' Amir Hani Muslim, J.--This Appeal, by leave of the Court, is directed against the judgment dated 07.07.2009 of the Lahore High Court, Lahore, passed in Criminal Appeals No, 111-J of 2004, 259 of 2004 and Murder Reference No, 188 of 2004.
2.Facts of the case are that Appellants were apprehended in FIR No, 179/2001 dated 20.9.2001, under Section 460, PPC, registered with Police Station City Pasrur. District Sialkot, wherein the Complainant alleged that he is a tailor by profession. He used to live in Muslim Colony Pasrur along-with his parents, his brothers Navid Ahmed, Muhammad Javaid and Annan and his sister Mst. Asia. Navid Ahmed was married to Rukhsana Bibi (deceased), whereas Muhammad Javaid was married to Noor Fatima. They all were living together in a joint family arrangement. Another sister of his Mst.
Asmat Bibi, who was married to Muhammad Ashraf, had also come to his house 2/3 days back. He further alleged that on the night between 19/20 of September 2001 at about 1.00 A.M. All the family members were still awake and talking to each other while the Complainant was on the rooftop of the house, when four unknown persons came on the rooftop of the house. They were young and moderately built and two of them had long beards. They were armed with weapons and took out Rs, 120 from his pocket forcibly. He then immediately came down into the Courtyard of the house and the four unknown persons followed him downstairs in the Deorhi. He raised alarm on which Bashir Ahmed, his father (deceased), Navid and Javaid his brothers, his brother-in-law Ashraf and sisters Asia Bibi ( deceased) and Asmat Bibi alongwith Bhabhi Rukhsana (deceased), came to the Deorhi. His deceased father caught hold of one unknown culprit with a beard, while the rest of the inmates of the house attempted to catch hold of the remaining unknown accused; upon this all the four culprits started indiscriminate firing on them, as a result whereof his father Bashir Ahmed, sister Asmat Bibi, Asia Bibi and Bhabhi Rukhsana received injuries and fell down. The unknown culprits then opened the outer door of the house and ran away. He further alleged that his father succumbed to the injuries at the spot. He being injured alongwith other injured inmates of the house, were removed to the Civil Hospital Pasrur where his sister Asia Bibi and Bhabhi Rukhsana succumbed to the injuries.
3. On the basis of extra judicial confession made by the Appellants before Muhammad Siddique PW-15 they were . Apprehended. Amongst the Appellants only Rafaqat was identified by the PWs in the identification parade held under the supervision of Syed Muhammad Umar, Judicial Magistrate, whereafter they were arrested. It is also important to mention that since Farooq @ Phooka, the 4th co-accused of the Appellants, since was murdered, therefore, the challan was only submitted against the Appellants.
4.the trial Court framed charge against the Appellants under Sections 460, 302, 324, 369, 148, 149, 337-F(v), 337-F(vi) and 337-F(i) to which they pleaded not guilty and claimed trial. In order to bring home the guilt of the Appellants, the prosecution examined as many as 19 P.Ws. The Appellants were examined under Section 342, Cr.P.C. The trial Court vide judgment dated 14.02.2004, convicted and sentenced the Appellants as under:- "All the three Appellants namely Muhammad Younas, Rafaqat Ali Phaka and Shahzad @ Saju were convicted under Section 460 read with Section 149 and 302(b), PPC were sentenced to death on three counts each.
' All the three Appellants were convicted under Section 369, PPC read with Section 149, PPC and were sentenced to life imprisonment each. They were also fined in the sum of Rs, 25,000/- each in default of payment of fine, each will have to undergo for five, years R.I.
' All the three Appellants were also convicted under Section 324, PPC read with Section 149, PPC for causing murderous assault on' Asmat Bibi and Muhammad Parvaiz and were sentenced to 10 years each on two counts. Each of the convict was also fined in the sum of Rs, 10,000/- in default of payment of fine, each will have to further undergo for two years R.I.
' All the three Appellants were also convicted under Section 337-F(v) read with Section 149, PPC, for two injuries on the person of P.W-10 Mst. Asmat Bibi and were sentenced to five years each on two counts. Each of the convict was also directed to pay Daman in the sum of Rs, 10,000/- for each injury to the injured PW and till the payment of Daman amount, each convict will remain behind the bars.
' All the Appellants were also convicted under Section 337-F(i) read with Section 149, PPC for causing three injuries on the person of PW-12 Muhammad Parvaiz and were sentenced to one years each on three counts. Each of the convict was further directed to pay Daman to the injured PW in the sum of Rs, 5000/- per injury and in default of the payment of Daman amount, each of the convict will remain behind the bars.
'All the appellants were also convicted under Section 148, PPC and were sentenced to two years R.I each. Each of the Appellant was also fined in the sum of Rs, 5000/- and in default of the same, each of them will have to further undergo six months R.I.
' All the Appellants were further directed to pay sum of Rs, one lac each as compensation to the legal heirs of the deceased and in default of the payment of the same, each of the convict will have to suffer six months S.I."
5. The Appellant, Rafaqat, Challenged his conviction and sentences through Criminal Appeal No, 111-J of 2004 whereas the Appellants No, 2 and 3 filed Criminal Appeal No, 259 against their conviction and sentences before the Lahore High Court and the trial Court made Murder Reference for confirmation or otherwise of the death sentence of the Appellants. The learned High Court, by the impugned judgment, set aside the conviction and sentences of the Appellants under Sections 369/149, PPC, however, modified the other sentences of the Appellants as under:-- "In view of the above discussion the appeal filed by Rafaqat appellant is dismissed, however, he is acquitted of charge under Sections 369/149, PPC. Death Sentence passed against him is confirmed and Murder Reference against him is answered in affirmative.
9. As regards Younas appellant, no crime weapon was recovered from him, therefore, while dismissing his appeal we convert his death sentence into imprisonment for life with benefit of Section 382-B, Cr.P.C. Alongwith all other sentences of imprisonment to run concurrently as passed by the learned trial Court except under Sections 369/149, PPC which is illegal and is set aside and acquit him from the said charge.
10. A compromise has already been entered into by the legal heirs of the deceased persons with Shahzad appellant and as offence under Section 460, PPC is not compoundable, therefore, while dismissing his appeal we convert his death sentence into imprisonment for life taking the compromise as a mitigating circumstance with benefit of Section 382-B, Cr.P.C. Together with all other sentences of imprisonment passed against him by the learned trial Court to run concurrently except under Sections 396/149, PPC which is illegal and is set aside and he is acquitted from said charge. Death sentence of Younas and Shahzad appellants is not confirmed and Murder Reference is answered in the negative to their extent.
6. The learned Counsel for the Appellants No, 1 and 2 has contended that Younas Appellant No, 2 and Shehzad, Appellant No, 3 were not identified during the identification parade and only Rafaqat Ali, Appellant No, 1 was picked up during the identification parade. He submits that the extra judicial confession of one of the Appellants, Rafaqat Ali, could not be used as an independent piece of evidence for conviction of all three of the Appellants, as P.W-15 Muhammad Ashraf, before whom such confession was made, was a close relative of the Complainant and there was no reason to make extra judicial confession before him.
7. He next contended that the prosecution has alleged recovery of Kalashnikov from the possession of Appellant Younas, but the empties recovered from the scene of occurrence did not match with the said weapon, therefore, the recovery of weapons to his extent stood belied. He submits that the Appellants No, 1 and 2 deserve acquittal in the case, becaase the prosecution has failed to bring home the guilt of the Appellants. The learned Counsel contends that the case of Appellant No, 2 is of acquittal, as he was neither identified nor was there any corroborative piece of evidence against him to connect him with the commission of the alleged offence. He, however, submits that the case of Rafaqat Ali, Appellant No, 1, is distinct, as he was identified and the weapon recovered from him had matched with the empties. He submits that in the given circumstances, his sentence of death be commuted to life imprisonment, as there was no material reflecting that he actively participated in the alleged crime.
8. According to the learned Counsel for Appellant No, 3, no incriminating material was collected by the prosecution to connect him with the commission of the alleged offence, therefore, he needs to be acquitted of the charge.
9. Conversely, the learned Additional Prosecutor General, Punjab, has contended that Appellant No, 1, Rafaqat Ali, was identified during the identification parade and the remaining two Appellants Younas and Shehzad @ Saju, were identified by the injured P.W-10 Mst. Asmat Bibi and Muhammad Pervaiz P.W-12 during trial. The reasons for the non-identification of the Appellants Younas and Shehzad @ Saju at the identification parade was that the P.Ws, who identified them during trial with specific role, were critically injured and they were admitted to the hospital at the time when the parade test was conducted.
10. He has next contended that the identification test is only mandatory in cases where momentary glimpses of the accused persons have been witnessed, but in cases where the P.Ws, some of whom were injured, along with the accused, remained on the scene of offence for a considerable time, the identification test would lose its significance. He has submitted that the deceased father of the Complainant, Bashir Ahmed, caught hold of Appellant Rafaqat Ali in Jappha, and they had scuffled with each other, upon which the other inmates tried to apprehend the Appellants, therefore, it was not a case where the P.Ws have only seen momentary glimpses of the Appellants.
He next submitted that the identification parade is only a corroborative piece of evidence and in the presence of other incriminating evidence, this test loses its significance. In support of his contention he has placed reliance on the case of Ghazanfar Ali @ Pappu and another us The state (2012 SCM R 215).
11. He further contended that the defence has not questioned the source of light at the place of the occurrence and no such suggestion was put by the defence to the. P.Ws during trial although the source of light has been duly mentioned in the site plan. Therefore, the question of mistaken identity does not arise. He has submitted that the weapons recovered on the plantation of the Appellant No, 1 Rafaqat Ali and Appellant No, 3 Shahzad @ Saju were matched with the empties recovered from the place of occurrence and the report of the F.S.L was positive in this regard.
12. We have heard the learned Counsel for the Appellants, the learned Law Officer and have perused the record with their assistance. In the present proceedings, the trial Court has examined 19 P.Ws, which include two injured witnesses who received firearm injures at the hands of the Appellants during the incident. These two prosecution witnesses did identified the Appellants in Court. This ocular evidence could not be discarded on the ground that only Rafaqat Ali, the Appellant No, 1, was picked by the P.Ws in the identification parade. It is not in dispute that the two injured witnesses P.W-10 Mst. Asmat Bibi and Muhammad Pervaiz P.W-12 were receiving medical treatment 'at the time of identification parade, therefore, they could not be expected to participate in the identification parade. However, all the Appellants were identified by these injured witnesses in Court with details of their specific role. The medical evidence corroborates the " ocular evidence.
The Appellant No, 1, Rafaqat Ali, who made extra judicial confession on his arrest led to the recovery of weapon of crime. During the investigation after the arrest of Appellant No, 1 and in pursuance of the disclosures made by him, the other Appellants were arrested and recoveries were effected on their pointation. The reports of the Chemical Examiner and the F.S.L were positive.
13. The contention of the learned Counsel that the Appellants No, 2 and 3 were not identified in the identification parade would not lead to draw an inference that they were not present at the place of occurrence. The F.I.R contained description of the Appellants with specific role. In fact, the injured witnesses in their testimonies before the trial Court have not only identified them but also implicated them with specific role. Holding of identification parade is not mandatory. If testing of a witness qua identity of accused even in Court inspire confidence and the witness is consistent on all material particulars and there is nothing in evidence to suggest that he is deposing falsely, in such circumstances, absence of witnesses during identification parade would not be fatal to prosecution case. The testimony of the injured eye-witnesses P.Ws 10 and 12 was confidence inspiring and could not be shaken despite lengthy cross-examination by the defence. The recoveries effected on the plantation of the Appellants wedded with the empties recovered from the place of occurrence in terms of F.S.L report. The P.Ws 10, 12 and 13 were inmates of the house and their presence at the place of incidence as eye-witnesses was natural. Out of the aforesaid eye-witnesses, P.Ws-10 and 12 received firearm injuries at the hands of the Appellants during the occurrence.
14. The Appellants were examined under Section 342, Cr.P.C. And they did not allege any previous enmity with the P.Ws except they had taken the plea that they were falsely implicated by the Police.
Although the occurrence took place in the midnight but the P.Ws who were present at the time 'of incident witnessed the whole episode in the light of an electric bulb. In the face of the ocular evidence based on the depositions of the injured witnesses, who have not only identified the Appellants but also described their roles coupled with the fact that this ocular evidence corroborates the medical evidence, the case in hand is neither of acquittal nor of lessor punishment, when the prosecution has proved their guilt beyond doubt that the 'Appellants had entered the house and brutally killed three and injured two members of the family, with the common object to commit audacity. The learned High Court has already shown latitude in commuting the death sentence of the Appellants No, 2 and 3 to imprisonment for life, maintaining death penalty of Appellant No, 1, which conclusion of the learned High Court was in conformity with the established principles of administration of criminal justice.
15. The above are the reasons, for our short order of even date, which reads as under:-- "After hearing the arguments of both the learned ASC for the appellants and the learned Additional Prosecutor General, Punjab, for the reasons to be recorded separately, this appeal is dismissed."