' Riaz Ahmad Khan, C.J.--This judgment is directed to dispose of Cr. Appeal No, 37/Q/2014 as well as Cr. Murder Reference No, 3/Q/2014. Both these matters arise out of the judgment dated 25th November, 2013 passed by the learned Additional Sessions Judge, Lesbela at Hub in case FIR No, 17 dated 16.04.2010, police Station Winder, by virtue of which accused/appellant Muhammad Abdullah son of Muhammad Suleman was convicted and sentenced to death on two counts under Section 302(b) PPC. He was also ordered to pay Rs,2,00,000/- as compensation to the legal heirs of both the deceased under Section 544-A Cr.P.C. Or in default thereof to further suffer six months R.I. He as well as accused/appellant Naimatullah son of Muhammad Ismail were also convicted under Section 394 PPC and sentenced to suffer life imprisonment each with fine of Rs,50,000/- each or in default thereof to further suffer six months imprisonment. Benefit under Section 382(b) Cr.P.C. Was however extended to both the accused/appellants.
2. Feeling aggrieved of the above said judgment, Muhammad Abdullah and Naimatullah appellants/accused filed Cr. Appeal No, 37/Q/2014. In the same case Murder Reference No, 3/Q/2014 was also sent by the learned Additional Sessions Judge, Lesbela at Hub for confirmation of death sentence.
3. Brief facts of the case are that on 15th April, 2010 one Muhammad Anwar alongwith his wife namely Mst. Ayesha Bibi, brother Muhammad Karim and his daughter Mst. Razia Bibi boarded Coach/Bus No, JA-9983 at Karachi for Quetta. Alongwith these persons there were other passengers and total number of passengers were 34. The Coach/Bus belonged to Gul Brothers'
Company and had Registration No, JA-9983. The driver of the bus was Noor Ahmed son of Atta Muhammad resident of Saryab Road, Quetta. The coach/bus left Karachi at 10:30 p.m. On the way to Quetta, after crossing police Check Post Kharari within the area of Winder, two persons, who were also passengers and sitting at Seats No, 9 & 10, stood up having pistols in their hands. One person was wearing brown colour Shalwar-Qameez and the other black colour pent and lining shirt. Both the persons were having small beard. They threatened the passengers that if anyone raised noise or made any movement, he would be killed. It was 11:30 p.m. They .Started snatching everything from the passengers. In the process, the accused fired shot on temporal part of Muhammad Anwar son of Mula Ahmed, who died at the spot. Brother of Muhammad Anwar namely Muhammad Karim got up but the accused fired another shot at him and he received injury on the right side of his abdomen. The fires were shot by the person, who was wearing pent-shirt. The accused after snatching cash amount and mobile phones from the passengers de-boarded at RCD Road near Rind Petroleum and fled away. Out of the two accused one apparently seemed as Pathan and the other as Punjabi. After the incident the driver of the coach/bus namely Noor Ahmed took the coach/bus to police station Winder where the driver of coach/bus Noor Ahmed lodged written complaint, on the basis of which FIR No, 17/2010 dated 16.04.2010 was registered.
4. Soon after the registration of the case, the police investigation ensued. Police party under the supervision of DSP and SHO went to main RCD Road near Adam Khand at 3:45 a.m. Where two persons were standing with an effort to stop vehicles going to Karachi. The police, on suspicion, searched them and one person was having one T.T.Pistol alongwith magazine having five live cartridges and one missed cartridge. The second person was having a bag containing cash amount of Rs,52,130/- and eight mobile phone sets. One person, who was having pistol, disclosed his name as Muhammad Abdullah son of Muhammad Suleman and the second person, who was having bag containing cash amount, disclosed his name as Naimatullah son of Muhammad Ismail. Both the persons were arrested and brought to the police station. At that time the driver of the coach/bus namely Noor Ahmed was present in the police station. He identified both the persons as accused who had committed the murder of Muhammad Anwar. The two ladies i.e, wife and niece of deceased had gone alongwith the dead body of Muhammad Anwar and the injured person Muhammad Karim to the hospital. The injured was referred to Civil Hospital, Karachi where he died in the night between 12/13th May, 2010. On 23.04.2010 identification parade was conducted under the supervision of Judicial Magistrate wherein the complainant alongwith Mst. Ayesha wife of Muhammad Anwer deceased and Mst. Razia Bibi daughter of Muhammad Karim identified the accused persons. On conclusion of investigation, challan was submitted on 26.04.2010. The learned trial Court framed charge against the accused on 12.05.2010 under Section 17(4) Harabah of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to which the accused did not plead guilty and claimed trial.
5. The prosecution produced fifteen witnesses to prove its case. Complainant Noor Ahmed appeared as PW.1, who stated the same facts as narrated in the FIR and submitted that he alongwith passengers was present in the police station where the police brought two dacoits and he alongwith 34/35 passengers had identified them as the same persons who committed dacoity in their coach. From the possession of accused persons cash amount, mobile and pistol were recovered. Ayesha Bibi wife of deceased Muhammad Anwer appeared as PW.2. In her statement before the Court she narrated the same facts as given in the FIR. She further stated that she alongwith Mst. Razia Bibi had identified the accused persons during identification parade.
Regarding injuries she gave same version as was there in the FIR. M.St. Razia Bibi appeared as PW.3.
In her statement before the Court she narrated the same facts as given by Mst. Ayesha Bibi PW.2.
PW.4 Muhammad Riaz S.I. Stated in his statement before the Court that on 16.04.2010 at about 12:20 night he alongwith SHO and other police officials was present in the police station. Noor Ahmed, Driver parked coach of Gul Brothers hearing Registration No, JA-9983 besides the police station and submitted a written complaint to the SHO. He alongwith SHO and DSP started search of the accused and at about 3:45 p.m. They found two persons present near Adam Khand who were trying to stop the vehicles going towards Karachi. They encircled the said persons and arrested them. On query of I.O. Khan Muhammad S.I. One person disclosed his name as Abdullah son of Suleman and the other disclosed his name as Naimatullah son of Ismail. On personal search of accused Abdullah one T.T.Pistol alongwith magazine containing five live cartridges and one missed cartridge was recovered which were taken into possession by the I.O. Through recovery memo Ex.P/4-A. He (PW.4) and Mukhtar Hussain S.I. Had attested the said recovery memo as marginal witnesses. He attested his signatures on sketch of pistol Ex.P/4-B, on Parcel No, 2 Art.P/1 containing T.T.Pistol Art.P/3, magazine Art.P/4, five live cartridges Art.P/5 to Art.P/9 and one missed cartridge Art.P/10. He further stated that one blue colour bag was recovered from accused Naimatuallah from which robbed amount of Rs,52,130/- and eight mobile phone sets were recovered. The I.O.
Took the cash amount into possession through recovery memo Ex.P/4-C and the mobile phone sets through recovery memo Ex.P/4-D. He admitted his signatures on the said recovery memos.
PW.5 Mehrullah S.I. Was the witness of identification parade. PW.6 Noor Hassan was an eye-witness of the occurrence, who stated that he was travelling in the coach which was robbed by the accused persons and during the course of dacoity the accused committed murder of one passenger and caused fire-arm injury to another passenger (brother of deceased passenger). He further stated that the accused also snatched Rs,6370/- and one Mobile Nokia-1202 from him.
Further stated that at about 4/4:30 a.m. The police brought two accused persons at police station, who were identified by him, the driver and the other persons as the same persons who committed dacoity in their coach. PW.7 Abdullah Constable was the marginal witness of recovery memo of three empties Ex.P/7-A, Parcel No, 1 Art.P/28 containing three empties Art.P/30 to Art.P/32 and recovery memo of Coach bearing Registration No, JA-9983 Ex.P/7- B. Abdul Rehman appeared as PW.8. He stated in his statement before the Court that on 16.04.2010 at about 1:00 a.m. He received information at his home that his employee Muhammad Karim was injured by dacoits and his brother Muhammad Anwer was murdered. On this information he reached police station Winder where S.I. Khan Muhammad informed him that injured Muhammad Karim was referred to Karachi and dead body of Muhammad Anwer was lying in the hospital. He (PW.8) alongwith the relatives of the deceased put their signatures on the recovery memo of dead body Ex.P/8-A and memo of inspection of dead body Ex.P/8-B.
6. PW.9 Dr. Aziz Ahmad Roojha, Medical Officer, R.H.C. Winder had medically examined Muhammad Karim injured on 15.04.2010 at 11:50 p.m. And found a bullet wound noted on right side of abdomen, only entrance wound noted, no exit wound seen. Nature of injuries was very dangerous. Duration of injuries fresh, weapon used was Pistol (Revolver). Patient was urgently referred to Civil Hospital, Karachi for proper treatment. After examination the doctor issued MLC No, 31/10 dated 16.06.2010 Ex.P/9-B whereupon he put his signatures.
' PW.9 also medically examined the dead body of Muhammad Anwar deceased on 16.04.2010 at 12:30 am. And found the following injuries:-
(1) An entrance wound of Gun Shot noted on left side of face about 1" medially to left ear.
(2) severe bleeding from nose and mouth.
' The doctor stated that probable cause of death was due to CardioPulmonary Arrest secondary to Gun Shot. The weapon used was (Revolver) Pistol. After examination of dead body the doctor issued death certificate vide MLC No, 32/10 dated 17.04.2010. He identified his signature on the MLC Ex.P/9-A.
7. PW.10 Muhammad Arif Constable was marginal witness of recovery memo Ex.P/10-A of last worn clothes of accused Abdullah and Naimatullah. He admitted his signatures on the said recovery memo. PW.11 Ahmad Khan was marginal witness of recovery memo Ex.P/11- A by which the 1.0 took into possession last worn clothes of deceased Muhammad Anwar.
8. Abdul Qadir Baloch, Judicial Magistrate appeared as PW.12. In his statement before the Court he stated that on 23.04.2010 he conducted identification parade of accused in Police Station Winder wherein witnesses Mst. Ayesha, Mst. Razia Bibi and Noor Ahmed identified the accused persons. He produced memos of identification parade alongwith list of dummies and list of witnesses Ex.P/12-A to Ex.P/12-Y and admitted his signatures on the same. PW.13 Inayetullah Head Constable was marginal witness of recovery memo Ex.P/10-A whereby the I.O. Took into possession last worn clothes of accused Abdullah and Naimatullah. Muhammad Akber appeared as PW.14. In his statement before the ,Court he stated that on 15/16th April, 2010 his brother Karim and Anwer were travelling in Gul Brothers' Coach from Karachi to Quetta. During journey, due to firing of dacoits his brother Anwar died while his other brother Muhammad Karim received injuries. Injured Karim was referred to Civil Hospital, Karachi, where he succumbed to his injuries in the night between 12/13th May, 2010. The doctor of Civil Hospital, Karachi issued death certificate which he handed over to the I.O.
9. PW.15 Khan Muhammad Inspector had conducted investigation of the case. In his statement before the Court he stated that on 16.04.2010 he alongwith Rehmatullah SHO and other police officials was present in the Police Station Winder, complainant Noor Ahmed, driver of Coach No, JA- 9983 submitted written application to the SHO, on the basis of which FIR No, 17/2010 under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered.
The I.O. Alongwith the police officials went to the Civil Dispensary, Winder near RCD Road where the Coach was parked, wherein dead body of Anwar and an injured person, whose name later on was disclosed as Muhammad Karim, were present. He prepared injury sheet of injured Muhammad Karim and sent him to Civil Dispensary for medical treatment. He took into possession the dead body of deceased Muhammad Anwer and on inspection found a firearm injury on the left side of temporal part. He sent the dead body to. Civil Dispensary and took the Coach into possession and on inspection recovered three empties of pistol and took the same into possession through Parcel No, 1 and recorded statements of the witnesses under Section 161 Cr.P.C. In the meanwhile the heirs of the deceased submitted application to the DSP that they did not want to get postmortem examination of the dead body, therefore, the dead body was handed over to them without post- mortem examination. Thereafter, the I.O. Alongwith other police officers and officials started search of the accused and arrested them from Adam Khand at RCD Road. One pistol .30 bore Pak Made alongwith magazine containing five live cartridges and one missed cartridge was recovered from accused Abdullah which were taken into possession through Parcel No,
2. The accused did not produce any license/permit of the pistol, therefore, a separate case FIR No, 18/2010 under Section 13-E Arms Ordinance was registered. From accused Naimatullah one blue colour bag containing cash amount of Rs,52,130/- and eight mobile phone sets was recovered. Statements of witnesses under Section 161, Cr.P.C. Were recorded. He also took into possession last worn clothes of accused Abdullah and Naimatullah. On 19.04.2010 the relatives of deceased Muhammad Anwar produced last worn clothes of deceased Muhammad Anwar, which he took into possession through recovery memo. On 23.04.2010 Judicial Magistrate Abdul Qadir Baloch conducted identification parade of the accused wherein witnesses Noor Ahmed Driver, Mst. Ayesha Bibi and Mst. Razia Bibi identified the accsued persons. He sent Parcel No, 1 and Parcel No, 2 containing T.T. Pistol and three empties to Forensic Science Laboratory, Karachi for analysis. On 16.05.2010 Muhammad Akber submitted written application alongwith death certificate of injured Muhammad Karim issued by Civil Hospital, Karachi and certificate issued by Union Council Kathor Bela, which he incorporated in challan. On 16.06.2010 he got refer certificate of Muhammad Karim from Medical Officer Dr. Abdul Aziz. On 04.07.2010 he received FSL report and submitted the case file to the SHO for submission of challan. He (PW.15) produced FIR, death certificate, incomplete challan alongwith list of witnesses and case property, second challan alongwith FSL report as Ex.P/15-A to Ex.P/15-H and he admitted his signatures on the said memos.
10. After close of the prosecution evidence, statements of the accused under Section 342 Cr.P.C.
Were recorded. The accused denied the allegations leveled against them and pleaded innocence.
Both the accused recorded their statement under Section 340(2) Cr.P.C. And also produced two witnesses in their defence. Accused Muhammad Abdullah in his statement before the Court stated that after one year and eleven months he returned from Saudia Arabia. On 13.04.2010 he was on Karachi Airport where his friend Naimatullah came and took him to his shop situated at Shah Faisal Colony, Karachi where they planned to go to Quetta. In the evening they got booked a room in Abaseen Hotel, Karachi. On the thiid day at about 9:00 p.m. He went to the shop of Naimatuallah, hired a car, and proceeded for Quetta. When they reached in the area of Winder, the police halted them at check post and on personal search the police took into possession Rs,40,000/- (Pak currency), 1270 Saudi Riyal and two mobile phone sets from him. On personal search of driver and his friend Naimatullah the police also took into possession cash amount and mobile phone sets.
The police took them to police station where many people were present. The police tortured them and forced them to admit that they had committed dacoity and murder in the coach. He further submitted that they were falsely involved in the said case.
11. Accused Naimatullah in his statement before the Court narrated the same story as stated by accused Muhammad Abdullah. Muhammad Akram appeared as DW.1. In his statement before the Court he stated that accused Naimatullah was personally known to him whereas he did not know the other accused Abdullah. Accused Naimatullah asked him to take them to Quetta in his taxi. In the 3/4th month of year 2010 at about 11:00 p.m. He alongwith accused Naimatullah and Abdullah proceeded from Karachi to Quetta. The police stopped them near police station Winder and after alighting both the accused let him go. He returned back and on the next day when he found the shop of Naim'atullah closed, he give information to his home and his brother. DW.2 Ashiq Ali in his statement before the Court stated that he was friend of elder brother of accused Naimatullah. He was sitting with elder brother of accused Naimatullah on the shop. On 15.04.2010 at about 11 O'Clock accused Naimatullah along with his friend left for Quetta. On the next day he came to know that the police had arrested accused Naimatullah. He further stated that being neighbour he knows accused Naimatullah who is a noble man.
12. After hearing the parties the impugned judgment was passed. Being aggrieved of the same, the present appeal was filed by the accused/appellants against their conviction and sentence.
13. Learned Counsel for the appellant Muhammad Abdullah submitted that physical descriptions of the accused were not given by the complainant or the eye-witnesses. The initial report (Marasla) was written by the police. PW. 1 in his cross-examination submitted that he handed over the list of the passengers to the police. The list was not produced otherwise the names of the accused could be found in the list. The learned Counsel further submitted that the witnesses were chance witnesses. The main argument of the learned Counsel was that the identification parade was conducted in police station which was illegal. In support of his contention the learned Counsel referred to 2012 YLR 2481. The learned Counsel further submitted that the person, who had taken the recovered empties and pistol to FSL was not produced before the Court. Summing up his contentions the learned Counsel submitted that the accused could not be connected with the alleged offence. The accused had given a separate story in defence, though it was not proved yet a plausible story was given. As such there were two versions of the occurrence. In such a case the accused are entitled to benefit of doubt. In support of his contentions the learned Counsel referred to 1997 SCM R 971 Farman Ali vs. The State, PLD 2008 Supreme Court 513 Muhammad Asghar vs. The State, 2005 M LD 669 Shah Nawaz us. The State, 2007 SCM R 670 Muhammad Pervez and others us.
The State and others, 2011 SCM R 683 Ghulam Shabbir Ahmed and another us. The State, 2011 SCM R 769 Muhammad Ayaz and others us. The State, 2011 SCM R 563 Sabir Ali alias Fauji vs. The State, 2014 SCM R 749 Muhammad Zaman us. The State and others, PLD 2013 Supreme Court 793 Hassan and others vs. The State and others, 2009 SCM R 230 Muhammad Akram vs. The State, 2005 YLR 2805 Abdul Quddus us. The State, AIR 1965 Orrisa 38 State of Orissa vs. Kaushalya Dei, 1999 P.Cr.LJ 1044 Zahid Hussain us. The State and 2003 SCM R 1419 Khalid Javed and another us. The State.
14. Learned Counsel for the appellant Naimatullah at the very outset prayed for reduction of sentence.
15. On the other hand, learned Deputy Prosecutor General Baluchistan submitted that the witnesses were natural witnesses as the wife of deceased Muhammad Anwar and daughter of injured Muhammad Karim were accompanying the deceased persons. The evidence produced by the prosecution was confidence inspiring. The second version given by the accused/appellants was totally unplausible, which could not be believed. The prosecution had fully established the case against the accused/appellants and the conviction and sentences awarded to the accused were lawful and did not require any interference.
16. We have heard the learned Counsel for the parties and have also perused the record.
17. The evidence available on the file establishes the following points:--
(i) Deceased Muhammad Anwar alongwith his broth: Muhammad Karim, wife Mst. Ayesha Bibi and niece MRazia Bibi were coming from Karachi to Quetta in bus/Coach No, JA-9983.
(ii) The accused namely Muhammad Abdullah and Naimatullah were also in the same bus/coach.
(iii) Both the accused, at Kharari within the area of Winder, stood up from their seats, having pistols in their hands. Both of them started snatching money from the passengers.
(iv) When the accused Muhammad Abdullah reached the deceased Muhammad Anwar and his wife, he tried to take ear-rings from the ears of wife of Muhammad Anwar, they started requests not to take ear-rings, so he fired a shot with which the deceased Muhammad Anwar was hit on his head near left ear. There is a possibility that the deceased may have resisted the accused, on which he fired a shot.
(v) When deceased Muhammad Karim saw that his brother had been hit, he got up from the seat so the accused Muhammad Abdullah also fired at him with which he was injured and fell down.
The accused got down at RCD Road near Rind Petroleum. The driver of the bus/coach took the bus/coach to the police station and made a report. He did not charge any one by name because he did not know the names of the two accused persons. The bus/coach was parked in the police station and the police went to the Adam Khund, RCD road and saw the two accused present over there. The accused were arrested, one accused namely Muhammad Abdullah was having pistol alongwith magazine containing five live cartridges and one missed bullet. Both the accused were arrested and brought to the police station.
(iv) The accused were identified by the driver who was present in the police station as the bus/coach was parked there. From the bus/coach three empties were recovered.
(v) The pistol used in the offence alongwith empties were sent to FSL and the report of the FSL was positive which meant that the empties were actually fired from the weapon of crime i.e, pistol.
(vi) The medical evidence supported the oral evidence as the seat of injuries according to the medical report as well as the oral evidence was the same and the deceased had received fire-arm injuries.
(vii) In the natural course of circumstances, the two ladies had accompanied the deceased and the injured to the hospital. The injured Muhammad Karim was referred to Karachi and both the ladies accompanied him where Muhammad Karim died in the night between 12/13th May, 2010. will) The two ladies went to Karachi alongwith injured Muhammad Karim and on 23.04.2010 they identified the two accused before the Judicial Magistrate. The statements of driver as well as the two ladies are so consistent that in cross-examination nothing could be brought out to disprove the facts narrated by these witnesses. There is no chance of false implication as the complainant party had no grudge against the accused.
18. As far as the objections raised by the learned Counsel for the accused/appellant Muhammad Abdullah are concerned, those are not correct for the reason that the witnesses were not chance witnesses. A chance witness is a person, who in ordinary set of events would not be available at the place of occurrence. In the present case the witnesses Mst. Ayesha Bibi and Mst. Razia Bibi were accompanying their own relatives i.e, husband/father/uncle and they were on their way to Quetta in a coach/bus, the driver was driving the bus/coach so none of these witnesses can be considered as chance witnesses.
19. The learned Counsel for appellant Muhammad Abdullah raised the objection that the driver may not have identified the accused in the bus/coach as there could be darkness at the time of occurrence. This contention cannot be accepted for the reason that there is nothing to that effect in his cross-examination and even in the natural course the driver would stop the bus/coach at the time of such incident and would definitely put on the lights and at that time he must have seen the accused. The fairness on the part of the driver was that in the report he did not charge any one by name and when the accused were brought before him he identified them. It is also to be kept in view that the accused were brought before the driver within three/four hours of the occurrence. On top of that the corroboratory evidence of matching of pistol with the crime empties supports the version of the prosecution,
20. Regarding the statements of the two ladies Mst. Ayesha Bibi and Mst, Razia Bibi, the only objection raised by the learned Counsel was that the identification parade was conducted at the police station.
21. The identification test basically is not a-requirement of law but it is only one of the methods to test the veracity of evidence of an eye-witness who has had an occasion to see the accused at the time of occurrence. It is only a corroborative piece of evidence and not substantive evidence.
Identification parade is conducted under Article 22 of the Qanun-e-Shahadat Order, 1984 read with Rule 26.32 of the Police Rules, 1934. Under Qanun-e-Shahadat Order or Police Rules it is not a requirement that the identification parade must not be conducted in police station. However, the requirement of law is that arrangements shall be made, whether the proceedings are being held inside a jail or elsewhere, to ensure that the identifying witnesses shall be kept separate from each other and at such a distance from the place of identification as shall render it impossible for them to see the suspects or any of the persons concerned in the proceedings, until they are called up to make their identification. Regarding identification parade the precedents of Superior Courts are also taken into consideration and it has been held .By the Superior Courts that ordinarily identification parade should not be conducted in police station. However, it is also to be kept in view that identification parade, if conducted in police station, should not be taken in isolation. If there is evidence available on record that the said identification parade suffers from doubts regarding identification or the witnesses had an occasion to see the suspects earlier, then in that case the said identification should not be given any credence. In the present case the only objection is that the identification parade was conducted in police station otherwise it was conducted by the Judicial Magistrate observing all the legal formalities and there is absolutely nothing on record to show that the identifying witnesses had earlier seen the suspects in the police station. In the present case the whole evidence is so natural that it cannot be denied that Mst.
Ayesha Bibi and Mst. Razia Bibi had actually seen the occurrence. The two ladies cannot be disbelieved simply on the basis of technicality as there is nothing on record that recording their statements at police station had actually created any doubt regarding prosecution case.
22. The contention that the list of passengers was not produced before the Court is also not correct because ordinarily a list showing the numbers of passengers is given to the driver which does not include the names 'of the passengers. As such, it was immaterial as to whether the list was produced or not. As far as the defence version 1 concerned, that infact supports the prosecution case because according to the statements of the accused they were present at the place of occurrence so they were required to prove their own version. The statements given by the accused persons could not create a dent in the prosecution case. The judgments referred to by the learned Counsel for the appellant Abdullah are not relevant to the facts of the present case. In these circumstances, we hold that the trial Court had rightly convicted the accused/appellant Muhammad Abdullah and sentenced him to death. We, therefore, uphold his conviction and sentence under Section 302(b) PPC as well as under Section 394 PPC.
23. As far as accused/appellant Naimatullah is concerned, he was convicted only under Section 394 PPC. The learned Deputy Prosecutor General has no objection regarding reduction of his sentence provided conviction is maintained. Though he had an active role in the commission of offence of robbery during the course of which murder was committed but the trial Court did not convict him for murder in furtherance of common intention for robbery under Section 34 PPC and no appeal has been filed against those finding. He has only been convicted and sentenced under Section 394 PPC for commission of robbery. In fact both the accused/appellants had been charged for robbery, the total amount recovered was Rs,52,130/- and it is not clear as to how much amount was snatched by each of the accused. No pistol or arm was recovered from him. So in these circumstances we hold that he is entitled to slight concession. Accordingly we maintain his conviction under Section 394 PPC and alter his sentence to ten years R.I.
24. The upshot of the above discussion is that the appeal to the extent of accused/appellant Muhammad Abdullah is dismissed, however, the impugned judgment is altered to the extent that sentence awarded to accused/appellant Naimatullah is reduced to ten years R.I. However the appeal is dismissed.
' Murder reference is answered in affirmative.