1. Zahoor Ahmed Shahwani, J.--Through this single Judgment we shall dispose of Criminal Appeal No, 15/I of 2016 filed by Shameem Khan s/o Gul Muhammad, Jail Criminal Appeal No, 60/I of 2009 filed by Afzal s/o Ayaz alias Riaz Khan and Criminal Murder Reference No, 02/I of 2016 filed by the State, as all these matters are outcome of the same judgment dated 31.03.2009 passed by the learned Additional Sessions Judge, Ghazi in case FIR No, 216 dated 10.08.2007 registered Under Section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at Police Station Ghazi, District Haripur, whereby the accused/appellants Shameem Khan and Afzal were convicted and sentenced as under:--
1. Appellant Shameem Khan under Section 302 (b), PPCSentenced to Death. under Section 392, PPC 10 years R.I with fine of Rs,25,000/- or in default to further undergo for one year S.I under Section 13 of Arms02 years R.I. with fine of Rs. 5000/- or in default to further undergo for 06 months S.I.
2. Appellant Afzal under Section 302(b)/34, PPCLife Imprisonment. under Section 392, PPC 10 years R.I with fine of Rs, 25,000/- or in default to further undergo for one year S.I.
2. It was also ordered that the sentences of appellant Afzal shall run concurrently with benefit of Section 382-B, Cr. P .
3. C.
4. Both the accused/appellants were further ordered to pay a sum of Rs, 100,000/- (rupees one lac) each by way of compensation to the legal heirs of the deceased under Section 544-A, Cr.P.C. in default of payment of compensation to further suffer six months S.I.
5. Initially the appellant Afzal faced trial before the learned Additional Sessions Judge, Ghazi alongwith his co-accused Shameem Khan for an Offence Under Section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the said Ordinaries).
6. On conclusion of trial, both of them were convicted under Section 302 (b), PPC and while the accused/appellant was sentenced to 'life imprisonment, his co-accused was sentenced to death.
7. Both of them were also convicted under Section 392, PPC and sentenced there under.
8. After their conviction the accused/appellant Afzal filed the instant appeal before this Court and his co-accused Shameem Khan preferred appeal in the Hon'ble Peshawar High Court (Abbottabad Bench), later on, it transpired that appeal of the co-accused Shameem Khan was decided by the Hon'ble Bench of High Court and he has challenged the said judgment in an appeal, before the Hon'ble Supreme Court of Pakistan. The appeal was accepted and the case was sent to Federal Shariat Court as the High Court has no jurisdiction to decide the appeal.
9. 2.It is prosecution case that on 10.08.2007 Shabir Hussain Shah, ASI/complainant received information regarding the occurrence in Police Station Ghazi. He went to the spot situated at village Kharoaj along with Muhammad Haroon, ASI, Javed IHC, constable Rifat and Muhammad Fayyaz, driver in official vehicle (Mobile). Some persons of the surrounding areas and two persons belonging to village Pannian were present at the place of occurrence. He found that the dead body of the deceased lying in Suzuki carry Bearing No, 4593 LXF on the driving seat, who was identified by Mohammad Fiaz driver as Liaqat Ali deceased of village Pannian. He deputed one of police officer namely Haroon Khan, ASI at the spot and gave him some instructions about the dispatch of the dead body to the hospital for the postmortem examination and also deputed a police constable in order to guard the place of occurrence. At the spot he was informed that the culprits after committing the occurrence have decamped from the spot to mountains. He took two persons who were already present at place of occurrence before their arrival on the official vehicles in order to trace the culprits. In the way they made announcement in the mosques of village Shaftalo in order to get aid from the persons of the locality for the arrest of the accused. From village Shaftalo he along with the other police officials including two persons went towards to village Kharoaj and on reaching at village Kharoaj he with the help of persons of the locality including the two persons who accompanied them from the place of occurrence arrested the accused facing trial and on summary interrogation a .30 bore pistol loaded was recovered from the possession of accused Shameem Khan, who also admitted the hiring of Suzuki of deceased from Pannian Chowk to Sarikot for a sum of Rs, 500/- and on the resistance of the driver of the Suzuki carry he was killed by Shameem Khan appellant after snatching Rs, 300/- and mobile phone from the deceased. On the basis of the report (Ex.PA/1) of complainant FIR No, 216 (Ex.PA) dated 10.08.2007 under Section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979/13 of Arms Ordinance, 1965/411, PPC registered against accused persons.
10. 3.The case was duly investigated. The accused were arrested on 10.08.2007, and statements of PWs were recorded under Section 161, Cr.P.C. against the appellants to face trial, the learned trial Court framed charge against the accused on 29.02.2008 under Section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 / 13 of Arms Ordinance, 1965/411, PPC and again on 27.05.2008 under Section 17(4) Harabah/13 of Arms Ordinance, 1965. Both the accused did not plead guilty and claimed trial.
11. 4.At the trial prosecution examined 12 witnesses. P.W-1 Sher Afghan, IHC is marginal witness, to the recovery memo. Ex.PW-1/1, P.W-2 Abdul Rehman. FC is the marginal witness of pointation memo. as Ex.PW-2/1, P.W-3 Muhammad Zaman deposed that he had identified the dead body of deceased, he is the marginal witness and produced recovery memos. as Ex.P.W-3/land Ex.P.W-3/2, P.W-4 Azeem Khan deposed that he is the owner as well as the driver of Suzuki van (Carry Dab a) Bearing No, 780-SCM, he and deceased Liaqat Ali ply their vehicld on rent from the Adda of Saeed Khan situated at Chowk Pannian. On the day of occurrence at about 10.00/10.30 a.m., he alongwith the deceased and Saeed Khan were chatting with each other in the Suzuki van of Liaqat Ali. In the meanwhile a person aged about 24/25 years of fair complexion, thin body having small beard came to us and wanted to hire the carry Daba for going to Sarikot and Rs, 500/- was fixed as rent in between deceased Liaqat Ali and him. He and Saeed Khan landed from Suzuki van of the deceased and Liaqat Ali made to pick the persons/passengers and went towards Sarikot side.
12. Later on he came to know through driver of the vehicles that Liaqat Ali deceased had been murdered at Kharoach. Later on he identified that person, in a regular identification parade. P.W-5 Aziz Muhammad is the father of deceased Liaqat Ali, he narrated the same facts as mentioned in the FIR, P.W-6 Muhammad Zareen is an employee of Public Health Department. He deposed that he alongwith two other employees of his department have heard the fire shot and saw the entire occurrence. PW-7 Mohammad Haroon, ASI deposed that he has prepared the inquest report Ex.PW-7/i, injury sheet Ex.PW-7/2, Fard Khulasa Ex.PW-7/3, took the dead body to the hospital for postmortem examination. After that the garments of the deceased P-1 and P-2 were delivered to the I.O., which were taken into possession by the I.O. through memo. Ex.PW-1/1., P.W-8 Doctor Sajjad Medical Officer, DHQ Haripur conducted the post-mortem on 10.08.2007 at 02.30 p.m. on the dead body of Liaqat Ali brought by police, he opined that the deceased got injuries on face left side at temporo mandibular joint making exit on right side face. Fracture of skull and brain and internal caratoid artery on right side damaged and died due to damage of vital organs (Brain and major blood vessels) right internal caratoid artery. He has seen the post-mortem report as Ex.PM, similarly pictorial as Ex.PM/1, also seen the injury sheet Ex.PW-7/2 and inquest report Ex.PW-773 which were also endorsed by him. P.W-9 Shabir Hussain Shah, ASI is the complainant/ Investigating Officer of the case and the prosecution case is based on his report Ex.PA/1F., he narrated the same story as mentioned in the FIR as well as in his report. He deposed that at the time of arrest of accused Shameem he took a pistol from the possession of accused along with load magazine containing three cartridges. The pistol was having the smell of fresh discharge. The pistol and the magazine are Ex.P-3 and Ex.P-4, he issued card of arrest of the accused as Ex.PW-9/1, he sent the garments of the deceased to FSL through application Ex.PW-9/2 and the report of serologist is Ex.PW-9/3 which is in affirmative. Through application Ex.PW-9/4 he sent the empties and the pistol to Arm Expert and report of which is Ex.PW-9/5 which reveals that the empties were fired from the same pistol, he produced both the accused in the Court and got their police custody for three days through application Ex.PW-9/6, interrogated and produced accused Shameem Khan through application Ex.PW-9/7 as well as accused Afzal through application Ex.PW-9/8 in the Court for recording his confessional statement, through application Ex.PW-9/9 he got recorded the statement of PW u/S. 164, Cr.P.C., he also produced P.W Mohammad Zareen and Mohammad Anwar through application Ex.PW-9/10 for recording their statement u/S. 164, Cr.P.C., submitted application Ex.P.W-9/11 in the Court of Judicial Magistrate for conducting the identification parade of accused, he got recorded the statement of P.Ws Jameel Shah and Ibrar Shah through application Ex.P.W-9/12, during the course of investigation he interrogated the accused and placed on file the preidous history of accused which are Ex.PW-9/13 and 9/14 respectively, P.W-10 is Mohammad Raziq, ASI , on receipt of murasila. Ex.PA/1 he registered the case vide FIR Ex.PA. P.W-11 Jamil Shah is a public witness and P.W-12 Javeria Sirtaj Khan, Judicial Magistrate, deposed that she has recorded the confessional statement of accused Shameem Khan, she produced the questionnaire as Ex.PW-12/1, statement of accused Shameem Khan as Ex.PW-12/2 and certificate as Ex.P.W-12/3, similarly she also conducted the identification parade of accused Afzal in the premises of Central Jail, Haripur which is Ex.P.W- 12/4.
13. 5.After close of prosecution evidence, statement of the appellants were recorded under. Section 342, Cr.P.C. wherein they denied the allegation levelled against them by prosecution. They did not opt to record their statement on oath as envisaged under Section 340(2), Cr.P.C. nor to produce witness in their defence. The learned trial Court concluded the proceedings by means of judgment dated 31.03.2009 whereby the appellants were convicted and sentenced in the aforementioned terms. The appellants being aggrieved by the impugned judgment preferred these appeals.
14. 6.Syed Muhammad Tayyab, learned counsel for the appellants contended that retracted confessional statement has been recorded after three days remaining of accused in police custody, therefore, voluntary nature of confession is very much doubted and same finds no corroboration from an independent source; that it is case of no evidence, identification parade is doubtful; that no one had seen the appellants at the time of commission of offence and the prosecution has failed to produce any witness to depose against the accused/appellants; that the statements of PWs have been recorded under Section 161, Cr.P.C. after sufficient delay and no justification and explanation has been furnished for the same; that some of the PWs mentioned in FIR have not been examined; that the story of arrest of appellants just after the occurrence is unbelievable and similarly recovery of weapon of offence from possession of appellant Shameem Khan is doubtful; that no one had seen the appellants at the time of commission of offence and the prosecution has miserably failed to bring home the guilt of the appellants through cogent confidence inspiring evidence, therefore, the impugned judgment being based on surmises and conjectures, is liable to be set at naught and murder reference to be answered in negative. He placed reliance on PLD 1978 SC P-21, 2000 YLR P-758, 1999 P.Cr.L.J P-600, 1998 SCM R P-570, 2008 SCMR P-1065. 2009 P.Cr.L.J. P-199, 1983 P.Cr.L.J P-823, 2003 Y.L.R. P-761and 2009 SCM RP-230.
15. 7.Conversely, Mr. Arshad Ahmad Khan, Assistant Advocate General, Khyber Pakhtunkhwa defended the judgment of the learned trial Court and contended that no mala fide has been attributed to the local police; the prosecution version is supported by the report Ex.PA lodged by Shabir Hussain Shah ASI, (PW-9) testimony of Azeem Khan; Suzuki driver (PW-4) who had last seen the deceased in the company of accused at the time of hiring Suzuki (Carry Daba) from Pannian Chowk to Sirikot and accused were duly identified in a regular identification parade conducted by learned Judicial Magistrate; Muhammad Zareen employee of Public Health Department who had seen two persons running from the scene of occurrence after firing; Jarneel Shah (PW-11) who had chased the accused after the occurrence, arrested them and handed over to police; Javeria Sartaj Khan, Judicial Magistrate(PW-12), who had recorded the confessional statement of accused Shameem and also conducted identification parade in respect of accused through Azeem Khan (PW-4) and Saeed Khan; that the prosecution version is further corroborated by the incriminating recoveries in the shape of stolen money and mobile from accused Afzal from bushes exclusively, within the knowledge of aforesaid accused; lastly he submitted that all the relevant links of circumstantial evidence of last seen coupled with arrest of the accused alongwith weapon offence and snatched articles clearly link the appellants/ accused with the commission of offence of heinous nature by taking the life of innocent Suzuki driver Liaqat Ali, therefore, the learned trial Court has awarded appropriate sentence to the appellants.
16. 8.We have heard the learned counsel for the appellants, as well as learned Assistant Advocate General, Khyber Pakhtunkhwa and have gone through the record.
17. 9.The prosecution case is mainly based on the report (Ex.PA) of Shabir Hussain Shah (PW-9). He in his statement before the Court deposed that on the day of occurrence, he was present in PS Ghazi and received information regarding the occurrence and he alongwith Muhammad Haroon, ASI, Javed HIC, constable Rifat and driver Muhammad Fayyaz rushed to the spot in official vehicle. On driving seat of Carry Suzuki No, LXF-4593, one person was found dead who was identified by Muhammad Fayyaz driver as Liaqat Ali deceased of village Pannian. That he was informed regarding running of the accused from the spot, therefore, he left Muhammad Haroon ASI alongwith the dead .body. and he himself started chase of the accused/appellants and also made announcement from loudspeaker in the mosques and with the help of Jameel Shah, Ibrar Shah and Muhammad Irfan residents of Khajora, both the accused who disclosed their names as Shameem Khan and Afzal were arrested. Accused Shameem Khan was having a .30 bore pistol in his hand who also admitted the hiring of Suzuki of deceased from Pannian Chowk to Sirikot for a sum of Rs, 500/- and that on the resistance of the driver of the Suzuki carry he was killed by Shameem Khan accused after snatching Rs, 300/- and mobile phone from the deceased. This PW was cross-examined at length but neither his credibility was shattered nor anything adverse to the prosecution was brought on the record. The version of Shabir Hussain Shah ASI is further supported by Azeem Khan Driver (PW-4) who had seen the deceased in the company of accused at the time of hiring Suzuki Carry of the deceased for Rs, 500/-from Pannian Chowk to Sirikot. The accused were properly identified by Azeem Khan (PW-4) in a regular identification parade and this PW was also cross-examined at length but neither his credibility was shattered during cross-examination nor any contradiction and infirmity was found in his statement. This PW has given reasonable and justified ground for delay in recording his statement for two days. The arrest of both the accused just after the occurrence was supported by Jameel Shah (PW-11) who in his statement before the Court fully supported the fact that the accused who were running after the occurrence were chased by them and overpowered along with pistol in the hand of Shameem accused while Afzal accused was empty handed and that the accused were handed over to the police. This PW was also cross-examined at length but neither his credibility was shattered during cross-examination nor any defect, infirmity or contradiction was found in his statement. This PW along with Azeem Khan (PW-4) are independent and uninterested witnesses and they have got neither any relation with the deceased nor on inimical terms with the accused/appellants, therefore, no reasonable and justified grounds exist to discard or disbelieve the testimony of these PWs. The prosecution version is further supported by the retracted confessional statement of accused Shameem recorded by Javeria Sartaj Khan (PW-12) on 14.08.2007 after performance of all the legal formalities. This PW was also cross-examined but all the relevant factors favourable to the prosecution were brought on record during cross-examination. This PW admitted during cross- examination that the accused was found healthy and fit without any sign of torture on him. That the accused was also asked as to why he is making confession to which he replied that he is ashamed to take the life of an innocent person. She also admitted during cross-examination that accused were properly identified in a regular identification parade by Azeem Khan and Saeed Khan. Though the identification parade of appellants has been conducted under the supervision of Javeria Sirtaj Khan, Judicial Magistrate (PW-12), while the identification parade report contains the seal of Mr. Ashfaq Ali Haider, Judicial Magistrate-H, Haripur, but the reason about affixing the seal of other Judicial Magistrate. It is thus; clear that after full satisfaction of the learned Magistrate that confession is voluntary and free from torture and coercion, the confessional statement of appellant Shameem Khan was recorded by the learned Judicial Magistrate. The confessional statement is clearly supported by the testimony of independent witnesses Jameel Shah (PW-11) as well as incriminating recoveries in the shape of weapon of offence, snatched articles at the instance and pointation of accused Afzal from a remote place exclusively within the knowledge of accused and positive report of Firearms Expert in respect of .30 bore pistol from possession of appellant Shameem Khan. The police as well as private witnesses produced by the prosecution in respect of company of accused with deceased, identification parade of accused, arrest of accused after occurrence along with weapon of offence and snatched articles have truthfully deposed against appellant in the present case by successfully facing cross-examination. These witnesses have got no personal ill will, mala fide or ulterior motive against the appellants to false depose against them.
18. None of these PWs is related to the deceased; therefore, the credibility of the entire prosecution witnesses cannot be doubted. The appellant has also confessed his guilt in a voluntary confession.
19. The confession finds independent corroboration from the testimony of Jamil Shah (PW-11), medical evidence, positive report of Arms Expert in respect of weapon of offence. Thus, the prosecution case against the accused/appellant is based on solid, truthful and confidence inspiring evidence; hence the learned trial Court after elaborate discussion of evidence has rightly convicted the appellants in the present case. In the absence of any mitigating circumstance, the learned trial Court was quite justified to award the normal penalty of death to appellant Shameem Khan and life imprisonment to appellant Afzal.
20. 10.In view of what has been discussed above, we are of the considered view that prosecution has proved its case against the appellants beyond reasonable doubt, therefore, Criminal Appeal No, 15/I of 2016 and Jail Criminal Appeal No, 60/I of 2009 filed by the appellants are dismissed.
21. Conviction and sentences including death sentence awarded to the appellant namely Shameem Khan and life imprisonment to appellant Afzal by trial Court are maintained as recorded by learned trial Court.
11. Resultantly, Criminal Murder Reference No, 02/I of 2016 is answered in affirmative and confirmed.