SH. NAJAM UL HASAN, J.---Appellants Sajid son of Khan Afsar, Sajid son of Mian Khan and Khan Afsar son of Samandar Khan filed appeal against their convictions and sentences and challenged the impugned judgment dated 9-3-2010 of the learned Additional Sessions Judge-III. Abbottabad in the Peshawar High Court Abbottabad Bench. The appeal was heard by the Division Bench of the Peshawar High Court and after going through the relevant law vide order dated 12-6-2013 while considering the matter falling within the jurisdiction of Federal .Shariat Court transmitted the appeal along with connected murder reference and criminal revision petition to this Court. Vide Order dated 9-9-2013 of this Court the appeal of the appellants. (Cr. Appeal No,22-I of 2013) was admitted for regular hearing, while condoning the delay in filing the appeal. Through the impugned judgment dated 9-3-2010. The appellants Sajid son of Khan Afsar. Sajid son of Mian Khan and Khan Afsar son of Sumandar Khan were convicted and sentenced in case FIR No,95. Dated 15-6-2006, P.S. Baghnotar. District Abbottabad by the learned Additional Sessions Judge-III, Abbottabad. Details of conviction and sentence are as follows: "Appellants Sajid son of Khan Afsar and Sajid son of Mian Khan. Both are convicted under section 302(b), P.P.C. And sentenced to death (on two counts) as ta'zir, they both be hanged by neck till their death. Both the appellants Sajid son of Khan Afsar and Sajid son of Mian Khan are also convicted under section 324. P.P.C. And both are sentenced to undergo five years' R.I and both were also convicted under section 337-A(iv), P.P.C. And convicted and sentenced to undergo four (4) years' R.I and both were equally liable to pay Arsh to the injured P.W. Shaheen Ashraf 15% of the Diyat amounting to Rs,100,000 (one hundred thousand) equally which be recovered from the accused equally and be paid to the injured P.W. Shaheen Ashraf and they be not released from jail till the payment of Arsh amount. Accused Khan Afsar son of Samundar Khan is convicted and sentenced for life imprisonment (on two counts) as Ta'zir. The execution of the death sentence will be subject to the confirmation of the honourable Peshawar High Court Peshawar. The death reference be prepared and sent to the honourable Peshawar High Court for confirmation. The compensation within the meaning of section 544-A, Cr.P.C. Was imposed upon all the above mentioned convicted accused Rs,300,000 (three hundred thousand). On the recovery of the same it shall be paid to the legal heirs of the deceased Haji Rafique as per their Shari shares. In default they further undergo 6 months' S.I under section 544-A(2), Cr.P.C. All the sentences of imprisonment are concurrent. The benefit of section 382-B. Cr.P.C. Extended to all the convicted accused named."
2. As all the matters i.e, Cr. Appeal No,22-I of 2013 (Sajid son of Khan Afsar, Sajid son of Mian Khan and Khan Afsar son of Samundar Khan v. The State), Cr. Revision No,33-I of 2013 (Khursheed v. Khan Afsar etc.) for enhancement of sentences of the respondents and Murder Ref. No,2-I of 2013 (State v. Sajid son of Khan Afsar and Sajid Son of Mian Khan) have arisen out of the same judgment, so they are disposed of through this single judgment.
3. The prosecution case in brief is that Syed Mukhtiar Hussain Shah (P.W.9) SHO, P.S. Bagnotar District Abbottabad received information on 15-6-2006 by wireless from SHO Bakot that near Giah Morr, he saw a Suzuki Jeep Potohar hearing No,7508-OKA with two seriously injured persons who were being brought on official police mobile to Ayub Teaching Hospital Abbottabad. On this information. The SHO, P.S Bagnotar Syed Mukhtiar Hussain Shah P.W.9 reached the hospital and found the dead body of Haji Rafique son of Faqir Muhammad, lying there while one Shaheen son of Raja Muhammad Ashraf was seriously injured having fire arm injury on his right side of mouth. It was informed that a third person namely Khurshid son of Azad Khan was also with them at the time of occurrence in the said jeep, but he was found missing from the emergency ward of the Ayub Teaching hospital Abbottabad. Injured Shaheen was not in a position to talk due to injury on his mouth as he was unconscious. Haji Rafique was murdered while Shaheen was injured by fire arm weapon by some unknown persons or person, their injury statements were prepared and murasila Exh.PA/1 for registration of the case was drafted and on its basis instant case was registered under sections 302, 324, 34, P.P.C. Against unknown accused.
4. After registration of case, investigation was conducted by Muhammad Javed Khan, Inspector (P.W.17). During investigation section 17(4) Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 was added in place of 302, 324, 34, P.P.C. The accused Sajid son of Khan Afsar was arrested and on his pointation dead body of Tariq their co-accused was recovered. The I.O.
Collected different kind of evidence and material recorded statement of witnesses. The accused Sajid son of Khan Afsar made confessional statement before learned Magistrate, he along with his co-accused Sajid son of Mian Khan were identified by P.W. Khurshid Ahmed in identification parade got conducted by learned Magistrate in Jail. After completion of investigation, the I.O. Prepared report which was submitted by the SHO under section 173, Cr.P.C. Before the court requiring the accused to face trial.
5. The learned trial Court after fulfilling usual legal formalities framed charge against the accused on 29-11-2006 under section 17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The accused did not plead guilty and claimed trial.
6. The prosecution produced 18 witnesses to prove its case. The gist of the deposition of the witnesses is as follows:-
(1) P.W.1/Muhammad Nawaz Constable was a witness of recovery memo. Of shalwar and qamecz of deceased/accused Tariq and accused Sajid son of Mian Khan for sending the same to the Chemical Examiner for analysis.
(2) P.W.2 Rifat Aamir, Senior Civil Judge/Judicial Magistrate is a witness who recorded confessional statement of accused Sajid Khan son of Khan Afsar after fulfilling all legal formalities on 26-6-2006.
(3) P.W.3 Dr. Syed Farooq Shah. CMO, Ayub Teaching Hospital Abbottabad examined injured Shaheen son of Muhammad Ashraf brought by Gul Abbas # 1181 on 15-6-2006 at 1-15 a.m. And found following injuries on his body:
(i) A split wound large size on the starting from upper Jaw with severely bleeding upto right eye. All the organs i.e, upper Jaw with zygomatic nasal bone plus right orbital bone were fractured. Bullet pieces were seen in the X-Ray of skull. Lower jawbone, mandible bone was also observed as fractured with dental injury. Patient was referred to PIMS Islamabad for further treatment and expert opinion/management of eye plus ENT plus Dental and Nero Surgeon.
Weapon used was fire arm.
Nature of Injury was highly dangerous.
Probable duration of injury was 2 hours.
P.W.3 has also conducted post mortem examination of Haji M. Rafique deceased on 15-6-2015 at 2- 00 a.m. And observed following on his body:- Thorax: 2nd and 3rd ribs fractured, Pleura buried. Left lung ruptured. Pericardium and heart vessel ruptured.
Stomach: Contains semi digested fluid; small and large intestine contains fluid and gases. Bladder contained urine.
Remarks: The cause of death was observed to be fire arm injury on chest, bullet cross the heart and left side lungs which caused massive bleeding due to which death was occurred on the spot.
The dead body was received at 1-12 a.m. Dated 15-6-2006.
Time between injury and death was no time meaning thereby death was instantaneous. The probable time between death PM was 2 hours approximately.
(4) P.W.4/Dr. Tahir Habib CMO, ATH Abbottabad conducted PM examination of Tariq son of Khan Afsar caste Pathan aged about 20-25 years resident of Bagnoter brought by Constable Khursheed No,62 of PS Bagnoter. P.W.4 said that the dead body was brought by brother of deceased Sajid.
External Examination: A well-built man wearing shalwar qameez with blood on clothes chest and abdomen, immaculate with rotten smell and maggots all over the body, specially chest, back and pelvis, face head OK fractured right arm lying on PM table.
Injuries: Four entries wounds on right side on chest right hypocondrium and right mid auxiliary line maggots coming out of wounds.
(2) Exit from the right side back 6 inches from mid claviclar line back also emaciated and maggots coming out of wounds.
(3) Whole chest and back was ecchymosed and blackened.
(4) Left side of chest and abdomen OK, right side opened and right lunges base full of bloods liver injured at, portahepaties, Diaphragm also injured chest and right side of abdomen, i.e,, right hypocordium full of maggots.
(5) Fractured right humorous in the mid shaft protem.
Granium and spinal Card.
No cranium and Spinal card or vertebral.
Ghorax: Four entry wounds on right side of chest with maggots coming out, ribs OK, right lung plurae injured, larynx and trachea is OK, right lungs base of lungs full of blood and injured, Right lower lobe injured. Left lungs and heart OK. Main vessels/aorta inferior vaincava OK, right lungs vessels injured.
Abdomen, two entry wounds on right hypocordium otherwise abdominal wound intact, Two holes in peritoneum at right hyporodium. Two holes in diaphragm at right hypocordium. Live injured at the side of pot hepatices and right lobe of lever injured at two sides, left lobe OK, at right hyporocorism; external generation and perineum full of maggots.
Fracture on right Humorous at mid shoft only.
Opinion: In my opinion, the death of deceased was due to firearm injury to the vital organs (i.e, porta hepatis of -liver and right lobe of liver) and right lower lobe of right lungs leading from the Vital structure was the main cause of death. Probable time between injury and death was instantaneous and death to PM is 5 to 7 days.
(5) P.W.S/Muhammad Aslam, ASI is marginal witness of various recovery memos.
(6) P.W.6/Jhanger Khan, SHO, P.S Bagnoter who after completion of the investigation, submitted complete challan Exh.P.W.6/1 against present accused before the Court.
(7) P.W.7/Muhammad Nawaz, IHC who on receipt of Murasala Exh.PA/1 registered formal FIR No,95 dated 15-6-2006 under sections 302/324, P.P.C.
(8) P.W.8/Muhammad Ayub Khan, ASI is member of the investigation team. On 21-6-2006 in his presence accused Sajid Khan son of Khan Afsar while in Police Custody, led the police party to the place where the dead body of Muhammad Tariq (deceased) was concealed on pointation dead was recovered and taken into possession.
(9) P.W.9/Mukhtiar Hussain Shah, Inspector is the complainant of this case. He reiterated the version given in the FIR Exh.PA.
(10) P.W.10/Afzal Ahmed Khan, Civil Judge/Judicial Magistrate, Abbottabad. On 4-7-2006, he visited District Abbottabad for conducting the identification parade of son of Mian Khan by P.W. Khurshid Ahmed. The accused was correctly identified by the P.W.
(11) P.W.11/Muhammad Faisal Khan, Civil Judge/Judicial Magistrate, Abbottabad. On 29-6-2006 at 1:30 pm visited District jail for conducting the identification parade of accused Sajid son of Khan Afsar in judicial lockup. The accused was correctly identified by P.W. Khurshid Ahmed.
(12) Muhammad Sheraz appeared as P.W.12 and deposed that he along with Abid on pointation and recovery proceedings by accused Khan Afsar who was at that time in hand cuff and he led the police party to his house and from his house, he took out and produced clothes consist of Shalwar Qameez and jacket and cloth sheet stating that same were worn by him at the time of commission of offence.
(13) Zaheer Ahmed, appeared as P.W.13 and reiterated the version given by P.W.12.
(14) P.W.14/Atif Shah is marginal witness of recovery memo. Ex-P.W.14/1 through which accused Sajid son of Khan Afsar while in police custody led the police party to the slope place in Dhaka Rakh situated below his house and produced a repeater shot gun-.12 bore without number (Exh.P/24 along with bandolier containing 17 live cartriges).
(15) Khursheed appeared as P.W.15 and deposed that after due satisfaction by the investigation and witnesses, he charged Sajid and Tariq (deceased) sons of Khan Afsar, Khan Afsar son of Samundar Khan and Sajid of son of Mian Khan for murder of his brother Haji Rafique and causing injuries to the Shaheen Ashraf P.W.
(15.A) Shaheen Ashraf is an injured eye-witness P.W.15-A he was with the deceased Haji Muhammad Rafique and Khurshid Ahmed P.W. On the day and time of occurrence, they had gone to Ayubia in the Potohar Jeep.
(15.B)' Khursheed son of Azad appeared as P.W.15-B he accompanied the deceased and the injured Shaheen on the date and time of occurrence in the Pothhohar Jeep and witnessed the occurrence.
(16) Malik Aman, IHC appeared as P.W.16 who deposed that on 28-6-2006, he was entrusted with the case property of the present case which he handed over in the laboratory after obtaining the receipt.
(17) P.W.17/Muhammad Javed Khan, Inspector is the I.O. Of this case. He conducted the investigation of the case.
(18) Abdul Aziz Khan Afridi, DSP who during the days of occurrence was posted as Inspector/Incharge Investigation, Abbottabad. He partly investigated the case.
7. After completion of prosecution evidence, the learned trial Court recorded the statements of the accused under section 342, Cr.P.C. On 12-12-2009. The accused persons denied the allegations levelled against them. In reply to a crucial question, why the P.Ws. Have deposed against you, all the accused persons individually stated as under:- P.Ws. Produced by the prosecution were not consistent in their evidence and they have created contradictions and ambiguity in their evidence. Moreover, prosecution with ulterior motive charged us and there was no direct evidence against us. In fact, my brother Tariq was murdered in the instant case by the complainant party who have suppressed this fact and when we came to know about the missing of my son and went to P.S. For making the report we were booked in the instant case.
The accused persons neither opted to make their statements on oath under section 340(2), Cr.P.C.
Nor produced any witness in their defence.
8. Upon the conclusion of the trial, the learned trial Court vide judgment dated 9-3-2010 has convicted accused persons as mentioned herein before in para-1 of this judgment.
9. Mr. Masood Azhar, Advocate, learned counsel for the appellants at the very outset states that at the first instance the injured were seen in the Jeep by the SHO Bakot (Saeed Khan) and he informed the SHO Bagnotar (Mukhtiar Hussain Shah, complainant) who got the FIR registered on the information which was provided by SHO Bakot. The SHO Bakot was not proced in court. So the FIR is of no value as the same is based on hearsay information. The learned counsel has strongly argued that the main star witness Shaheen Ashraf injured was examined by the Police on 25-6- 2006 i.e, after ten days of the occurrence. In his statement, he has not named anyone as an accused, no specific weapon of offence was mentioned and no description of assailants was given in his statement. He was the star witness, but he was not associated in identification parade of accused such lapse in the prosecution case makes the whole case doubtful.
10. It is further argued that Khurshid Ahmed (P. W.15-B), the other eye-witness was statedly present with the injured and the deceased in the Hospital on the day of occurrence but his statement was not recorded at that stage, rather, his statement was recorded after a delay of four days on 19-6- 2006. No reason for his appearance before police after such delay has been brought on record.
Even otherwise, in his statement, he has not named anyone as an accused he has not given the description of the assailants. He has not specified the weapon used in the crime, rather used the general word fire arm weapon. It was a night occurrence, no source of light was described but witness. Khurshid Ahmed identified the accused Sajid son of Khan Afsar and Sajid son of Mian Khan in the identification parade. In fact the accused were in police custody and were shown to this witness before identification parade. Even otherwise, as no specific role was assigned to any of the accused in the identification parade, so such identification parade has got no legal value. The belated statement of witness makes the whole case doubtful. While describing the judicial confession made by Sajid son of Khan Afsar, the learned counsel states that such confession was not recorded in accordance with law. In the said confession Sajid son of Khan Afsar has not stated any thing as to who was responsible for killing the deceased or causing injury to Shaheen P.W. Or firing on the other deceased Tariq. He only stated that at the time of occurrence he made two fires and similarly the other accused Sajid son of Mian Khan also made two fires and they heard a voice of fire from the side of Tariq accused. He has not mentioned of any fire hitting anyone. Before making such confessional statement he was in Police custody and there was no reason for him to make judicial confession, specially when his own brother Tariq was also killed in the same occurrence. All the three weapons were statedly recovered on the pointation of Sajid son of Khan Afsar accused/appellant. The crime empties were collected from the place of crime on the day of occurrence on 15-6-2006 but they were sent to Fire Arms Expert on 28-6-2006 i.e, after recovery of weapons. No reason for sending the crime empties and the weapons together at such a belated stage for comparison has been brought on record. Possibility of emptied. Being prepared after firing from the weapon already recovered and sending them together with the weapon and getting a positive report cannot be ruled out. Lastly, it is argued that in the FIR, the statement of the injured, even statement of other eye-witness, there is nothing mentioned as to how Tariq accused received injury in the occurrence and later on died thereof. Such lapse in the prosecution story makes the whole case highly doubtful. It rather, indicates that the prosecution is suppressing the truth to save their own skin in the matter of murder of Tariq accused in the same occurrence. The learned counsel states that as per first inspection notes and the site plan prepared by the I.O. One crime empty of .12-Bore gun was recovered from the distance of 20 `qadam' away from the place of occurrence and thereafter there was a trail of blood. Such circumstance rather indicates that deceased Tariq was shot when he was nearly sixty feet away from the Jeep and the place of occurrence. It is reiterated that the prosecution has not come with clean hands and has failed to prove the case beyond reasonable shadow of doubt. The appellants are entitled to clean acquittal.
11. On the other hand, the learned Assistant Advocate General, Khyber Pakhtunkhwa assisted by the learned counsel by the complainant has argued that the parties have got no enmity. It was an attempt to commit robbery during which the deceased and the injured received injuries at the hand of accused/appellants. The matter was initially reported by an unconcerned police officer and later on after the statement of eye-witness Khurshid Ahmed P.W. Was recorded by the police, the whole occurrence came to light. In the FIR which was promptly recorded within an hour, the name of Khurshid P.W. Is duly mentioned and he was statedly present in the Jeep along with the deceased and injured when the occurrence took place. Khurshid Ahmed P.W.15 in his statement, has clearly described the whole occurrence, the number of accused, the place where they were standing and used their weapons in which the deceased lost his life and P.W. Shaheen Ashraf received serious injuries as a result of which, he lost his eye and face was disfigured. It was night occurrence and as such the fire received by Tariq deceased at the hand of his co-accused was not observed by the witnesses. The time of death of Tariq as mentioned in the post mortem report coordinates with the time of occurrence. One `chappal' of deceased Tariq was recovered from the place of occurrence whereas the other was later on found along with his dead body after six days which indicate that he was present and participated in the crime. All the five crime empties recovered from the spot were later on found to be wedded with weapons recovered on the pointation of the accused. It is strongly argued that the confessional statement of accused Sajid son of Khan Afsar cannot be ignored because the same finds corroboration from other material and the evidence which was earlier or later on collected. The recovery of dead body of Tariq on his pointation from a place which was at the distance from the place of occurrence is circumstance which implicate all the accused in this case. The identification of the accused by the eye-witness Khurshid Ahmed whose name was found mentioned in the FIR is a circumstance which fully implicate the accused/appellants in this case. The involvement of the accused/appellants in this case is fully established, so they are not entitled to exception and deserve sentence of death.
12. We have heard the learned counsel for the parties and have also gone through the record.
13. In this case, the FIR was got registered on the written statement of SHO, PS Bagnotar, District Abbottabad when he was informed by the SHO Bakot, that two injured persons found in a jeep were taken to hospital. The complainant reached the Hospital, one person Haji Muhammad Rafique was found dead having two gun shot injuries on his chest whereas the other Shaheen Ashraf was having one fire arm injury on his face and he was seriously injured. The name of eye-witness Khurhid Ahmed was mentioned in FIR and he was statedly present at the time of occurrence but he was not found at the Hospital when the SHO complainant came there and as such his statement was not recorded at that stage. Later on, he appeared before the Police on 19-6-2006 and narrated the whole story and thereafter section 17(4), Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 was added in place of sections 324, and 302(b), P.P.C. As mentioned in the FIR, Shaheen Ashraf, the injured P.W. After medical examination was immediately shifted to. Islamabad for treatment. It has been brought on record, that he was not in a position to talk, he remained in Hospital for almost a month, so that may be the reason for not associating him in the identification parade which was statedly conducted in the jail. The other eye-witness whose name was mentioned in the promptly lodged FIR later, on correctly identified accused Sajid son of Khan Afsar and Sajid son of Mian Khan in the identification parade conducted by the learned judicial A Magistrate. Sajid son of Khan Afsar was arrested on 21-6-2006 he got recovered the dead body of his brother, co-accused Tariq who statedly received firm arm injury in the same occurrence. As per his post mortem report he received the fire arm injury nearly at the same time of occurrence. As per confessional statement of accused Sajjad son of Khan Afsar, Tariq died while he was running away from the spot after receiving fire arm injury. The appellant Sajad son of Khan Afsar got recovered all the three weapons of offence used in the occurrence. As per confessional statement of Sajad son of Khan Afsar before the Magistrate, at the time of occurrence he (Sajid son of Khan Afsar) was armed with the repeater .12-Bore gun and he fired two shots similarly his co-accused Sajid son of Mian Khan fired two shots with the double barrel shot gun. Tariq deceased accused was statedly armed with .30-Bore pistol and at the time of occurrence he heard a fire shot from the direction where Tariq was standing. In his whole statement he has not mentioned as to who caused the injury to the deceased, the injured or the accused/decease Tariq, general allegation of firing at the spot by all the three persons is mentioned in the confessional statement. Two crime empties of .12-Bore gun were recovered from the right side of the jeep where the deceased Haji Muhammad Rafiq was sitting on the driving seat, one crime empty of .30-Bore pistol was recovered on the other side of the jeep where statedly Tariq was standing with the .30-Bore pistol. The deceased Haji Rafique received two fire shots with the .12-Bore gun on his chest and died at the spot whereas Shaheen Ashraf received one bullet injury on his face there was no exit wound and a broken pieces of bullet were observed by the doctor in his X-ray report. The second dead body of deceased Tariq was recovered after six days on the pointation of his brother Sajjad son of Khan Afsar his co-accused. In his post mortem examination the doctor observed multiple pellets injuries on his chest while making exit from the back of his body so it is clear that he received fire shot of .12-Bore Gun from a distance. Injured Shaheen Ashraf P.W.15-A received a bullet injury as discussed above and as per prosecution version only Tariq deceased accused was armed with .30-Bore pistol. He was standing on the side of Jeep where Shaheen injured was present. .30-Bore crime empty was recovered from that place and the same was found wedded with the pistol statedly used by Tariq deceased, the accused. So it is clear that Shaheen injured received fire arm injury at the hand of Tariq deceased. Similarly as per doctor, deceased Haji Rafique received .12-Bore gun shot injuries and at the time of occurrence Sajid son of Khan Afsar and Sajid son of Mian Khan were having .12-bore guns so they can be held responsible for causing these injuries to Haji Rafique.
14. The prosecution- has based its case on the statement of two eyewitnesses, the confessional statement of the accused the identification of the accused by one of the eye-witness, the recoveries of crime weapons on the pointation of appellant Sajid son of Khan Afsar and positive report of Fire Arm Expert. In the FIR the occurrence was not mentioned, only presence of injured P.W.
Shaheen the deceased Haji Muhammad Rafique and one Khurshid Ahmad P.W. Was mentioned.
Khurshid Ahmed was not seen in the hospital by the SHO or the I.O. Later on Khurshid appeared on his own after five days and narrated the whole story. While appearing in court he gave certain explanation for making his statement at such a belated stage. The thing remains that he was mentioned in the FIR which was recorded just after one hour of the occurrence on the statement of independent person, the SHO. Later on the presence of Khurshid at the time of occurrence was also admitted by the injured P.W. Shaheen Ashraf whose presence at the spot cannot be denied.
Khurshid P.W.15-B identified both the accused Sajid son of Khan Afsar, Sajid son of Mian Khan in identification parade duly conducted by the learned magistrates in jail. As Shaheen Ashraf injured P.W. Was unable to talk because of injury on his face he remained in hospital and as such his statement was recorded after ten days of the occurrence in Islamabad hospital when the doctor found him fit for making statement. Both these witnesses while appearing in court have stated the presence of four assailants at the spot who participated in the occurrence, two of the accused fired with their fire arms weapon resulted in death of Haji Muhammad Rafique and injury on the person of Shaheen Ashraf P.W. No specific weapon or specific injury to any one was mentioned in their statements in court. It is no where mentioned in their statements that they identified the accused in the court. They admitted that Sajid son of Khan Afsar and Sajid son of Mian Khan fired at the time of occurrence so they are jointly and severally responsible for the occurrence in which one person Haji Rafique was murdered and murderous assault was made on the other i.e, Shaheen, possibility of receiving fire arm injury by Shaheen with .30-Bore pistol at the hand of Tariq deceased accused cannot be ruled out. But thing remains that Sajid son of Khan Afsar and Sajid son of Mian Khan attempted murderous assault on Shaheen as both of them fired two shots each on them at the time of occurrence. So both of them are jointly and severally responsible in this crime.
15. Initially the charge was framed for the offence of `Haraabah' but robbery was not proved so the appellants were only convicted for murder, attempt to commit murder and causing injuries to the P.Ws. And were not convicted for robbery, no appeal in respect of their acquittal for Haraabah or Robbery has been filed by the complainant side or the State.
16. As far as Tariq deceased is concerned, there is no evidence at all in the whole prosecution case, in the statement of the witnesses even in the confessional statement or anywhere else to indicate how and by whom he was killed. His dead body was recovered after a delay of six days and presence of injuries on his body including presence of fracture on upper Arm has not been explained in any way by the prosecution. In absence of evidence in this respect no one can be held responsible for his murder and the conviction of the appellant in respect of his murder is not sustainable. Resultantly, all the accused/appellants are acquitted for the offence of murder of Tariq one of the deceased of this case.
17. As far as injuries on the person of Shaheen Ashraf are concerned, he appeared in court and did not point out specific person/accused responsible for causing him such injury. Even the other witness Khurshid has not nominated any specific accused for causing injury to Shaheen Ashraf. In absence of any kind of evidence specifying the accused responsible for causing injury to Shaheen Ashraf. In absence of direct evidence no one can be convicted for causing such injury to Shaheen P.W. So the conviction of appellants under section 337-A-IV for causing injury to Shaheen P.W. Is set aside while extending benefit of doubt.
18. As no role in respect of murder and murder assault has been assigned to Khan Afsar by the witnesses. As per confessional statement of co-accused he was empty handed at the time of occurrence. It cannot be assumed that he was having common intention with co-accused in respect of murder of Haji Muhammad Rafique and murderous assault on Shaheen P.W. The prosecution remained unable to prove any charge against him beyond reasonable doubt, so Khan Afsar is accordingly acquitted while extending him benefit of doubt. His appeal is accepted. He shall be released in this case forthwith if not wanted in any other case.
20(sic.) Presence of both the witnesses i.e, P.W.15-A and P.W.15-B at the time of occurrence is established beyond reasonable doubt, they had no reason to falsely implicate these appellants, their statement is worth reliance . The identification parade in respect of involvement and participation of these two appellants is reliable. The inculpatory judicial confession of accused Sajid son of Khan Afsar provides sufficient support to prosecution case, so in the circumstance, Sajid son of Khan Afsar and Sajid son of Mian Khan are found jointly responsible for causing murder of Haji Muhammad Rafique and causing murderous assault on Shaheen Ashraf beyond any doubt so we think that they were rightly convicted under sections 302(b), 324-34, P.P.C., their conviction in this respect are upheld.
21. As far as their sentence is concerned, as in the whole prosecution case it is not established as to who amongst these appellants caused fatal injury to the deceased. As such while extending benefit in this respect their death sentence under section 302(b) is converted into life imprisonment. The compensation under section 544-A, Cr.P.C. And the imprisonment in default of non-payment of compensation shall remain intact. As the accused responsible for causing injury to Shaheen could not be established so as discussed above none of the appellant is entitled to conviction and sentence under section 337-A-iv, P.P.C. Their conviction and sentence under section 337-A-iv, P.P.C. Is accordingly set aside. Admittedly with their common intention Sajid son of Khan Afsar and Sajid son of Mian Khan committed murder of Haji Muhammad Rafique and committed murderous assault on Shaheen P.W. As both of them fired on these persons during the occurrence so their conviction and sentence under section 324, P.P.C. Shall remain intact. All the sentences of imprisonment shall run concurrently. Benefit of section 382-B, Cr.P.C. Shall be extended to them.
22. Consequently the appeal to the extent of Khan Afsar is allowed. He shall be released forthwith if not wanted in any other case and regarding remaining appellants it is dismissed with above mentioned modifications in conviction and sentence.
23. Murder Reference No,2-I of 2013 is answered in the negative.
24. As the sentence of death is converted into life imprisonment in the main appeal, the criminal revision bearing No,3-I of 2013 for enhancement of sentences of the accused/respondents having no merit is dismissed in limine.