KH1ZAR HAYAT, J.---Lalu son of Neka (19) caste Muslim Sheikh resident of Chak No. 113-/11-L, Police Station, Chichawatni, and Yousaf son of Yara (20) caste Muslim Sheikh resident of Chak No. 183/E.
B:, Tehsil Burewala, District Vehari, were convicted and sentenced on three counts by the Additional Sessions Judge Vehari, vide order dated 14th April, 1980 as under :- For the murder ofUnder section 302/34,Both of them were Muhammad TufailP.P.C.Sentenced to death and a fine of Rs.
1,000 or in default, to undergo one month's S. I. Each.
Por murderouslyUnder section 302/34,Both of them were Assaulting NoorP.P.C.Sentenced to 10 Khan Pathan P.W.Years' R. I. And a fine of Rs. 1,000 or in default, to under. go one month's S. I. each.
For voluntarilyUnder section 392/394/34,Both of them were causing hurt andP.P.C.Sentenced to10 committing offenceyears' R.I. And a of robbery jointly.Fine of Rs. 1,000 or in default, to under. go one month's S.I. each.
It was further directed that the fine if realised shall be paid in equal shares to Noor Khan, the injured P.W. And. The legal heirs of Muhammad Tufail deceased. Both the convicts have filed a joint appeal against their convic--tions and sentence., (Crl. Ap. No. 550/80) and connected reference under section 374, Cr. P.C. For confirmation of their death sentences is also before us. The complainant has also filed criminal revision (Crl. Rev. No: 890/80) for enhancing the amount of fine and compensation. We propose to dispose of these three matters by this single judgment.
2. The prosecution case as disclosed at the trial in the statement of Shah Muhammad (P.W: 6) first informant and other witnesses briefly is as follows :- "Muhammad Tufail deceased was the nephew of first informant Shah Muhammad, who was employed in Textile Mills at Burewala. He used to go there for duty daily by catching a bus from Gaggo at a distance of about 2J miles from his Chak No. 189/E.B. In the days of occurrence, his duty hours were- from 10.00 p.m. To 6-00 a.m. On 21st May, 1976 as strong wind was blowing, therefore, Shah Muhammad carried Muhammad Tufaii on a bicycle for leaving him at Gaggo and bringing the cycle back. When they reached at the culvert of Rajbah 3-L at 7-15 p.m. They saw that Master Wali Muhammad (P. W. 11) was being robbed by Yousaf and Lalu appellants who were armed with a dagger and a pistol respectively. They snatched a sum of Rs. 25 and a writing pen from him. Lalu appellant then advanced towards Tufail and asked him to hand over whatever he had with him.
Tufail retorted that he had recognised both of them as Yousaf and Lalu, and asked if they had also adopted the ways of Falku ? Upon this Lain fired at him hitting in his chest. Tufail fell down and expired. Shah Muhammad (P.W: 6) retreated a few steps out of fear. In the meantime Sawar Khan (P.W. 12), Hakim Ali (P.W. 13) and Noor Khan Pathan (P. W. 14) reached there on bicycles from Gaggo side. They were also stopped by the appellants and were robbed of their cash and wrist watches i.e. a sum of Rs. 2 was snatched from Hakim Ali P.W., and a wrist watch and sum of Rs. 6 from Sawar Khan P.W.
12. Thereafter, they advanced towards Noor Khan who said that one would not submit for search to Musallies (the appellants are Musallies by caste). At this Yousaf appellant gave him a dagger blow which landed on the back of his shoulder and snatch--ed from him, his automatic wrist watch and Rs.
95. In the meantime a jeep arrived and the appellants decamped. Noor Khan Pathan (P.W. 14) was immediately put in the jeep by Wali Muhammad and Shah Muhammad P. Ws.
And taken to Gaggo hospital. The jeep owners dropped them at the gate of the hospital and went away. Noor Khan P. W., was admitted in the hospital while Shah Muhammad accompanied by Wali Muhammad went to the Police Station Gaggo for report which- was about a furlong away from the hospital, and 4 miles from the spot. An F.I.R.; Exh. P.E. Was recorded by Muhammad Nawaz A.S.I (P.W.
I7) at the statement of Shah Muhammad, at 8-30 p.m."
3. Having recorded the F.I.R. The A.S.I. With some subordinate staff left for the spot. Reaching there he removed blood-stained earth from near the dead body of Tufail and made it into sealed parcel vide memo. Exh. P.J. He then prepared inquest report Exh. P.M. And injury state--ment Exh. P.N. Of the deceased and sent the dead body under the escort of Jawad Hussain F. C. (P. WA) for post- mortem examination. On the next day he recorded the statement of Noor Khan Pathan who was admitted in the hospital and then entrusted the investigation to Arshad Iqbal Sheikh S. I. (P.W. 7).
4. Jawad Hussain brought the last worn clothes of the deceased i. e. Shirt P.-1, Chaddar P. 2 and a sealed phial containing lead of bullet P. 3 from the doctor after post-mortem examination and gave the Sub-Inspector who seized them through memo. Exh. P.D.- He arrested Muhammad Yousaf appellant on 30th May. 1976, who led to the recovery of dagger P. 4 on 6th June, 1976 from his residential kotha in Chak No. 183/E B., Tehsil Burewala which was secured under memo. Exh. P.F. He also got recovered a wrist watch P. 5 from there which was secured under memo. Exh. P.G. The lock P. 6 of the room of recovery was also seized vide memo. Exh. P.H. All these recoveries were attested by Sufi Habib (P.W. 6) and Anwar Ali (not produced) besides the Investigating Officer.
5. It appears from certain documents appended with the record (though not proved formally) that Lalu, appellant, was arrested by Ghazi--abad Police on 25th May, 1976 and at the time of his arrest a Camy Watch P. 7 and a revolver -32 bore were recovered from his person. The Public Prosecutor applied to the trial Court on 12th March, 1980 for summoning Ahmad Saeed, S.H.O. Police Station Ghaziabad, to prove the aforementioned recoveries effected from Lalu, appellant, but the application was declined.
6. Zafar Ullah, Patwari (P. W. 3) sketched the site plan in triplicate Exh. P.C. Which according to him was prepared at the instance of the police and on pointation of the witnesses. After completing the investiga--tion the challan was sent to Court,
7. Dr. M. A. Saleemi (P. W. 2) Medical Officer, Rural Health Centre Gagoo, examined Noor Khan Pathan, the injured P.W. On 21st May, 1976 at 7.45 p.m. And found the following injuries on his person :- "Step wound 1--" x 1/3" x (the depth-was not probed as the lung was injured, there was surgical empysema on the left side of chest to. Make the injury more. Adverse), at the back of left side of chest at upper area 14"below the back fold of axilla."
The injured was in shock and serious condition, at that time. He found corresponding cut on his blood-stained shirt and vest: His shalwar was also blood-stained. The injury was found dangerous and freshly caused with sharp-edged weapon vide medico-legal report Exh. P.B.
8. On 22nd May, 1976 Dr. Mushtaq Ahmad, Medical Officer (P. W. 1), Civil Hospital, Pakpattan performed autopsy on the dead body of Muhammad Tufail- deceased and noticed the following injuries :-
(1) A circular lacerated wound of entry --" x --" on the front of left side of chest. 3/4" lateral to the nipple. The skin around the wound was of black colour.
(2)An abrasion --" x --" on the front of left knee.
(3) An abrasion 1 --" x --" on the medial side of right foot.
(4) An abrasion 1" x --" on the medial side of right ankle.
(5) An abrasion 2--" x 1/2" on the left side of the chest.
(6) An abrasion 2" x 1" on the front of left elbow.
(7) An abrasion --" x --" on the medial side of right arm.
On internal examination he found the chest cavity full of blood and the right lung penetrated through and through by a bullet. The stomach was full of rice. A bullet was removed from the subcutaneous tissues on the right side of chest wall. The left lung and heart was also penetrated through and through. In the opinion of the doctor the cause of death was shock and haemorrhage caused due to injuries to the heart and lungs. Injury No. 1 was fatal and was sufficient to cause death in the ordinary course of nature. Injury No. 1 was caused by fire-arm and rest with blunt weapon. All were ante-mortem. The duration between injuries and death was instantaneous and between death and- post-mortem about 16 hours.
9. The prosecution examined 17 witnesses in support of its case, which rests mainly on the following categories of evidence
(a) Ocular evidence furnished by Shah Muhammad (P. W. 6) the first informant, and maternal- uncle of Muhammad Tufail deceased, Wali Muhammad (P.W. 11) Sawar Khan (P.W. 12), and Noor Khan Pathan (P.W. 14), the injured witness.
(b) Incriminating recoveries of dagger P. 4 and wrist watch P. 5 affect--ed from Yousaf appellant and
(c) Medical evidence provided by Dr. M.A. Saleemi (P.W. 2), who examined Noor Khan Pathan (P.W.
14) and Dr. Mushtaq Ahmad (P. W. 1), who conducted autopsy on the dead body of Muhammad Tufail, deceased. The appellants' case is one of denial simpliciter. The stated that it was a blind murder and that they had been implicated falsely by the police. They did not call any witness in their defence. The learned trial Court having believed the eye--witnesses as well as the incriminating recoveries held that the prosecution successfully brought home the charge to the appel--lants and found them guilty of committing offences of robbery, murder and murderous assault and sentenced them as indicated in para. 1 of the judgment.
10. Learned counsel appearing on behalf of the appellants has argued that the recoveries in this case are worthless and hardly connect Yousaf appellant with the crime muchless to provide corroboration to the ocular evidence. He also contended that the ocular testimony in this case is not credible as it suffers from grave discrepancies and inconsistencies. He next contended that the occurrence took, place in darkness and, there--fore, the claim of the eye-witnesses that they had identified the appellants at the time of occurrence, cannot be accepted in the absence of test identification, specially when some of the eye-witnesses admittedly did riot know the appellants prior to the day of occurrence. Elaborating this point he submitted that certain trackers were also associated during the investigation which shows that the culprits were not known, therefore, an attempt was made to get some clue by tracing the tracks from the spot through them. He concluded that the appellants have been involved merely on the basis of suspicion and hence they deserve to be acquitted.
11. On the other hand, learned counsel for the State as well as for the complainant have strenuously supported the conviction. They argued that the eye-witnesses are witnesses of truth for they have no previous enmity with the appellants. Further stated that the F.I.R. Was lodged with promptitude, therefore, it excluded any possibilities of false implication of the appellants.
12. Having carefully considered the facts and circumstances appearing on record in the light of the submissions made by the learned counsel for the parties, we have come to the conclusion for the reasons detailed hereafter that the guilt of the appellants has been proved to the hilt by overwhelming ocular evidence and the learned trial Court rightly convicted both of them.
13. First of all we take up the recoveries. According to the prosecu--tion Yousaf, appellant, while in custody in the presence of Sufi Habib and Anwar P.Ws. Got recovered a wrist watch P. 5 from his house in Chak No. 1891E.B. It may be stated that none of the P.Ws. Who have been looted by the appellants on the night of occurrence have claimed this wrist watch as belonging to him, therefore, it does not provide a link between crime and the appellants. As for dagger P. 4, suffice it t say that at the time of recovery it was not stained with blood nor was it later sent to the Chemical Examiner, for detecting blood thereon. Therefore, the recovery of dagger P. 4 too is of no consequence. Even otherwise we find that this recovery is doubtful because the recovery witnesses contradicted each other on material point e.g., Arshad lqbal, S.I. (P.W. 7) stated the lock of the room of recovery was broken by the appellant himself before he entered to bring out the dagger and the wrist watch in question. To the contrary, Sufi Habib (P.W. 8) stated that the appellant had opened that lock with a key and then entered. We do not, therefore, agree with the learned trial Court that these recoveries provided corroborative circumstance against Muhammad Yousaf, appellant.
15. The most important piece of evidence in this case on which the prosecution would either stand or fall is the eye-witness account. It is in the evidence that on the relevant evening, Wali Muhammad, Shah Muhammad, Swar Khan and Noor Khan when reached the culvert of Rajbah 3-L, Chak No. 183/E.B., on the relevant evening, they were stopped and robbed off their watches and cash at the pistol point by Yousaf and Lalu, appellants, both. Lalu shot at and killed Muhammad Tufail when the latter declared that they (appellants) have fallen on the ways of Falkoo and that he bad identified them as Yousaf and Lalu. Noor Khan Pathan P.W., when resisted the search, was given a dagger blow by Yousaf, appellant. Hakim Ali (P.W. 13), though had turned hostile yet he admitted that when he reached the place of occurrence in the company of Noor Khan and Sawar Khan, P.Ws., they were stopped by two dacoits armed with a pistol and a dagger who looted them and injured Noor Khan Pathan, and Muhammad Tufail, deceased, had been done away with before their arrival. Swar Khan and Noor Khan stated that before they left for the hospital they saw the dead body of Tufail lying there, who was obviously killed by the dacoits who had looted them. The narration about the occurrence given by Hakim Ali (hostile witness) and other eye-witnesses almost is the same, except that he refused to identify the appellants. The taking place of incident as well as the presence of the aforesaid witnesses at the spot is admitted by him.
16. The only question which now remains to be considered is, as to whether the eye-witnesses correctly identified the appellants as the robbers beyond reasonable doubt. According to the prosecution case when Wall Muhammad P.W., was being deprived of his belongings by the appellants, Shah Muhammad, complainant, in the company of Tufail, arrived there and Tufail (deceased) asked the appellants if they had also adopted the ways of Falkoo ? He also declared that he had identi--fied them. This shows that Muhammad Tufail (deceased) besides having identified the robbers as Lalu and Yousaf, appellants, was also aware of their connections with Falku who, as suggested during the cross-examination to Shah Muhammad and Noor Khan, P. Ws., was uncle of Muhammad Yousaf, appellant. Wali Muhammad P. W., no doubt, stated that both the appellants were not known to him prior to the occurrence, but at the same time he averred that Shah Muhammad P.W., the first informant, had at once told him the names of both the robbers as Lalu and Yousaf with their addresses. He also accom--panied Shah Muhammad for making report to police wherein names of both the appellants were clearly mentioned. Sawar Khan P. W. Also stated to be not knowing the appellants before the occurrence, but he confidently asserted at the trial that the accused (appellants) present in Court had robbed him and other P.Ws., caused death of Tufail and also injured Noor Khan P.W. Noor Khan, the injured P.W., stated that be knew Yousaf, appellant, prior to the occurrence but had seen Lalu only at the time of occurrence. Admittedly, it was dark at the time of occurrence but all the witnesses repelled the suggestion that the robbers had muffled their faces or were not identifiable. Rather, they asserted that, the appellants' faces were uncovered and completely visible to them at he time of occurrence. Noor Khan P. W. Was attacked and injured with dagger by Yousaf, appellant. They were at arm's distance from each other then. Likewise, Tufail, deceased, when fired at was at point blank range. His injury also shows that he was fired at from the front side. It is on record that both Tufail (deceased) Shah Muhammad (informant) and Noor Khan P. W. Had exchanged arguments with the appellants.
Again Wali Muhammad, Sawar Khan, and Noor Khan, P. Ws., were searched and their belongings were snatched by them. It means that the witnesses had sufficient time to see the appellants from closer distance and, therefore, were in a position to identify them without any mistake. In the circumstances we are convinced that the witnesses had correctly) identified the appellants.
17. On the top of it, the F.I.R. Had been lodged with the police at 8-30 p.m., that is, within an hour after the occurrence at the police n station about 4 miles away from the spot. The F.I.R. Contains all the material details of the occurrence including the names of the appellants, he weapons, their specific roles, names of the witnesses who were robbed and also the details of property of which they were deprived of. Medical certificate of Noor Khan (injured P.W.) shows that he was examined a 7-45 p.m., that is, about 30 minutes after the occurrence. From the above narration it stands established that both the appellants were identified, by the P.Ws. At the spot and before the registration of the case, therefore, we are of the view that non-holding of test identification was neither necessary nor desirable arid this omission does not affect the prosecution case adversely at all.
18. It is not the grievance of the defence that the F.I.R. Had been drawn up after post-mortem examination of Tufail, deceased. There was no chance of substitution of the appellants because we are fully satisfied that the F.I.R. In this case is a document prepared, genuinely at the time and place it purported to be and the first informant as well as the eye-witnesses mentioned therein are the genuine eye-witnesses. Had they not seen the occurrence, then it would have not been possible to procure them in a short time to get the case registered as has been done in this case.
Also we find that trackers were joined in the investigation on the following day of the occurrence which was an attempt to locate and arrest the appellants and it was not an attempt to find out their identity, as suggested by the learned counsel.
19. The appellants' counsel next submitted that it does not seem probable that Shah Muhammad, complainant would have accompanied the deceased Tufail for Gagoo without any business for him to attend at that place on the day of occurrence. It is in the statement of Shah Muhammad that he had gone with the deceased for bringing the cycle back from Gagoo. The explanation appears to be quite reasonable and there is nothing unnatural or improbable in it. Shah Muhammad no doubt is maternal-uncle of Tufail, deceased, but his evidence cannot be thrown away because of his relationship with the deceased specially in the absence of any ill-will or animosity existing between him and the appellants. Furthermore, he has been supported by independent witnesses, namely, Wali Muhammad, Noor Khan and Sawar Khan P.Ws. There is no love-lost between them and the deceased and no enmity between them and the appellants. They appear to us straightforward and truthful witnesses. Their testimony does not suffer from any infirmity so as to render it unsafe to form basis for the conviction of the appellants.
20. The sum total of the above discussion is that in our view none else but the appellants in furtherance of their common intention robbed off Wali Muhammad, Swar Khan and Noor Khan Pathan, P.Ws., caused the death of Muhammad Tufail, deceased and made murderous assault on Noor Khan P. W., on the evening of 21st May, 1976 at culvert of Rajbah 3-L, Chak No. 193/E.B. They have been rightly convicted under sections .102/34, 307/34 and 392/394/34, P. P. C. And we maintain the same.
This brings us now to the question of sentence. The sentences awarded under sections 302/34, and 392/394/34, P.P.C. Are appro--priate and adequate and call for no interference. Regarding death sentence awarded to Lalu under section 302/ 34, P.P.C. It is observed that he while H committing robbery committed the murder in cold blood of Muhammad Tufail on the highway by firing in his chest and in these circumstances, we are clearly of the view that he richly deserves the capital sentence and we are least hesitant in confirming the same. As for Yousaf, appellant, we find that he equally shared the common intention with Lalu in committing the murder of Tufail, deceased, but because he avoided to give any injury to the deceased despite his being armed with a dagger, we feel disposed to commute his death sentence to life imprisonment.
22. The result is that the appeal fails, except that the sentence of death awarded to Yousaf, appellant, is commuted to life imprisonment. Reference to his extent is thus rejected whereas the death sentence of Lalu, appellant, is confirmed. The criminal revision filed by the com--plainant for enhancing the amount of fine and compensation awarded by the trial Court, being not pressed by the learned counsel for the complain--ant stands dismissed in liming.