved the case against both the respondents and the impugned judgment to the extent of acquittal passed by the learned High Court is based on conjectures and surmises.
10. We have heard the arguments of learned counsel for the parties and have perused the record.
11. Incident in the present case has taken place between 10-00 a.m. to 1-00 p.m. on 13.2.2001.
Statement of complainant Waqas Younis son of deceased Shahnaz Iqbal and brother of Mst.
Mahpara Younis was recorded at 1-15 p.m. on the basis of which F.I.R. (Exh.PA/1) was registered at 2- 10 p.m. According to the story of the prosecution, complainant Waqas Younis when entered in his house at p.m. the doors of the rooms were open. He saw dead bodies of his mother and sister socked in blood lying in the bath room and their throats were cut with sharp-edged weapon. He raised hue and cry which attracted the residents of the locality. P.W.8 Safdar Ali and Muhammad Tariq (given up P.W.) told him that they had seen three persons standing in front of the door and one of them was pressing the door bell. He had shown a suspicion upon Zeeshan Afzal alias Shani, appellant, regarding his involvement in the present incident. Appellant Zeeshan Afzal and acquitted accused were arrested on 16.2.2001 and recoveries were effected on 1.3.2001 from their places of residences. We have found that the prosecution has been able to produce sufficient evidence to connect Zeeshan Afzal appellant in Criminal Appeal No. 55 of 2003 with the commission of crime. F.I.R, has been recorded without any delay and name of the appellant has been mentioned as a suspect of the crime. Complainant Waqas Younis is a close relative of Zeeshan Afzal. Both are cousins inter se. He had no motive to falsely implicate Zeeshan Afzal in the present case. He had appeared as P.W.7 and had fully supported the prosecution story. He was subjected to lengthy cross-examination but the defence had failed to show any ill-will on the part of Waqas Younis (P.W.7) "For false implication of Zeeshan Afzal. Even otherwise bona fide of Waqas Younis is crystal clear as he did not involve the convict appellant in the present case by specifying any role of causing injury to the deceased. He had only shown suspicion against the appellant.
After the arrest of the appellant on 16.2.2001 he was sent to judicial lock-up and after holding of identification parade he was remanded to police custody and during investigation he led to the recovery of blood-stained chhurri which was sent to the office of the chemical examiner and report of the chemical examiner (Exh.PAA/1) was in positive. P.W.8 Safdar Ali has identified him during the identification parade as one of the accused. During the cross-examination he has specifically stated that accused was not previously known to him and similarly Yousaf Ali P.W.9 also identified the appellant and co-accused during the identification parade. Both of them have explained the reasons for their presence at the spot at the time of incident when they had seen the appellant and co-accused in front of the door of the complainant. Both these witnesses have no ill-will to falsely implicate the appellant in the present case and we find that both the Courts below had rightly relied upon the statements of the witnesses who had identified the appellant in the identification parade as one of the accused who was present at the spot on the day of incident. As far as the contention raised by the learned counsel for the appellant that the features of the accused were not mentioned in the identification parade, suffice it to say that both the witnesses had mentioned in their statements before the police under Section 161, Cr.P.C, that they three persons were found standing in front of the house at the time of the incident and according to P.W.9 three persons were coming out of the house when he had seen them. They are independent witnesses and have no motive to falsely implicate the appellant in the present case. They had identified the accused including the appellant in the identification parade out of 27 persons. No objection was raised at the time of the identification parade by the accused that he was shown to the witnesses prior to the identification parade. Appellant was arrested on 16.2.2001, he was sent to judicial lock-up on 17.2.2001 and identification parade was conducted on and both the Courts below have rightly relied upon the identification test parade qua the involvement of the appellant.
12.Each criminal case has its own facts and circumstances and we find that the witnesses had made consistent statements qua the involvement of the .appellant. Their statements are also fully supported by the fact that he was the only accused whose name was mentioned as a suspect of this heinous incident without any delay. The statements of witnesses are further corroborated with the- recovery of blood-stained chhurri at the instance of the accused on 1.3.2001 from his residential house and in such circumstances we find that case against the appellant has been proved beyond any shadow of doubt and findings of both the Courts below are supported qua the involvement of the appellant in the present case, therefore he has rightly been convicted under Section 302(b), P.P.C, and we do not. find any improbability or illegality in the impugned judgment to his extent.
13.As far as the quantum of sentence is concerned, complainant in his statement under Section 154, Cr.P.C, has not mentioned any motive in the commission of the crime by the appellant though he had tried to explain the motive during the trial but it cannot be relied upon as it was an improvement at the trial stage, lt has been repeatedly held by this Court that if motive is not alleged or is not proved, normally the sentence of death is converted into imprisonment for life.
Reliance in this behalf is placed on (i) Muhammad Ashraf v. The State (2012 SGMR 419), (ii) Hasil khan v. The State (2012 SCM R 1936), (iii) Jehanzeb v. The State 2003 SCM R 98, (iv) Muhammad Ashraf Khan Tareen v. The State (1996 SCM R 1747) and (v) Iftikhar Ahmad v. The State (PLD 1990 SC 820). Even otherwise, what happened immediately before the incident and the manner in which the incident had taken place has not been brought on record by the prosecution.
14.Though the appellant is involved in a heinous offence but in his statement under Section 342, Cr.P.C, he had mentioned his age as 16/17 years and it has already been held by this Court that if an accused is less than 18 years of age the sentence of death is converted into imprisonment for life.
Even otherwise he is behind the bars continuously since 16.2.2001 and has spent a period of more than 13 years in the jail. Ail these factors have been considered by us and we find it a fit case for conversion of sentence of death into imprisonment for life. Accordingly we, while maintaining the conviction of the appellant under Section 302(b), P.P.C, and under Section 7, ATA, reduce the sentence of death into imprisonment for life with direction to pay Rs. 5 lacs as compensation under Section 544-A, Cr.P.C, separately to the legal heirs of deceased Shahnaz Iqbal and Mahpara Younis, ln default of payment of compensation he shall further undergo S.I. for six months on each count.
Both the sentences shall run concurrently. Benefit of Section 382-B, Cr.P.C, is also extended to him.
15.As far as conviction of the appellant Zeeshan Afzal under Sections 392 and 411, P.P.C, is concerned, we find that the recovery of articles which were allegedly taken away by the accused at the time of the incident is not believeable due to the reason that these articles were not mentioned in the statement recorded under Section 154, Cr.P.C., even subsequently no evidence was collected whether these articles were taken away by the accused and inasmuch as the prosecution has not been able to prove that the incident of Dacoity took place in which both the deceased have lost their lives, hence conviction and sentences under Sections 392 and 411, P.P.C, of the appellant Zeeshan Afzal are also set aside.
16.As a result of above discussion Criminal Appeal No. 55 of 2003 is dismissed with modification in sentence as stated above.
17.As far as Yasir and Rizwan, respondents in Criminal Appeal No. 56 of 2003 are concerned, though they were arrested during investigation on 16.2.2001 and case of* the prosecution is that both the accused had participated in the incident but admittedly they were not known to the witnesses and in the identification parade no role has been ascribed to them. Their case is distinguishable from the case of convict Zeeshan Afzal as his name was specifically mentioned in the F.I.R, and he is the only suspect of the incident. He is closely related to the complainant and there is. no reason for his false implication. He led to the recovery of blood-stained chhurri and report of the chemical examiner was in positive whereas, no weapon of offence has been recovered from Yasir and Rizwan. The recovery at the instance of Yasir and Rizwan is also not worthy of reliance as the complainant Waqas is the resident of the same house where the incident had taken place but he had not mentioned in the complaint that certain articles were taken away by the accused. Even otherwise, these articles are easily available in the market and no specific mark was found on the said article to connect the recoveries with the commission of crime. For awarding conviction to the respondents the prosecution needed corroboration which is lacking in the case in hand. We find that both the respondents have rightly been acquitted by the learned High Court for valid reasons and it has been repeatedly held by this Court that interference in appeal against acquittal is a rare phenomena, ln such circumstances we find no reason for interference in the findings of acquittal recorded by the learned High Court. Criminal Appeal No. 56 of 2003 filed by the State is, therefore, dismissed.
18. These are the reasons of our short order of even date announced in open Court.